/raid1/www/Hosts/bankrupt/CAR_Public/211007.mbx
C L A S S A C T I O N R E P O R T E R
Thursday, October 7, 2021, Vol. 23, No. 195
Headlines
4E BRAND: Court Partly Grants Bid to Dismiss Pepe Class Suit
ACT INC: Recent 1st Circuit Opinion Addresses Strategies for Suit
ACTIVISION BLIZZARD: Gross Law Firm Announces Class Action
ADS-MYERS INC: Dismissal of Barrios' Claims in Quiroz Suit Denied
AETNA INC: Faces Class Suit Over Alleged Discriminatory Policies
AFNI INC: Northern District of Illinois Dismisses Chisom FDCPA Suit
AGING IN PLACE: Ray Seeks to Recover Unpaid Overtime Compensation
ALAMEDA COUNTY, CA: Settlement Could Improve Health Care at Jails
ALBERTSONS COMPANIES: Dewse Sues Over Unlawful Labor Practices
ALLIED MEDICAL: Court Enters Scheduling Order in Weisgold Suit
AMAZON.COM: Vincenzeti Sues Over Unpaid Minimum and Overtime Wages
AMPLIFY ENERGY: Gutierrez Files Suit in C.D. California
ANHEUSER-BUSCH: Faces Class Suit Over Cacti Misleading Label Info
ANNOVIS BIO: Klein Law Firm Reminds of October 18 Deadline
ANTERO RESOURCES: Case Schedule in Grissom Suit Extended
APPHARVEST INC: Glancy Prongay Discloses Securities Class Action
APPHARVEST INC: Robbins Geller Reminds of November 23 Deadline
APPLE INC: Settles AppleCare Extended Warranty Class Action
ARTSANA USA: Faces Jimenez Suit Over Defective Booster Seats
ATI PHYSICAL: Faruqi & Faruqi Reminds of October 15 Deadline
BARNEY'S COLLEGE: Garcia Sues Over Unpaid Minimum, Overtime Wages
BAYOU STEEL: Court Certifies Class of Employees in Fleming Suit
BIRCH RESOURCES: Johnston Seeks to Recover Unpaid Overtime Wages
BLACKSTONE CONSULTING: Court Denies Bid to Stay Scott Suit
BOB'S DISCOUNT: Argenbright Sues Over Goof Proof Protection Plan
BOSTON BEER: Faruqi & Faruqi Reminds of November 15 Deadline
CARSON CLARKE: Deltona Transformer Files Suit in Fla. Cir. Ct.
CASSAVA SCIENCES: Faruqi & Faruqi Reminds of October 26 Deadline
CASSAVA SCIENCES: Johnson Fistel Reminds of October 26 Deadline
CENTRAL CALIFORNIA: $375K Class Deal in Urena Suit Wins Final Nod
CHARTER COMMUNICATIONS: Bid to Dismiss Hogans TCPA Suit Denied
CHRISTUS SPOHN: Olvera Sues Over Unpaid Straight-Time Compensation
CINCINNATI INSURANCE: Troy's Consolidated Amended Suit Dismissed
CITIZENS ARTS CLUB: Siliki Sues Over Unpaid Compensations
CONSTELLIS INTEGRATED: Hines Appeals Case Dismissal to 9th Cir.
CONVERGENT OUTSOURCING: Filing of Class Cert Bid Due Feb. 25, 2022
CORECIVIC INC: Settles Securities Class Action Lawsuit
CPT GROUP: Announces Proposed Settlement in a Class Action
CVS PHARMACY: Court Dismisses Fuog Class Suit With Leave to Amend
DELAWARE NORTH: Morand-Doxzon Appeals Partly OK'd Class Cert. Bid
DEVON ENERGY: Ct. Enters Class Certification Scheduling Order
DILLY KEY: Ramos Sues Over Failure to Pay Minimum, Overtime Wages
DOLLAR GENERAL: Hauger Sues Over Mislabeled Graham Crackers
DOLLAR GENERAL: Pays $1.8M to End Infants' False Ad Lawsuit
DYNCORP INT'L: Court Denies Bid to Certify Class in Del Fierro Suit
EARGO INC: Glancy Prongay Discloses Securities Class Action
EDEN CREAMERY: Court Tosses Kamal Bid for Voluntary Dismissal
EDUCATIONAL COMMISSION: Issue-Class Cert. in Russell Suit Vacated
ENCORE FLIGHT: Hajihassani Sues Over Shady Flight Training Course
EQT CORPORATION: Asbury Class Suit Remains Stayed
FASTENAL CO: Jackson Must Seek for Prelim. Approval of Class Deal
FORD MOTOR: "Death Wobble" Class Action Partly Dismissed
GANNETT CO: Kentucky Court Dismisses Love FLSA Suit With Prejudice
GARDNER TRUCKING: Leuzinger Suit Consolidated With Castro Suit
GENERAL MOTORS: Hit With Lawsuit Over Alleged Airbag Failures
GEO GROUP: Gets Class Action Over Alleged Drop of Stock Prices
GOOGLE LLC: California Court Narrows Claims in Best Carpet Suit
GRAMMER INDUSTRIES: Court Narrows Claims in Walton Class Suit
GRAND VIEW: Attorneys Assist Tenants to Fill Out Claim Forms
GREG STEPHEN: Judge OKs Class Action Lawsuit Over Sexual Abuse
INNOVAGE HOLDING: Glancy Prongay Discloses Securities Class Action
JPMORGAN CHASE: To Pay $15.7 Million to Settle Spoofing Class Suit
KENNEDY ENDEAVORS: Maeda's Bid to Exclude Butler Testimony Denied
KNOX COUNTY, TX: Must Enforce Mask Rule in Schools, Judge Rules
KONINKLIJKE PHILIPS: Court Stays Norman Suit Pending JPML Ruling
KONINKLIJKE PHILIPS: Penderghest Sues Over Defective Ventilators
KONINKLIJKE PHILLIPS: Faruqi & Faruqi Reminds of Oct. 15 Deadline
LOANCARE LLC: McClellan Sues Over Mortgage Servicing Practices
LONGFIN CORP: Malik Securities Class Suit Terminated as of Aug. 11
LUZERNE COUNTY, PA: Kids for Cash Scandal Lawsuit Ongoing
M AND E PIZZA: Little Sues Over Drivers' Unreimbursed Expenses
MASTER BUILDERS: Court Approves Settlement Deal in D'Aquin Suit
MDL 1869: BNSF Railway Brings Appeal to D.C. Cir.
MOHAWK INDUSTRIES: To File More Briefing on Remand Bid in Cruz Suit
NAT'L COLLEGIATE: Denies Motion to Dismiss College Athletes' Suit
NATHANIEL WOODS: Bid to Quash Writ of Garnishment in Bell Denied
NATIONSTAR MORTGAGE: Court Partly Excludes McNamee's Expert Report
NATIONWIDE AGRIBUSINESS: Smith Sues Over Vehicle's Unpaid Sales Tax
NATROL LLC: Vitello Appeals Summary Judgment Ruling to 8th Cir.
NATURE'S BOUNTY: Baines Sues Over Mislabeled Fish Oil Supplements
NATURECHEM INC: Bid for Summary Judgment Junked w/o Prejudice
NEW YORK, NY: Class Action Over Sealed Arrest Records Pending
NEW YORK: Second Circuit Appeal Filed in Gulino Suit re Serreti
NEWLINK GENETICS: Attorneys' Fees & Expenses Awarded in Nguyen Suit
NOVO NORDISK: Inks $100M Settlement Over Insulin Pricing Class Suit
OLAM SPICES: Class Settlement in Beltran Suit Wins Prelim. Approval
ORGAIN LLC: New York Court Dismisses Jones' 1st Amended Class Suit
PERI & SONS: Bid to Consolidate Guzman With PAGA Action Denied
POLARITYTE INC: Pomerantz Law Reminds of November 23 Deadline
PORTFOLIO RECOVERY: New Jersey Court Narrows Claims in North Suit
S.C. JOHNSON: Rivera Class Suit Dismissed With Leave to Amend
SABOR TROPICAL: Ramirez Sues Over Delivery Workers' Unpaid Wages
SOUTH CENTRAL: Hearing on Class Action Suit for Students Delayed
ST. ELIZABETH: Obtains Favorable Ruling in Vaccine Rule Lawsuit
STATE FARM: New Jersey Court Dismisses Fox's Amended Class Suit
TAWKIFY INC: Stanfield Appeals Summary Judgment Ruling to 9th Cir.
TRAVELERS INDEMNITY: Poughkeepsie Suit Dismissed With Prejudice
TRIHEALTH INC: Court Dismisses Forman's Amended Class Complaint
UNITED AIRLINES: Faces Employee Discrimination Lawsuit in Texas
VELVET YOGURT: Faces Perez Suit Over Failure to Pay Proper Wages
VERSACE BERTONI: Fails to Pay Proper Overtime Wages, Barboza Says
WAITR HOLDINGS: Wins Partial Summary Judgment in Bobby's Suit
WASHINGTON, DC: Female Officers Accuse of Discrimination in Lawsuit
[*] Andalucia Supreme Court Orders Into Pending Class Actions
[*] Class Action Lawsuit Launched on Behalf of Indigenous Mothers
*********
4E BRAND: Court Partly Grants Bid to Dismiss Pepe Class Suit
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In the case, KATHERINE PEPE, PATRICIA DONADIO, JUNE VONDERCHEK, and
JOSEPH SANDERS on behalf of themselves and all others similarly
situated, Plaintiffs v. 4E BRAND NORTH AMERICA, LLC, Defendant,
Case No. 20 CV 6494 (VB) (S.D.N.Y.), Judge Vincent L. Briccetti of
the U.S. District Court for the Southern District of New York
granted in part and denied in part the Defendant's motion to
dismiss the consolidated class action complaint pursuant to Rule
12(b)(6).
Specifically, Plaintiffs Pepe, Donadio, and Vonderchek's claims for
breach of express warranty and violations of New York's General
Business Law Sections 349 and 350 will proceed. Plaintiff Sanders'
claims for breach of express warranty, breach of implied warranty
of fitness and merchantability, and violations of the New Jersey
Consumer Fraud Act, N.J.S.A. 56: 8-1 et seq., may also proceed. All
other claims are dismissed.
The Defendant's time to file an answer was Oct. 6, 2021.
A telephone conference is scheduled for Oct. 22, 2021, at 2:30
p.m., at which time the Court will issue a bench ruling explaining
the basis for its decision. The conference will also serve as an
initial conference in the matter. All the counsel will use the
following information to connect by telephone:
Dial-In Number: (888) 363-4749 (toll free) or (215) 446-3662
Access Code: 1703567
By Oct. 15, 2021, the counsel will file on the ECF docket their
proposed Civil Case Discovery Plan and Scheduling Order, a blank
copy of which will be attached to the Notice of Initial Conference.
The Notice will be separately docketed.
The Clerk is instructed to terminate the motion.
A full-text copy of the Court's Sept. 22, 2021 Order is available
at https://tinyurl.com/3atkhc83 from Leagle.com.
ACT INC: Recent 1st Circuit Opinion Addresses Strategies for Suit
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On August 30, 2021, the U.S. Court of Appeals for the First Circuit
issued a decision in Bais Yaakov of Spring Valley v. ACT, Inc. that
addresses how plaintiffs can satisfy the predominance requirement
in federal class actions. (The opinion ("Op.") is available here).
The decision held that on the facts of this case, the plaintiff
could not establish predominance because individualized proof would
be required on at least one element of the claim. The decision
follows on the heels of an earlier decision where the First Circuit
ruled against plaintiffs on a predominance dispute. In re Asacol
Antitrust Litig., 907 F.3d 42 (1st Cir. 2018). These two cases
create a high bar for plaintiffs to overcome defendants' submission
of declarations or other evidence substantiating an actual need to
litigate an issue using individualized evidence.
Bais Yaakov arose under the Telephone Consumer Protection Act
(TCPA). The TCPA prohibits sending advertisements by fax, unless
the advertisement was either 1) sent pursuant to prior express
permission or invitation of the recipient; or 2) the advertisement
meets certain formatting requirements, including the presence of an
opt-out notice in the advertisement. See 47 U.S.C. Sec 227(a)(5),
227(b)(1)(C). The statute provides for penalties of up to $1,500
per violation, which can quickly add up given the usually high
volume of fax advertisements. 47 U.S.C. Sec 227(b)(3). Plaintiff, a
small private high school, sent a request form to ACT in order to
permit students' ACT test scores to be reported to the school. Op.
at 3. The school provided its fax number on the form and checked a
box stating that the school wanted to receive SAT and ACT
publications. Id. Seven years later, ACT sent three faxes to Bais
Yaakov. Id. Two of the faxes promoted registration to take the ACT,
while the third invited the school to sign up as an ACT test
administration venue. Id. at 3-4. Bais Yaakov then brought a TCPA
suit against ACT on behalf of a putative class of approximately
7,000 schools. Id. at 4. Bais Yaakov alleged that ACT sent
approximately 28,000 faxes that transgressed the TCPA. Id.
The district court denied Bais Yaakov's motion for class
certification. Id. at 8. The court concluded that determining
whether the faxes were sent with the prior express permission of
the recipients would require individualized examination of the
class members' individual communications with ACT. Id. at 7. Thus,
common issues would not predominate and the class could not be
certified pursuant to Rule 23(b)(3) of the Federal Rules of Civil
Procedure. Op. at 7. The court reached this conclusion in large
part based on declarations (submitted by ACT) from seventy-eight
putative class members stating that they provided ACT with their
fax numbers, that they received communications via fax that were
integral to their relationship with ACT, and that they would have
given permission to send such information via fax. Id. at 20-21.
Bais Yaakov appealed and the First Circuit affirmed the denial of
class certification. The court held that the predominance inquiry
turned on whether "the record reasonably shows that some putative
class members" gave ACT permission to send the faxes and, if so,
whether "there is a fair and efficient method for culling those
consenting recipients from the class." Id. at 16. The court
emphasized the importance of the declarations from the
seventy-eight putative class members, which highlighted the
differing positions of different putative class members regarding
whether they had given ACT permission to send faxes. Id. at 20-21.
The court concluded that, based on this evidence, the district
court did not abuse its discretion in holding that there would be
putative class members that consented to the faxes. Id. at 24. The
First Circuit further held that Bais Yaakov raised no argument that
there was a feasible way to cull those members from the class. Id.
at 24-25.
In a concurring opinion, Circuit Judge Barron addressed the
implications of the court's decision on plaintiffs' ability to
satisfy the predominance requirement more generally. In light of
the First Circuit's decision and its earlier, similar decision in
In re Asacol Antitrust Litig., 907 F.3d 42 (1st Cir. 2018), some
commentators have questioned whether plaintiffs could ever satisfy
the predominance requirement if the defendant merely contends that
it needs to challenge class members' testimony on an individual
basis. Judge Barron's concurrence pushes back against that argument
and identifies potential situations where he might hold that a
plaintiff can establish predominance even though the defendant
contends that individual proof is required. He contends that Asacol
and Bais Yaakov do not establish a per se rule that predominance
cannot be satisfied whenever a defendant announces an intent to
contest class members' testimony individually. Op. at 40. Rather,
in Judge Barron's view, the court must make a "predictive
assessment" of how the case would actually be litigated. Id. at 41.
In making that assessment, the concurrence says that the court must
look at whether such litigation would actually result in
inefficiency (such as a large number of class members needing to
testify about individual issues) or unfairness (such as infringing
defendants' rights to present individualized evidence in order to
avoid inefficiency). Id.
After Asacol, many commentators viewed the First Circuit as a
difficult place for class action plaintiffs to win class
certification. The Bais Yaakov decision will likely reinforce that
view. ACT effectively used declarations from putative class members
to establish that different class members were differently situated
regarding an element of the claim and to illustrate that
individualized proof would be required on that element. By
observing that courts should not just rest on defendants' word that
individualized issues defeat predominance, the concurring opinion
further highlights how important it is for defendants to supplement
their class certification evidence with declarations or other
supporting evidence, where appropriate. Whether and if plaintiffs
can successfully rebut an argument against certification that is
supported with such evidence remains to be seen in future cases.
But the First Circuit's decisions so far suggest that where
defendants' evidence demonstrates a real need for individualized
assessments, the predominance standard is difficult for class
action plaintiffs to satisfy. [GN]
ACTIVISION BLIZZARD: Gross Law Firm Announces Class Action
----------------------------------------------------------
The securities litigation law firm of The Gross Law Firm issues the
following notice on behalf of shareholders in the following
publicly traded companies. Shareholders who purchased shares in the
following companies during the dates listed are encouraged to
contact the firm regarding possible Lead Plaintiff appointment.
Appointment as Lead Plaintiff is not required to partake in any
recovery.
Activision Blizzard, Inc. (NASDAQ:ATVI)
Investors Affected: August 4, 2016 - July 27, 2021
A class action has commenced on behalf of certain shareholders in
Activision Blizzard, Inc. The filed complaint alleges that
defendants made materially false and/or misleading statements
and/or failed to disclose that: (1) Activision Blizzard
discriminated against women and minority employees; (2) Activision
Blizzard fostered a pervasive "frat boy" workplace culture that
continues to thrive; (3) numerous complaints about unlawful
harassment, discrimination, and retaliation were made to human
resources personnel and executives which went unaddressed; (4) the
pervasive culture of harassment, discrimination, and retaliation
would result in serious impairments to Activision Blizzard's
operations; (5) as a result of the foregoing, the Company was at
greater risk of regulatory and legal scrutiny and enforcement,
including that which would have a material adverse effect; (6)
Activision Blizzard failed to inform shareholders that the
California Department of Fair Employment and Housing had been
investigating Activision Blizzard for harassment and
discrimination; and (7) as a result, Defendants' statements about
Activision Blizzard's business, operations, and prospects, were
materially false and misleading and/or lacked a reasonable basis at
all relevant times.
Shareholders may find more information at
https://securitiesclasslaw.com/securities/activision-blizzard-inc-loss-submission-form/?id=19872&from=1
Yalla Group Limited (NYSE:YALA)
Investors Affected: September 30, 2020 - August 9, 2021
A class action has commenced on behalf of certain shareholders in
Yalla Group Limited. The filed complaint alleges that defendants
made materially false and/or misleading statements and/or failed to
disclose that: the Company overstated its user metrics and revenue
and, as a result, the Company's public statements were materially
false and misleading at all relevant times.
Shareholders may find more information at
https://securitiesclasslaw.com/securities/yalla-group-limited-loss-submission-form/?id=19872&from=1
Annovis Bio, Inc. (NYSE American:ANVS)
Investors Affected: May 21, 2021 - July 28, 2021
A class action has commenced on behalf of certain shareholders in
Annovis Bio, Inc. The filed complaint alleges that defendants made
materially false and/or misleading statements and/or failed to
disclose that: (1) Annovis's ANVS401 (Posiphen), an orally
administrated drug which purportedly inhibited the synthesis of
neurotoxic proteins that are the main cause of neurodegeneration,
did not show statistically significant results across two patient
populations as to factors such as orientation, judgement, and
problem solving; and (2) as a result of the foregoing, Defendants'
positive statements about the Company's business, operations, and
prospects were materially misleading and/or lacked a reasonable
basis.
Shareholders may find more information at
https://securitiesclasslaw.com/securities/annovis-bio-inc-loss-submission-form/?id=19872&from=1
The Gross Law Firm is committed to ensuring that companies adhere
to responsible business practices and engage in good corporate
citizenship. The firm seeks recovery on behalf of investors who
incurred losses when false and/or misleading statements or the
omission of material information by a Company lead to artificial
inflation of the Company's stock. Attorney advertising. Prior
results do not guarantee similar outcomes.
CONTACT:
The Gross Law Firm
15 West 38th Street, 12th floor
New York, NY, 10018
Email: dg@securitiesclasslaw.com
Phone: (212) 537-9430
Fax: (833) 862-7770 [GN]
ADS-MYERS INC: Dismissal of Barrios' Claims in Quiroz Suit Denied
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In the case, JENNY QUIROZ, et al., Plaintiffs v. ADS-MYERS, INC.,
et al., Defendants, Case No. 20-cv-01755-JD (N.D. Cal.), Judge
James Donato of the U.S. District Court for the Northern District
of California denied ADS' motion to dismiss the claims of named
Plaintiff Brayan Barrios.
Two motions are pending in the putative class action lawsuit
against Defendants ADS-MYERS and Karoline Myers (collectively, ADS)
for alleged violations of federal and California state wage and
hour laws. ADS asked to compel arbitration of named Plaintiff
Quiroz's claims pursuant to an arbitration agreement in an
employment contract. That motion raised contract formation
questions requiring a bench trial. The Court will file shortly the
findings of fact and conclusions of law for the bench trial.
Judge Donato's Order resolves ADS's motion to dismiss the claims of
named Plaintiff Barrios under Federal Rule of Civil Procedure
12(b)(1). Barrios is not said to have signed a contract with an
arbitration agreement, and so the arbitration order will affect
only Quiroz and her claims.
The thrust of ADS' motion is that Barrios lacks standing to sue
because he was never an ADS employee.
Judge Donato denies the motion. His reason for the denial is
straightforward. The second amended complaint (SAC) alleges that
Barrios was "employed" by ADS as a janitor, that he was a
"non-exempt employee," and that he "regularly worked more than
eight (8) hours in a workday" and "more than 40 hours per workweek"
for ADS. ADS proffered evidence indicating that it has no records
of employing Barrios. It responded with representations that he
will be able to demonstrate an employment relationship with ADS.
This is a quintessential dispute of fact that the Court declines to
resolve in the Rule 12(b) context. Judge Donato says, this outcome
is particularly warranted under Rule 12(b)(1) when, as in the case,
"the jurisdictional issue and substantive issues are so intertwined
that the question of jurisdiction is dependent on the resolution of
factual issues going to the merits of an action."
The better course of action is a motion for summary judgment based
on a well-developed factual record. Consequently, the motion is
denied without prejudice. ADS may file a summary judgment motion as
developments warrant.
A full-text copy of the Court's Sept. 24, 2021 Order is available
at https://tinyurl.com/93ydzbvk from Leagle.com.
AETNA INC: Faces Class Suit Over Alleged Discriminatory Policies
----------------------------------------------------------------
Heather Landi at fiercehealthcare.com reports that insurance giant
Aetna has been hit with a class-action lawsuit over mental health
parity as the demand for behavioral health services ramps up during
the COVID-19 pandemic.
The complaint, which was filed in U.S. District Court in the
Central District of California, alleges that Aetna illegally denied
claims for mental health residential treatment services.
In 2019, the plaintiff, who has an Aetna insurance plan through his
employer, Fox Entertainment Group, enrolled his 16-year-old son who
has autism spectrum disorder in a mental health residential
treatment center located in Utah, according to the complaint.
Aetna denied the plaintiff's claim for reimbursement for his son's
treatment at the residential facility.
The complaint alleges that Aetna imposes a set of internally
developed criteria to determine which residential treatment
facilities receive coverage that are far more restrictive than
generally accepted professional standards to "minimize the number
of claims accepted and thereby maximizing Aetna's own profits,"
according to the lawsuit.
"Unfortunately, in administering the Aetna Plans, Aetna treats
mental health as less important than physical health," the
plaintiff said in the complaint.
According to Aetna's letter to the plaintiff, as cited in the
complaint, the insurer said it was denying coverage because the
facility is not accredited by an agency such as The Joint
Commission, the Committee on Accreditation of Rehabilitation
Facilities, the American Osteopathic Association's Healthcare
Facilities Accreditation Program or the Council on Accreditation.
Aetna also said the mental health residential treatment center is
not covered under the terms of the plan because a behavioral
provider is not actively on duty 24 hours per day for 7 days a week
and the patient is not treated by a psychiatrist at least once per
week but on an as-needed basis.
"This class action claims that Aetna is not following the law
because it is imposing more stringent standards for mental health
providers to receive coverage than for some hospitalizations,"
attorney Brian Adesman, who is representing the plaintiff, told
Fierce Healthcare.
"The standards they are using and the requirements for mental
health facilities don't exist for surgical benefits or physical
health benefits. Our client appealed it, and each time Aetna came
back and said you don't meet the requirements and refused to cover
the cost," he said.
The complaint is brought by attorneys Adesman, Omar Qureshi and L.
David Russell.
In a statement provided to Fierce Healthcare, an Aetna spokesman
said, "While we're not commenting on this pending litigation at
this time, we take mental wellbeing very seriously. It is an
enterprise priority that drives partnerships with organizations,
providers and employers to improve mental health care nationwide."
The spokesman added, "Aetna was an early advocate of the passage of
the Mental Health Parity and Addiction Equity Act (MHPAEA) in 2008,
as well as legislative efforts that predate MHPAEA. We view the law
as a landmark achievement for mental health. We will continue to be
a strong advocate of the law and for comprehensive access to mental
health resources that are covered by our health plans."
In the complaint, the plaintiff alleges that having more stringent
standards for mental health treatment coverage violates the Mental
Health Parity and Addiction Equity Act of 2008, also called the
Parity Act, and the Employee Retirement Income Security Act
(ERISA).
The Parity Act aims to block insurers from hindering access to
behavioral health. While the Parity Act does not require health
care plans to cover mental health services, if a plan chooses to
cover mental health services, such coverage must be provided "at
parity" with medical and surgical benefits, Adesman said.
"Our class action seeks to remedy that and asks Aetna to create
more fair standards that are at parity with physical health
standards and reprocess all the [plaintiff's] claims they denied
for mental health," the complaint said.
The complaint does not specify how much the plaintiff spent in
out-of-pocket medical costs for the mental health residential
treatment center as a result of Aetna's denial of coverage.
So far, the plaintiff is the only class representative named in the
complaint but Adesman said the class-action lawsuit could be
amended to add other Aetna plan members who have been denied
coverage for mental health treatment.
As of September 30, 2018, Aetna had approximately 22.1 million
medical members and a "great number of these medical members
belonged to Aetna Plans and were denied coverage for all or a
portion of residential treatment for mental health disorders,"
representing "a substantial number" of proposed class members, the
complaint states.
UnitedHealthcare also was hit with a lawsuit from state and federal
regulators over mental health parity. The insurer will pay a hefty
settlement, to the tune of $15.6 million, to settle federal and
state investigations, the Department of Labor announced in August.
The settlement includes $13.6 million in payments to members for
wrongfully denied claims as well as just over $2 million in
penalties and lawyers fees, DOL said.
An investigation by DOL's Employee Benefits Security Administration
found that UnitedHealth would reduce reimbursement rates for
out-of-network behavioral health services and would flag members
who were undergoing mental health treatment for utilization
reviews.
"Insurance companies are not above the law and profits can't come
before people," Adesman said.
The number of people looking for help to cope with anxiety and
depression has skyrocketed in 2020.
"People are in need of mental health services more than ever as the
COVID-19 pandemic has only exacerbated this trend. It's time for
insurance companies to take their fiduciary duties seriously,"
Adesman said. [GN]
AFNI INC: Northern District of Illinois Dismisses Chisom FDCPA Suit
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In the case, CHERYL CHISOM, on behalf of herself and all others
similarly situated, Plaintiff v. AFNI, INC., Defendant, Case No.
20-cv-06565 (N.D. Ill.), Judge John Robert Blakey of the U.S.
District Court for the Northern District of Illinois, Eastern
Division, grants Afni's motion to dismiss.
Background
The Plaintiff incurred an alleged debt for residential cable
services provided by Comcast. When she failed to pay on the
account, the alleged debt went into default. Defendant Afni
attempted to collect the alleged debt and sent a collection letter
to the Plaintiff on Oct. 19, 2020.
When Afni mailed the Letter, neither it nor COMCAST could sue the
Plaintiff to collect the alleged debt because the statute of
limitations on the debt had run. Additionally, at the time Afni
mailed the Letter, no judgment had been entered on the alleged
debt. Afni thus could not have obtained a copy of a judgment with
respect to the alleged debt and mailed it to her as represented in
the Letter.
The Plaintiff claims that Defendant's conflicting statements
confused her. While the Letter referenced the possibility of
obtaining and mailing a copy of a judgment on the debt, the Letter
also stated that neither the Defendant nor COMCAST could legally
sue her to collect the alleged debt, implying that no judgment
could be obtained. THe Defendant's reference to a judgment made her
believe either that a judgment with respect to the alleged debt had
already been entered or that Afni or COMCAST was in the process of
obtaining a judgment or could obtain a judgment in the future.
The Plaintiff alleges that she was also confused by Defendant's
statement in the Letter warning her that if she failed to pay the
debt, the Defendant could continue credit reporting "for as long as
the law permits this reporting." She did not know that if she
disputed the debt within 30 days, the law required the Defendant to
stop credit reporting and verify the debt. She claims that the
Defendant's statement overshadowed any disclosure of her right to
dispute the alleged debt within the 30-day validation period.
Finally, the Plaintiff asserts she was confused by the Defendant's
statements regarding how to "renew" the alleged debt. The Defendant
failed to explain what "renew the debt" meant, and the Plaintiff
did not understand that by making or attempting to make a payment
on the alleged debt, she would restart the statute of limitations
on the debt and authorize Defendant or COMCAST to sue her on the
alleged debt.
The Plaintiff did not believe she owed the alleged debt discussed
in the Letter, and, had she not been confused by Afni's statements,
she would have opted to dispute or verify it; instead, because the
Defendant's statements confused her, Plaintiff did not dispute or
verify the alleged debt as was her right.
The Plaintiff sued on behalf of a putative class claiming the
Defendant violated Section 1692 of the FDCPA. More specifically, in
her single count, the Plaintiff alleges that the Defendant violated
Sections 1692e, 1692e(2)(A), 1692e(5), 1692e(10), and 1692f of the
FDCPA when it stated it could obtain a copy of a judgment with
respect to the alleged debt and mail it to the Plaintiff, when the
Defendant knew it could not legally do so.
The Plaintiff also alleges that the Defendant violated sections
1692e(2)(A) and 1692g(b) of the FDCPA when it stated that it could
report the alleged debt to a credit reporting agency for as long as
the law permits, when in fact she could have stopped the
Defendant's credit reporting by disputing the debt within 30 days.
The Defendant moves to dismiss under Federal Rule of Civil
Procedure 12(b)(1), arguing that the Plaintiff lacks standing to
sue, and under Rule 12(b)(6), arguing that her allegations fail to
state a claim for violation of the FDCPA.
Discussion
The FDCPA prohibits a debt collector from using "any false,
deceptive, or misleading representation or means in connection with
the collection of any debt." The Plaintiff invokes Sections
1692e(2)(A), (5), and (10). She alleges that Afni: represented that
"it could obtain a copy of a judgment and mail it to her when it
knew it could not legally do so,"; and "misrepresented the legal
status of an alleged debt and threatened an action it did not
intend to take" and legally could not take. The Plaintiff alleges
that the Defendant stated that upon written request it would obtain
a copy of a judgment and mail it to Plaintiff, when it knew no such
judgment existed or was legally possible to obtain.
The Plaintiff also claims the Defendant violated Section 1692f,
which prohibits a debt collector from using "unfair or
unconscionable means to collect or attempt to collect any debt." In
connection with this section, the Plaintiff again relies upon
Afni's statement that it would obtain a copy of a judgment and mail
it to her when it knew it was legally impossible for it do so. The
Plaintiff also alleges that a judgment was neither applicable, nor
legally available, because the statute of limitations had run on
the alleged debt.
The Defendant moves to dismiss both for lack of standing and for
failure to state a claim upon which relief may be granted.
A. Defendant's Rule 12(b)(1) Motion to Dismiss for Lack of
Standing
The Defendant first argues that the Plaintiff lacks Article III
standing because she did not sufficiently plead any concrete injury
in fact and instead alleged a bare procedural violation of the
FDCPA. The Plaintiff disagrees, arguing that the confusing and
misleading content of the Letter caused her to forego her right to
seek verification of the debt, which sufficiently establishes a
concrete injury in fact.
Judge Blakey finds that the Plaintiff alleges that she did not
believe she owed the alleged debt and would have disputed the debt
or sought verification of the debt had she not been confused by the
language in the Defendant's Letter. Thus, the Plaintiff alleges
more than just a procedural violation; she alleges that the
Defendant's confusing language harmed "the concrete interest that
the statute protected" -- namely, her right to dispute or verify
her supposed debts to avoid the use of abusive debt collection
practices.
Article III's "strictures are met not only when a plaintiff
complains of being deprived of some benefit, but also when a
plaintiff complains that she was deprived of a chance to obtain a
benefit." An informational injury -- withholding information when a
statute requires its disclosure -- satisfies Article III "if the
plaintiff establishes that concealing information impaired her
ability to use it for a substantive purpose that the statute
envisioned."
By pleading that her confusion led her to forego her statutory
right to dispute the alleged debt, Judge Blakey holds that the
Plaintiff has alleged a concrete injury in fact, and he declines to
dismiss her amended complaint for lack of standing.
B. Defendant's Rule 12(b)(6) Motion to Dismiss Any Claim under
Sections 1692e and 1692f
The Plaintiff alleges that the Defendant violated Section 1692e and
Section 1692f of the FDCPA, claiming the Defendant's contradicting
statements regarding the possible attainment of a judgment with
respect to the alleged debt were unfair and misleading. The
Defendant moves to dismiss the Plaintiff's claim in its entirety,
arguing that the Plaintiff has failed to state a claim for
violation of either section; Defendant argues that her claim,
whether based in Section 1692e or Section 1692f, is implausible and
predicated on a bizarre and idiosyncratic reading of the
Defendant's Letter, which it claims is patently not confusing to
the unsophisticated consumer.
Judge Blakey finds the Letter plainly and clearly not misleading or
unfair on its face. As a result, any claim for violation of
Sections 1692e or 1692f fails, and the Judge grants the Defendant's
motion to dismiss with respect to both claims.
C. Defendant's Rule 12(b)(6) Motion to Dismiss Any Claim under
Section 1692g(b)
The Plaintiff also alleges that the Defendant overshadowed its
disclosure of the Plaintiff's right to dispute the alleged debt, in
violation of Section 1692g(b), when the Defendant stated it would
report the debt "for as long as the law permits" if she failed to
pay. The Defendant argues that any claim under Section 1692g(b)
fails because the statement did not overshadow the disclosure but
simply warned the Plaintiff of the potential consequences of not
paying the alleged debt.
Judge Blakey finds that the Defendant's letter stated that it would
continue credit reporting "for as long as the law permits" if
Plaintiff failed to pay but also clearly stated that Plaintiff had
30 days to dispute the debt. He says, the Defendant's Letter did
not demand immediate payment and thus did not overshadow the amount
of time remaining in the verification period. As a result, the
Judge finds that the Plaintiff cannot state an overshadowing claim
based upon the challenged language. To the extent she has intended
to allege a separate claim for violation of Section 1692g(b), her
claim fails, and the Judge grants the Defendant's motion to dismiss
any claim under this section.
Conclusion
For the reasons he explained, Judge Blakey grants the Defendant's
motion to dismiss for failure to state a claim and directs the
Clerk to enter judgment of dismissal. The civil case is
terminated.
A full-text copy of the Court's Sept. 24, 2021 Memorandum Opinion &
Order is available at https://tinyurl.com/ztsx9pz5 from
Leagle.com.
AGING IN PLACE: Ray Seeks to Recover Unpaid Overtime Compensation
-----------------------------------------------------------------
Andrea Ray and Hannah Inman, individually and on behalf of all
others similarly situated v. Aging in Place LLC, and Sherri
McMeans, Individually, Case No. 4:21-cv-00715-WBG (W.D. Mo., Oct.
4, 2021), is brought under the Fair Labor Standards Act to seek
unpaid overtime compensation.
According to the complaint, the Defendants misclassified Plaintiffs
as independent-contractors and failed to pay them overtime
compensation under the FLSA. The Defendants improperly classified
Plaintiffs and other Care Givers and improperly withheld overtime
compensation from Plaintiffs and all other Care Givers. All Care
Givers are similarly situated and are all subject to Defendants'
policy and practice that designated and/or treated them as
independent contractors and fail to compensate them for overtime
hours worked in excess of 40 per week. The Plaintiffs regularly
worked in excess of 40 hours per week, but they were not
compensated at a rate of at least one and one half times her
regular rate for hours worked in excess of 40 in a workweek, says
the complaint.
The Plaintiffs worked for Defendants as Care Givers.
The Defendants are a provider of Home Care for disabled and
physically challenged individuals by providing various service
through its Care Givers.[BN]
The Plaintiffs are represented by:
Barry R. Grissom, Esq.
Jacob D. Miller, Esq.
GRISSOM MILLER LAW FIRM, LLC
1600 Genessee Street, Suite 460
Kansas City, MO 64102
Phone: 816.336.1213
Fax: 816.384.1623
Email: barry@grissommiller.com
jake@grissommiller.com
ALAMEDA COUNTY, CA: Settlement Could Improve Health Care at Jails
-----------------------------------------------------------------
localnewsmatters.org reports that U.S. Magistrate Judge Nathanael
Cousins preliminarily approved a settlement in a federal class
action lawsuit against Alameda County over mental health care at
Santa Rita Jail in Dublin and at any other Alameda County jail.
Cousins approved the settlement preliminarily at a virtual hearing
before attorneys for both sides.
"I am inclined to approve the settlement," Cousins told the
attorneys and others present at the hearing.
The judge also agreed to extend the date for the final approval to
Jan. 19. The hearing for the final approval was previously set for
Dec. 15. The extended time will give attorneys more time to educate
the jail's incarcerated people on the agreement and more time for
people to raise objections to the settlement if they choose to.
"This has been an extensive process that will make our jail safer
for staff and those in custody while addressing the specific needs
of our population."
Sgt. Ray Kelly, Alameda County Sheriff's Office
The settlement will require sweeping changes at the jail, not only
for people with psychiatric disabilities but for incarcerated
people in general. Changes will be made over the next two years and
the agreement will be in effect for six years, depending on the
progress made.
Besides mental health care, changes will be made to out-of-cell
time, ADA accommodations at the jail for people with mental health
disabilities, use of force, discharge planning and among other
things suicide prevention.
Recent suicides at the jail prompted the lawsuit. Nineteen people
died by suicide since 2014 and 31 more died at the jail from other
causes. Fifty deaths are a lot for a jail with a population the
size of Santa Rita, attorneys for the incarcerated people at Santa
Rita said.
Attorney Jeff Bornstein, one of the attorneys representing the
jail's inmates, said significant changes need to be made and they
are underway.
Already, a lot fewer people are in restrictive housing, he said.
But, he said, "We have a long way to go."
"We're cautiously optimistic," he said.
Beyond minimum standards
The goal is to make things right at the jail rather than simply
meeting the minimum requirements for the treatment of the
incarcerated people there, Bornstein said.
He said it would be great if people with mental illness didn't have
to go to jail at all.
A big issue addressed in the agreement is how incarcerated people
are treated when they are released. In the past, they have been
turned out onto the streets.
Under the settlement, former inmates with serious mental health
issues will get a "warm handoff" to community-based providers who
can help secure needed resources for them when they are released.
Besides the provision of adequate mental health care, the agreement
calls for adequate out-of-cell time each day, including increasing
out-of-cell time in the first three months of the agreement.
The agreement also calls for measures to prevent suicide and
self-harm among incarcerated people, including limiting the use of
safety cells -- a small room with nothing but a grate in the floor.
The county will be building suicide-resistant cells as part of the
agreement and limiting the use of and hopefully phasing out safety
cells, Bornstein said.
In all, seven major changes are in store for incarcerated people at
the jail. Progress at the jail will be monitored by joint neutral
experts and attorneys.
"Our agency is in full support and agreement," Alameda County
Sheriff's Office spokesman Sgt. Ray Kelly said. "This has been an
extensive process that will make our jail safer for staff and those
in custody while addressing the specific needs of our population.
"The agreement will bring much needed improvements and resources to
our criminal justice system in Alameda County," he said. [GN]
ALBERTSONS COMPANIES: Dewse Sues Over Unlawful Labor Practices
--------------------------------------------------------------
ALLISON DEWSE, an individual, on behalf of herself, and on behalf
of others similarly situated, Plaintiff v. ALBERTSONS COMPANIES,
INC., a Delaware corporation, and DOES 1-100, inclusive;
Defendants, Case No. 37-2021-00040943-CU-OE-CTL (Cal. Super., San
Diego Cty., Sept. 24, 2021) arises from the Defendants' failure to
pay proper overtime wages, failure to timely pay wages when due,
failure to provide accurate itemized wage statements, failure to
reimburse expenses, and for underpaid wages, in violation of the
California's Labor Code.
Ms. Dewse was employed by the Defendant as a non-exempt, full-time
employee, specializing in cake decoration at a Vons grocery store
in El Cajon, California, from approximately December 2019 through
November 2020.
Albertsons Companies, Inc. is an American grocery company founded
and headquartered in Boise, Idaho.[BN]
The Plaintiff is represented by:
Craig M. Nicholas, Esq.
Shaun Markley, Esq.
Jake Schulte, Esq.
NICHOLAS & TOMASEVIC, LLP
225 Broadway, 19th Floor
San Diego, CA 92101
Telephone: (619) 325-0492
Facsimile: (619) 325-0496
E-mail: cnicholas@nicholaslaw.org
smarkley@nicholaslaw.org
jschulte@nicholaslaw.org
- and -
Noam Glick, Esq.
GLICK LAW GROUP, PC
225 Broadway, 19th Floor
San Diego, CA 92101
Telephone: (619) 382-3400
Facsimile: (619) 393-0154
E-mail: noam@glicklawgroup.com
ALLIED MEDICAL: Court Enters Scheduling Order in Weisgold Suit
--------------------------------------------------------------
In the class action lawsuit captioned as DEAN E. WEISGOLD, P.C., a
Pennsylvania Corporation, individually and on behalf of all others
similarly situated, v. ALLIED MEDICAL ASSOCIATES P.C., DR. BRYAN H.
EHRLICH, and JOHN DOES 1-2, Case No. 2:21-cv-01664-KSM (E.D. Pa.),
the Court entered a scheduling order as follows:
1. Counsel shall participate in a settlement conference to be
scheduled by Magistrate Judge Marilyn Heffley in November
2021, if practicable.
2. All motions to amend the pleadings and to join or add
additional parties shall be filed no later than September
23, 2021.
3. All fact discovery shall be completed no later than
February 10, 2022. The parties shall submit a letter the
Court identifying the dates that they have set aside for
depositions by no later than September 23, 2021.
4. Counsel for each party shall serve upon counsel for every
other party the information referred to in Federal Rule of
Civil Procedure 26(a)(2)(B) by expert report or answer to
expert interrogatory no later than March 10, 2022. If the
evidence is intended solely to contradict or rebut
evidence on the same subject matter identified by another
party, counsel shall serve the information on counsel for
every other party no later than April 11, 2022. Expert
depositions, if any, shall be concluded no later than May
11, 2022.
5. Any party expecting to offer opinion testimony from lay
witnesses pursuant to Federal Rule of Evidence 701 with
respect to the issues of liability and damages shall, at
the time required for submission of information and/or
reports for expert witnesses on liability and damages set
forth in the preceding paragraph, serve opposing parties
with concise details and/or documents covering the lay
opinions of the Rule 701 witnesses, including the identity
of each witness offering the expert opinion, the substance
and the basis for each opinion.
6. Plaintiff shall file his motion for class certification no
later than June 13, 2022.
7. Defendant shall file its response to the plaintiff's
motion for class certification by June 1, 2022.
8. Plaintiff shall file his reply to the defendant's response
by July 15, 2022.
9. Motions for summary judgment shall be filed no later than
October 31, 2022.
A copy of the Court's order dated Sept. 29, 2021 is available from
PacerMonitor.com at https://bit.ly/3iB6mVO at no extra charge.[CC]
AMAZON.COM: Vincenzeti Sues Over Unpaid Minimum and Overtime Wages
------------------------------------------------------------------
Jennifer Vincenzeti, and those similarly situated v. AMAZON.COM
SERVICES LLC, Case No. 1:21-cv-02681 (D. Colo., Oct. 1, 2021),
arises from the Defendant's illegal policy of forcing warehouse
workers to work off the clock before and after their shifts with no
compensation.
Each day, Plaintiff would be forced to work between two to five
minutes before she could clock in and begin getting compensated.
During this uncompensated time, she was required to get her badge
and meet with a Shift Assistant to receive her job duties for the
day. Amazon ensured Plaintiff and those similarly situated complied
with this off the clock work policy by implementing policies that
would punish employees for clocking in early or out late. If an
employee clocked in early or out late too often, it would result in
eventual termination. This off the clock work left Plaintiff and
those similarly situated unpaid for hourly contract wages and
minimum wages. In addition, because many employees were clocked in
for 40 hours a week or just shy of 12 hours in a day, this off the
clock work often resulted in unpaid overtime, including for the
Plaintiff, says the complaint.
The Plaintiff worked for Amazon at two Colorado Springs warehouses
from October 2018 to December 2020.
Amazon operates a sprawling international online retail shopping
business that allows customers to order goods online and have those
orders fulfilled and delivered through Amazon's expansive
fulfillment network.[BN]
The Plaintiff is represented by:
Alexander N. Hood, Esq.
David H. Seligman, Esq.
Brianne M. Power, Esq.
Towards Justice
PO Box 371680, PMB 44465
Denver, CO 80237-5680
Phone: 720-441-2236
Email: alex@towardsjustice.org
david@towardsjustice.org
brianne@towardsjustice.org
- and -
Brian D. Gonzales, Esq.
THE LAW OFFICES OF BRIAN D. GONZALES, PLLC
2580 East Harmony Road, Suite 201
Fort Collins, CO 80528
Phone: (970) 214-0562
Email: BGonzales@ColoradoWageLaw.com
AMPLIFY ENERGY: Gutierrez Files Suit in C.D. California
-------------------------------------------------------
A class action lawsuit has been filed against Amplify Energy
Corporation, et al. The case is styled as Peter Moses Gutierrez,
Jr., individually and on behalf of all others similarly situated v.
Amplify Energy Corporation, Beta Operating Company, LLC, Doe Corps
1-100, Case No. 8:21-cv-01628-DOC-JDE (C.D. Cal., Oct. 4, 2021).
The nature of suit is stated as Torts to Land.
Amplify Energy Corp --
https://www.amplifyenergy.com/home/default.aspx -- is an oil
company based in Houston, Texas.[BN]
The Plaintiff is represented by:
Alex R. Straus, Esq.
MILBERG COLEMAN BRYSON PHILLIPS GROSSMAN, PLLC
280 South Beverly Drive, Penthouse Suite
Beverly Hills, CA 90212
Phone: (914) 471-1894
Fax: (919) 600-5035
Email: astraus@milberg.com
ANHEUSER-BUSCH: Faces Class Suit Over Cacti Misleading Label Info
-----------------------------------------------------------------
Nolan Strong, writing for All Hiphop, reports that Travis Scott's
Cacti brand of spiked seltzer with Anheuser-Busch has landed the
beverage giant and hot water.
A disgruntled fan is filing a class-action lawsuit against
Anheuser-Busch over the product's labeling, which the woman says is
misleading.
Rebecca Read has issues with Cacti's claims that the product is
"made with 100% Blue Agave from Mexico."
Read says she bought Cacti in June and July of 2021, thinking it
would contain agave spirits because it is labeled as "Agave Spiked
Seltzer."
She was disappointed to learn that the product was an "agave
sweetener" and not the real thing.
Read said she chose to purchase Cacti, even though it was more
expensive than other spiked seltzer water on the shelves, because
she assumed she was getting the real thing -- a sliver of Blue
Agave -- which is used to make tequila.
As a result, Read claims she was beaten out of her money because
the product was worth less than what she would have paid if Cacti
did not make false and misleading statements about the spiked
seltzer.
For the uninitiated, agave is a plant native to arid and semi-arid
regions of the Americas, particularly Mexico.
The Weber Blue Agave plant is the base for making tequila. The
popularity of the drink has skyrocketed in the United States in
recent years. Consumption in the U.S. has risen by more than 30%
between 2015 and 2020.
As such, demand for 100% Blue Agave plant products has exploded.
Agave-based spirits are the third-largest spirits category in the
U.S., following vodka and whiskey.
According to Rebecca Read, state and federal relation regulations
require the front label of Cacti to identify the product as
something other than "Agave Spiked Seltzer."
"The Product lacks any Agave spirits and instead uses 'Agave
syrup,' a sweetener derived from the Agave plant, as shown in the
fine print ingredient list on the back of the Product," according
to Read's complaint. "Defendant sold more of the Product and at
higher prices than it would have in the absence of this misconduct,
resulting in additional profits at the expense of consumers. Had
Plaintiff and proposed class members known the truth, they would
not have bought the Product or would have paid less for it."
Rebecca Read and her lawyers are hoping to have her complaint
certified as a class-action lawsuit, since Cacti has been sold to
consumers nationwide.
Rebecca Read is being represented by Spencer Sheehan of Sheehan &
Associates, P.C. in Great Neck, New York. [GN]
ANNOVIS BIO: Klein Law Firm Reminds of October 18 Deadline
----------------------------------------------------------
The Klein Law Firm on Sept. 27 disclosed that a class action
complaint has been filed on behalf of shareholders of Annovis Bio,
Inc. (NYSE: ANVS) alleging that the Company violated federal
securities laws.
Class Period: May 21, 2021 and July 28, 2021
Lead Plaintiff Deadline: October 18, 2021
No obligation or cost to you.
Learn more about your recoverable losses in ANVS:
https://www.kleinstocklaw.com/pslra-1/annovis-bio-inc-loss-submission-form?id=19885&from=5
Annovis Bio, Inc. NEWS - ANVS NEWS
CLASS ACTION CASE DETAILS: The filed complaint alleges that Annovis
Bio, Inc. made materially false and/or misleading statements and/or
failed to disclose that: (1) Annovis's ANVS401 (Posiphen), an
orally administrated drug which purportedly inhibited the synthesis
of neurotoxic proteins that are the main cause of
neurodegeneration, did not show statistically significant results
across two patient populations as to factors such as orientation,
judgement, and problem solving; and (2) 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.
WHAT THIS MEANS TO YOU AS A SHAREHOLDER: If you have suffered a
loss in Annovis Bio you have until October 18, 2021 to petition the
court for lead plaintiff status. Your ability to share in any
recovery doesn't require that you serve as a lead plaintiff.
NO COST TO YOU: If you purchased Annovis Bio securities during the
relevant period, you may be entitled to compensation without
payment of any out-of-pocket fees.
HOW TO PROTECT YOUR FINANCIAL INTERESTS: For additional information
about the ANVS lawsuit, please contact J. Klein, Esq. by telephone
at 212-616-4899 or click this link.
About Klein Law Firm
J. Klein, Esq. represents investors and participates in securities
litigations involving financial fraud throughout the nation. The
Klein Law Firm is a boutique litigation firm with experience in a
wide range of areas including securities law, corporate finance and
commercial litigation. Since 2011, our experienced attorneys have
achieved superior results for our clients with a personalized
focus. Attorney advertising. Prior results do not guarantee similar
outcomes.
CONTACT:
J. Klein, Esq.
Empire State Building
350 Fifth Avenue
59th Floor
New York, NY 10118
jk@kleinstocklaw.com
Telephone: (212) 616-4899
Fax: (347) 558-9665
www.kleinstocklaw.com [GN]
ANTERO RESOURCES: Case Schedule in Grissom Suit Extended
--------------------------------------------------------
In the class action lawsuit captioned as ELAINE GRISSOM, et al., v.
ANTERO RESOURCES CORPORATION, Case No. 2:20-cv-02028-EAS-EPD (S.D.
Ohio), the Hon. Judge Elizabeth A. Preston Deavers entered an order
granting the Plaintiffs' motion to extend case schedule as
follows:
Deadline Date
-- Fact discovery completion Nov. 9, 2021
-- Plaintiffs' motion for class Nov. 9, 2021
certification with expert
report(s) in support of
class certification
-- Expert discovery of Plaintiffs' Jan. 11, 2022
expert(s) in support of
class certification
-- Defendant's opposition to Jan. 21, 2022
motion for class
certification with expert
report(s) in opposition to
class certification
-- Expert discovery of Defendant's Feb. 21, 2022
expert(s) in opposition of class
certification complete; class
certification expert discovery
closes
-- Plaintiffs' reply in support March 7, 2022
of class certification with
rebuttal expert report(s)
in support of class certification
-- Plaintiffs to make settlement May 24, 2022
demand
-- Defendant to respond to Plaintiffs' June 21, 2022
settlement demand
-- Case is referred to mediation July 2022
Antero Resources is a company engaged in hydrocarbon exploration.
It is organized in Delaware and headquartered in Denver, Colorado.
The company's reserves are entirely in the Appalachian Basin and
are extracted using hydraulic fracturing.
A copy of the Court's order dated Sept. 29, 2021 is available from
PacerMonitor.com at https://bit.ly/3Aes6g9 at no extra charge.[CC]
APPHARVEST INC: Glancy Prongay Discloses Securities Class Action
----------------------------------------------------------------
Glancy Prongay & Murray LLP ("GPM"), announces that it has filed a
class action lawsuit in the United States District Court for the
Southern District of New York captioned Ragan v. AppHarvest, Inc.,
et al., (Case No. 21-cv-07985) on behalf of persons and entities
that purchased or otherwise acquired AppHarvest, Inc. ("AppHarvest"
or the "Company") (NASDAQ: APPH) securities between May 17, 2021
and August 10, 2021, inclusive (the "Class Period"). Plaintiff
pursues claims under Sections 10(b) and 20(a) of the Securities
Exchange Act of 1934 (the "Exchange Act").
If you suffered a loss on your AppHarvest investments or would like
to inquire about potentially pursuing claims to recover your loss
under the federal securities laws, you can submit your contact
information at https://www.glancylaw.com/cases/appharvest-inc/. You
can also contact Charles H. Linehan, of GPM at 310-201-9150,
Toll-Free at 888-773-9224, or via email at
shareholders@glancylaw.com or visit our website at
www.glancylaw.com to learn more about your rights.
AppHarvest is a sustainable food company that operates applied
technology greenhouses to produce fresh, chemical-free, non-GMO
fruits, vegetables, and related products.
On August 11, 2021, before the market opened, AppHarvest announced
its second quarter financial results, reporting a $32.0 million net
loss. The Company also lowered its full year sales guidance to a
range of $7 million to $9 million, from a prior range of $20
million to $25 million. AppHarvest attributed the lower than
expected results to "operational headwinds with the full ramp up to
full production at the company's first CEA facility, including
labor and productivity challenges related to the training and
development of the new workforce and historically low market prices
for tomatoes."
On this news, the Company's share price fell $3.46, or
approximately 29%, to close at $8.51 per share on August 11, 2021,
on unusually heavy trading volume.
Throughout the Class Period, Defendants made materially false
and/or misleading statements, as well as failed to disclose
material adverse facts about the Company's business, operations,
and prospects. Specifically, Defendants failed to disclose to
investors: (1) that AppHarvest lacked sufficient training for its
recently expanded labor force; (2) that, as a result, the Company
could not produce Grade No. 1 tomatoes consistently; (3) that, as a
result, the Company's financial results would be adversely
impacted; and (4) that, as a result of the foregoing, Defendants'
positive statements about the Company's business, operations, and
prospects were materially misleading and/or lacked a reasonable
basis. [GN]
APPHARVEST INC: Robbins Geller Reminds of November 23 Deadline
--------------------------------------------------------------
Robbins Geller Rudman & Dowd LLP announces that purchasers of
AppHarvest, Inc. (NASDAQ: APPH) securities between May 17, 2021 and
August 10, 2021, inclusive (the "Class Period") have until November
23, 2021 to seek appointment as lead plaintiff in the AppHarvest
class action lawsuit. The AppHarvest class action lawsuit charges
AppHarvest and certain of its top executives with violations of the
Securities Exchange Act of 1934. The AppHarvest class action
lawsuit was commenced on September 24, 2021 in the Southern
District of New York and is captioned Ragan v. AppHarvest, Inc.,
No. 21-cv-07985.
If you wish to serve as lead plaintiff of the AppHarvest class
action lawsuit, please provide your information by clicking here.
You can also contact attorney J.C. Sanchez of Robbins Geller by
calling 800/449-4900 or via e-mail at jsanchez@rgrdlaw.com. Lead
plaintiff motions for the AppHarvest class action lawsuit must be
filed with the court no later than November 23, 2021.
CASE ALLEGATIONS: The AppHarvest class action lawsuit alleges that,
throughout the Class Period, defendants made false and misleading
statements and failed to disclose that: (i) AppHarvest lacked
sufficient training for its recently expanded labor force; (ii) as
a result, AppHarvest could not produce Grade No. 1 tomatoes
consistently; (iii) consequently, AppHarvest's financial results
would be adversely impacted; and (iv) as such, defendants' positive
statements about AppHarvest's business, operations, and prospects
were materially misleading and/or lacked a reasonable basis.
On August 11, 2021, AppHarvest announced its second quarter 2021
financial results, reporting a $32.0 million net loss. AppHarvest
also lowered its full year sales guidance to a range of $7 million
to $9 million, from a prior range of $20 million to $25 million.
AppHarvest attributed the lower than expected results to
"operational headwinds with the ramp up to full production at the
company's first CEA facility, including labor and productivity
challenges related to the training and development of the new
workforce and historically low market prices for tomatoes." On this
news, AppHarvest's share price fell approximately 29%, damaging
investors.
THE LEAD PLAINTIFF PROCESS: The Private Securities Litigation
Reform Act of 1995 permits any investor who purchased AppHarvest
securities during the Class Period to seek appointment as lead
plaintiff in the AppHarvest class action lawsuit. A lead plaintiff
is generally the movant with the greatest financial interest in the
relief sought by the putative class who is also typical and
adequate of the putative class. A lead plaintiff acts on behalf of
all other class members in directing the AppHarvest class action
lawsuit. The lead plaintiff can select a law firm of its choice to
litigate the AppHarvest class action lawsuit. An investor's ability
to share in any potential future recovery of the AppHarvest class
action lawsuit is not dependent upon serving as lead plaintiff.
ABOUT ROBBINS GELLER RUDMAN & DOWD LLP: With 200 lawyers in 9
offices nationwide, Robbins Geller Rudman & Dowd LLP is the largest
U.S. law firm representing investors in securities class actions.
Robbins Geller attorneys have obtained many of the largest
shareholder recoveries in history, including the largest securities
class action recovery ever -- $7.2 billion -- in In re Enron Corp.
Sec. Litig. The 2020 ISS Securities Class Action Services Top 50
Report ranked Robbins Geller first for recovering $1.6 billion for
investors last year, more than double the amount recovered by any
other securities plaintiffs' firm. Please visit
http://www.rgrdlaw.comfor more information. [GN]
APPLE INC: Settles AppleCare Extended Warranty Class Action
-----------------------------------------------------------
Bestgamingpro reports that however, as customers receive their new
iPads, a recurring problem is coming to light once again.
When the iPad mini's rear camera is aimed at the top in portrait
orientation, the display on the right updates faster than the left.
The left side will now update ahead of the right side when viewed
upside down.
The Verge's Dieter Bohn captured the issue well with a slow-motion
video posted to Twitter. The visible judder is evident as half of
the screen updates while the other half lags behind.
It's not yet clear whether the fault is with the LCD panel, display
controllers, or a software/firmware problem. Because the display
controllers are on the side rather than at the bottom or top of the
screen, it's possible that display signals are reaching half of the
screen faster, resulting in a hardware design issue.
It will be up to the consumer to decide if the jelly scrolling
issue is sufficient reason to abandon the iPad mini. Obviously,
little visual flaws like this are more alarming for some
individuals than others. A lot of people may discover something is
wrong but then their brains acclimate and they can ignore it after
a few hours. [GN]
ARTSANA USA: Faces Jimenez Suit Over Defective Booster Seats
------------------------------------------------------------
AMANDA JIMENEZ, individually and on behalf of all others similarly
situated, Plaintiff v. ARTSANA USA, INC., Defendant, Case No.
7:21-cv-07933 (S.D.N.Y., Sept. 23, 2021) is a class action against
the Defendant for breach of express and implied warranty, unjust
enrichment, fraud, and violations of New York consumer protection
laws.
According to the complaint, the Defendant has committed unfair or
deceptive acts and practices to consumers, including the Plaintiff,
by making false representations and omissions on the label and in
the advertising of its Chicco-brand booster seats. Allegedly, the
products are not safe for use or suitable for children as small as
30 pounds, and do not pass any side-impact testing or offer
side-impact protection.
The fraudulent actions of Defendant caused damage to Plaintiff and
members of the Class, who are entitled to damages and other legal
and equitable relief as a result, the suit says.
Artsana USA, Inc. provides baby related products. The Company
offers everything from baby gear to nursing, toys, apparel, shoes,
and baby care products.[BN]
The Plaintiff is represented by:
Alec M. Leslie, Esq.
BURSOR & FISHER, P.A.
888 Seventh Avenue
New York, NY 10019
Telephone: (646) 837-7150
Facsimile: (212) 989-9163
E-mail: aleslie@bursor.com
- and -
L. Timothy Fisher, Esq.
Sean L. Litteral, Esq.
BURSOR & FISHER, P.A.
1990 North California Blvd., Suite 940
Walnut Creek, CA 94596
Telephone: (925) 300-4455
Facsimile: (925) 407-2700
E-mail: ltfisher@bursor.com
slitteral@bursor.com
- and -
Antonio Vozzolo, Esq.
Andrea Clisura, Esq.
VOZZOLO LLC
345 Route 17 South
Upper Saddle River, NJ 07458
Telephone: (201) 630-8820
Facsimile: (201) 604-8400
E-mail: avozzolo@vozzolo.com
aclisura@vozzolo.com
ATI PHYSICAL: Faruqi & Faruqi Reminds of October 15 Deadline
------------------------------------------------------------
Faruqi & Faruqi, LLP, a leading national securities law firm, is
investigating potential claims against ATI Physical Therapy, Inc.
("ATI" or the "Company") (NYSE: ATIP) and reminds investors of the
October 15, 2021 deadline to seek the role of lead plaintiff in a
federal securities class action that has been filed against the
Company.
If you suffered losses exceeding $50,000 investing in ATI stock or
options between April 1, 2021 and July 23, 2021 and would like to
discuss your legal rights, call Faruqi & Faruqi partner Josh Wilson
directly at 877-247-4292 or 212-983-9330 (Ext. 1310). You may also
click here for additional information: www.faruqilaw.com/ATIP.
Cannot view this image? Visit:
https://orders.newsfilecorp.com/files/6455/97660_2b8a253334e7cbaa_001.jpg
There is no cost or obligation to you.
Faruqi & Faruqi is a leading minority and Woman-owned national
securities law firm with offices in New York, Delaware,
Pennsylvania, California and Georgia.
As detailed below, the lawsuit focuses on whether the Company and
its executives violated federal securities laws by making false
and/or misleading statements and/or failing to disclose that: (1)
that ATI was experiencing attrition among its physical therapists;
(2) that ATI faced increasing competition for clinicians in the
labor market; (3) that, as a result of the foregoing, the Company
faced difficulties retaining therapists and incurred increased
labor costs; (4) that, as a result of the labor shortage, the
Company would open fewer new clinics; and (5) that, as a result of
the foregoing, Defendants' positive statements about the Company's
business, operations, and prospects were materially misleading
and/or lacked a reasonable basis.
On July 26, 2021, before the market opened, ATI reported its
financial results for second quarter 2021, the period in which the
Business Combination was completed. Among other things, ATI
reported that "the acceleration of attrition among [its] therapists
in the second quarter and continuing into the third quarter,
combined with the intensifying competition for clinicians in the
labor market, prevented us from being able to meet the demand we
have and increased our labor costs." Though ATI was implementing
certain remedial actions, the Company reduced its fiscal 2021
forecast due to the foregoing factors.
On this news, the Company's share price fell $3.62, or 43%, to
close at $4.72 per share on July 26, 2021, on unusually heavy
trading volume. The share price continued to decline the next
trading session by as much as 19%. As a result, FVAC investors who
could have voted against the Business Combination and redeemed
their shares at $10.00 per share suffered a loss of $5.28 per
share.
The court-appointed lead plaintiff is the investor with the largest
financial interest in the relief sought by the class who is
adequate and typical of class members who directs and oversees the
litigation on behalf of the putative class. Any member of the
putative class may move the Court to serve as lead plaintiff
through counsel of their choice, or may choose to do nothing and
remain an absent class member. Your ability to share in any
recovery is not affected by the decision to serve as a lead
plaintiff or not.
Faruqi & Faruqi, LLP also encourages anyone with information
regarding ATI's conduct to contact the firm, including
whistleblowers, former employees, shareholders and others. [GN]
BARNEY'S COLLEGE: Garcia Sues Over Unpaid Minimum, Overtime Wages
-----------------------------------------------------------------
Jonathan Garcia and Oscar individually, and on behalf of all other
aggrieved employees, and the general public v. BARNEY'S COLLEGE,
INC., a California corporation; BARNEY'S PIEDMONT, INC., a
California Corporation; BARNEY'S SAN FRANCISCO, INC., a California
corporation; BARNEY'S SAN VICENTE, INC., a California corporation;
BARNEY'S SOLANO, INC., a California corporation; BARNEYS BRENTWOOD,
INC., a California corporation; BARNEYS SHATTUCK, INCORPORATED., a
California corporation; BARNEY'S STEINER, LLC, a California limited
liability company; and DOES 1 through 25, inclusive, Case No.
RG21113350 (Cal. Super. Ct., Alameda Cty., Sept. 21, 2021), is
brought to challenge the Defendants' employment practices with
respect to their non-exempt, hourly workers employed in the State
of California at Defendants' restaurant locations, based on the
Defendants' policy and practice of failing, among other things, to
provide legally compliant meal and rest breaks, denying earned
wages, including overtime pay, and failing to reimburse business
expenses from April 6, 2020 to the present.
The Defendants' compensation scheme did not fully compensate
Plaintiffs with at least minimum wages and/or designated rates for
all hours worked and overtime compensation for all overtime hours
worked. The Defendants failed to provide Plaintiffs with timely and
adequate off-duty meal periods and meal period compensation in
violation of Labor Code, says the complaint.
The Plaintiffs were employed by Defendants as a server and as a
dishwasher and busser.
The Defendants own a restaurant under the name Barney's.[BN]
The Plaintiffs are represented by:
Michael H. Boyamian, Esq.
Heather M. Zermeno, Esq.
BOYAMIAN LAW, INC.
550 North Brand Boulevard, Suite 1500
Glendale, CA 91203-1922
Phone: 818.547.5300
Facsimile: 818.547.5678
Email: michael@boyamianlaw.com
heather@boyamianlaw.com
- and -
Robert Drexler, Esq.
Molly A. DeSario, Esq.
CAPSTONE LAW, APC
Jonathan Lee, SBN 267146
1875 Century Park East, Suite 1000
Los Angeles, California 90067
Phone: (310) 556-4811
Fax: 310-943-0396
Email: robert.drexler@capstonelawyers.com
molly.desario@capstonelawyers.com
jonathan.lee@capstonelawyers.com
BAYOU STEEL: Court Certifies Class of Employees in Fleming Suit
---------------------------------------------------------------
In the class action lawsuit captioned as TROY FLEMING, ET AL., v.
BAYOU STEEL BD HOLDINGS II LLC, ET AL., Case No.
2:20-cv-01476-CJB-KWR (E.D. La.), the Hon. Judge Carl J. Barbier
entered an order:
1. granting the motion for class certification filed by the
Plaintiffs;
2. certifying a class under Rule 23(b)(3) of the Federal
Rules of Civil Procedure, to be defined as:
"All former employees of the Bayou Steel Entities who (i)
had their home base at or principally worked at, received
assignments from, or reported to, the Bayou Steel
Entities' facilities in LaPlace, Louisiana; (ii) whose
employment was terminated without cause on, or within 30
days of, September 30, 2019 as a result of a "mass layoff"
or "plant closing" within the meaning of 29 U.S.C. section
2101(a)(2) and (a)(3); (iii) who are "affected employees"
within the meaning of 29 U.S.C. § 2101(a)(5); and (iv) who
were not provided advanced notice required by the Worker
Adjustment and Retraining Notification (WARN) Act;"
Bayou Steel Entities is defined as "Bayou Steel BD
Holdings, L.L.C. dba Bayou Steel Group fka BD Long
Products, LLC, BD Bayou Steel Investment, LLC,
BD LaPlace, LLC fka Arcelormittal LaPlace, LLC;"
3. appointing Plaintiffs Troy Fleming, Jarrod Nabor, Davarian
Ursin, Charles Ziegeler, and Ronnie Millet as Class
Representatives;
4. appointing Plaintiffs' counsel:
Fishman Haygood, L.L.P.
201 Saint Charles Avenue, 46th Floor
New Orleans, LA 70170
Telephone: (504) 586-5252
- and -
Peiffer Wolf Carr & Kane, APLC
818 Lafayette Ave., Floor 2
St. Louis, MO 63104
Telephone: (314) 833-4825
- and -
O'Bell Law Firm, LLC
3500 North Hullen Street,
Metairie, LA 70002
Telephone: (504) 456-8677
- and -
The Lambert Firm, PLC
701 Magazine Street
New Orleans, LA 70130
Telephone: (504) 581-1750
- and -
Womble Bond Dickinson (US) LLP
1313 North Market Street, Suite 1200
Wilmington, DE 19801
Telephone: (312) 252-4320
- and -
Randal L. Gaines, Esq.
7 Turnberry Drive
LaPlace, LA 70068
Telephone: (225) 647-3383;
5. approving the form and manner of Notice; and
6. reserving all rights and defenses to all claims in this
litigation for the Defendants, including their defenses
that they are not subject to the WARN Act and that there
was no WARN Act violation.
A copy of the Court's order dated Sept. 29, 2021 is available from
PacerMonitor.com at https://bit.ly/3uHvwa9 at no extra charge.[CC]
BIRCH RESOURCES: Johnston Seeks to Recover Unpaid Overtime Wages
----------------------------------------------------------------
MICHAEL DWAIN JOHNSTON, Individually and for Others Similarly
Situated v. BIRCH RESOURCES, LLC, Case No. 4:21-cv-03101 (S.D.
Tex., Sept. 23, 2021) arises from the Defendant's failure to pay
overtime wages and other damages under the Fair Labor Standards
Act.
Mr. Johnston was employed by the Defendant as a health, safety, and
environmental (HSE) advisor starting October of 2018 until
September 2021 in Big Springs, Texas.
Birch Resources is a privately held energy and power company with
assets in the Permian Basin.[BN]
The Plaintiff is represented by:
Michael A. Josephson, Esq.
Andrew W. Dunlap, Esq.
Richard M. Schreiber, Esq.
JOSEPHSON DUNLAP LLP
11 Greenway Plaza, Suite 3050
Houston, TX 77005
Telephone: (713) 352-1100
Facsimile: (713) 352-3300
E-mail: mjosephson@mybackwages.com
adunlap@mybackwages.com
rschreiber@mybackwages.com
- and -
Richard J. (Rex) Burch, Esq.
BRUCKNER BURCH PLLC
11 Greenway Plaza, Suite 3025
Houston, TX 77046
Telephone: (713) 877-8788
Facsimile: (713) 877-8065
E-mail: rburch@brucknerburch.com
BLACKSTONE CONSULTING: Court Denies Bid to Stay Scott Suit
----------------------------------------------------------
In the case, PENNY SCOTT, Plaintiff v. BLACKSTONE CONSULTING, INC.,
Defendant, Case No. 21cv1470-MMA-KSC (S.D. Cal.), Judge Michael M.
Anello of the U.S. District Court for the Southern District of
California denies the parties' joint motion to stay the action
without prejudice.
Plaintiff Scott brings the putative wage and hour class action
against Defendant Blackstone. The parties now jointly move to stay
the action, asserting that they "are actively seeking to confirm a
private mediator in March 2022" and have "agreed that to focus on
an informal exchange of information/documents and an early
mediation, the case should be stayed in all respects for at least
six months, except that Plaintiff will file a Motion to Remand."
The parties further request that the Court "continue the Oct. 13,
2021 Case Management and ENE Conferences by at least six months,
including the Confidential ENE Statements, Rule 26(a) disclosures,
and the Joint Discovery Plan, to allow the Parties to participate
in an early mediation."
In light of the parties' joint motion, the assigned magistrate
judge vacated the previously scheduled Early Neutral Evaluation
conference and will instead convene a telephonic status conference
with counsel in November. Accordingly, the formal commencement of
discovery is effectively stayed pursuant to this District's Civil
Local Rules and the applicable Federal Rules of Civil Procedure.
Meanwhile, the parties indicate that the Plaintiff intends to file
a motion seeking to remand the action to state court.
Based on this representation and the anticipated motion practice,
Judge Anello holds that a stay of the action in its entirety would
not be appropriate. Accordingly, he denies the parties' joint
motion without prejudice to renewing their request in the event the
Plaintiff declines to file a motion to remand.
A full-text copy of the Court's Sept. 22, 2021 Order is available
at https://tinyurl.com/y83j7a3k from Leagle.com.
BOB'S DISCOUNT: Argenbright Sues Over Goof Proof Protection Plan
----------------------------------------------------------------
Gina Argenbright, individually and on behalf of all others
similarly situated v. Bob's Discount Furniture, LLC and Guardian
Protection Products, Inc., Case No. 1:21-cv-05082 (N.D. Ill., Sept.
26, 2021) alleges that representations of Defendant Bob's of "Goof
Proof Protection" were false and misleading with respect to what
the plans would cover, in violations of the Illinois Consumer Fraud
and Deceptive Business Practices Act, the Illinois Service Contract
Act, and the Magnuson Moss Warranty Act.
Bob's Discount Furniture, LLC markets, promotes, and sells
insurance under the guise of "service contracts," referred to as
"Goof Proof Protection", and administered by Guardian Protection
Products, Inc. in connection with its sale of furniture.
The complaint contends that Defendant Bob's misrepresented and/or
omitted the attributes and qualities of the Goof Proof plans.
Specifically, Defendant Guardian intentionally denied claims based
on their manuals which contained information on how accidental
damage could be recharacterized as attributable to wear-and-tear
and other causes for which consumers would not receive coverage,
says the complaint.[BN]
The Plaintiff is represented by:
Spencer Sheehan, Esq.
SHEEHAN & ASSOCIATES, P.C.
60 Cuttermill Rd Ste 409
Great Neck, NY 11021-3104
Telephone: (516) 268-7080
Facsimile: (516) 234-7800
E-mail: spencer@spencersheehan.com
BOSTON BEER: Faruqi & Faruqi Reminds of November 15 Deadline
------------------------------------------------------------
Faruqi & Faruqi, LLP, a leading national securities law firm, is
investigating potential claims against The Boston Beer Company,
Inc. ("Boston Beer" or the "Company") (NYSE: SAM) and reminds
investors of the November 15, 2021 deadline to seek the role of
lead plaintiff in a federal securities class action that has been
filed against the Company.
If you suffered losses exceeding $50,000 investing in Boston Beer
stock or options between April 22, 2021 and September 8, 2021 and
would like to discuss your legal rights, call Faruqi & Faruqi
partner Josh Wilson directly at 877-247-4292 or 212-983-9330 (Ext.
1310). You may also click here for additional information:
www.faruqilaw.com/SAM.
Cannot view this image? Visit:
https://orders.newsfilecorp.com/files/6455/97676_7fe8882214babbaf_001.jpg
There is no cost or obligation to you.
Faruqi & Faruqi is a leading minority and Woman-owned national
securities law firm with offices in New York, Delaware,
Pennsylvania, California and Georgia.
As detailed below, the lawsuit focuses on whether the Company and
its executives violated federal securities laws by making false
and/or misleading statements and/or failing to disclose: (1) that
Boston Beer's hard seltzer sales were decelerating; (2) that, as a
result, Boston Beer was reasonably likely to incur inventory
write-offs; (3) that the Company was reasonably likely to incur
shortfall fees payable to third party brewers; (4) that, as a
result of the foregoing, Boston Beer's financial results would be
adversely impacted; and (5) that, as a result of the foregoing,
Defendants' positive statements about the Company's business,
operations, and prospects were materially misleading and/or lacked
a reasonable basis.
On July 22, 2021, after the market closed, Boston Beer reduced its
full year 2021 guidance, expecting earnings per share between $18
and $22, down from a prior range of $22 and $26. The Company cited
softer-than-expected sales in the hard seltzer category and overall
beer industry and also stated that it had "overestimated the growth
of the hard seltzer category in the second quarter."
On this news, the Company's share price fell $246.54, or 26%, to
close at $701.00 per share on July 23, 2021, on unusually heavy
trading volume.
On September 8, 2021, after the market closed, Boston Beer withdrew
its 2021 financial guidance, citing decelerating sales of hard
seltzer products. The Company also stated that it "expects to incur
hard seltzer-related inventory write-offs, shortfall fees payable
to 3rd party brewers, and other costs" for the remainder of fiscal
2021.
On this news, the Company's share price fell $21.09, or 3.7%, to
close at $538.31 per share on September 9, 2021, on unusually heavy
trading volume.
The court-appointed lead plaintiff is the investor with the largest
financial interest in the relief sought by the class who is
adequate and typical of class members who directs and oversees the
litigation on behalf of the putative class. Any member of the
putative class may move the Court to serve as lead plaintiff
through counsel of their choice, or may choose to do nothing and
remain an absent class member. Your ability to share in any
recovery is not affected by the decision to serve as a lead
plaintiff or not.
Faruqi & Faruqi, LLP also encourages anyone with information
regarding Boston Beer's conduct to contact the firm, including
whistleblowers, former employees, shareholders and others. [GN]
CARSON CLARKE: Deltona Transformer Files Suit in Fla. Cir. Ct.
--------------------------------------------------------------
A class action lawsuit has been filed against Carson Clarke, et al.
The case is styled as Deltona Transformer Corporation, Plaintiff;
Evin Dtyon, individually on behalf of all similarly situated
shareholders of Deltran Operations USA, Inc., Deltran Operations
USA, Inc., Party Plaintiff v. CARSON CLARKE, Defendant; CHASE
CLARKE, MICHAEL PRELEC JR., DELTRAN OPERATIONS USA INC., A FLORIDA
CORPORATION (NOMINAL DEFENDANT), Party Defendant, Case No.
2021-11378-CIDL (Fla. Cir. Ct., Volusia Cty., Sept. 21, 2021).
The nature of suit is stated as SHAREHOLDER DERIVATION.[BN]
The Plaintiff is represented by:
Eric C. Christu, Esq.
525 OKEECHOBEE BLVD., STE. 1100
CASSAVA SCIENCES: Faruqi & Faruqi Reminds of October 26 Deadline
----------------------------------------------------------------
Faruqi & Faruqi, LLP, a leading national securities law firm, is
investigating potential claims against Cassava Sciences, Inc.
("Cassava" or the "Company") (NASDAQ: SAVA) and reminds investors
of the October 26, 2021 deadline to seek the role of lead plaintiff
in a federal securities class action that has been filed against
the Company.
If you suffered losses exceeding $50,000 investing in Cassava stock
or options between September 14, 2020 and August 27, 2021 and would
like to discuss your legal rights, call Faruqi & Faruqi partner
Josh Wilson directly at 877-247-4292 or 212-983-9330 (Ext. 1310).
You may also click here for additional information:
www.faruqilaw.com/SAVA.
There is no cost or obligation to you.
Faruqi & Faruqi is a leading minority and Woman-owned national
securities law firm with offices in New York, Delaware,
Pennsylvania, California and Georgia.
As detailed below, the lawsuit focuses on whether the Company and
its executives violated federal securities laws by making false
and/or misleading statements and/or failing to disclose that
Cassava: (1) deceived the investing public regarding Cassava's
prospects and business; (2) artificially inflated the price of
Cassava common stock; (3) permitted Cassava to cash in by selling
$200 million of Cassava common stock at fraud-inflated prices; and
(4) caused Plaintiff and other members of the Class to purchase
Cassava common stock at artificially inflated prices.
On August 25, 2021, before the market opened, Cassava issued a
response to the petition, claiming that the allegations regarding
scientific integrity are false and misleading. Among other things,
the Company claimed that the clinical data, which the citizen
petition stated had been reanalyzed to show simufilam was
effective, had been generated by Quanterix Corp. ("Quanterix"), an
independent company, suggesting that the reanalysis was valid.
On this news, the Company's share price fell $36.97, or 32%, to
close at $80.86 per share on August 25, 2021, on unusually heavy
trading volume.
On August 27, 2021, before the market opened, Quanterix issued a
statement denying the Company's claims, stating that it "did not
interpret the test results or prepare the data" touted by Cassava.
The same day, Cassava responded to Quanterix's statement, stating
that "Quanterix'[s] sole responsibility with regard to this
clinical study was to perform sample testing, specifically, to
measure levels of p-tau in plasma samples collected from study
subjects."
On this news, the Company's share price fell $12.51, or 17.6%, to
close at $58.34 per share on August 27, 2021, on unusually heavy
trading volume.
The court-appointed lead plaintiff is the investor with the largest
financial interest in the relief sought by the class who is
adequate and typical of class members who directs and oversees the
litigation on behalf of the putative class. Any member of the
putative class may move the Court to serve as lead plaintiff
through counsel of their choice, or may choose to do nothing and
remain an absent class member. Your ability to share in any
recovery is not affected by the decision to serve as a lead
plaintiff or not.
Faruqi & Faruqi, LLP also encourages anyone with information
regarding Cassava's conduct to contact the firm, including
whistleblowers, former employees, shareholders and others. [GN]
CASSAVA SCIENCES: Johnson Fistel Reminds of October 26 Deadline
---------------------------------------------------------------
Shareholder rights law firm Johnson Fistel, LLP on Sept. 25
disclosed that purchasers of Cassava Sciences, Inc. ("Cassava" or
the "Company") (NASDAQ: SAVA) between September 14, 2020 and August
27, 2021, have until October 26, 2021, to file a lead plaintiff
motion.
According to the filed complaint: (a) the quality and integrity of
the scientific data supporting Cassava's claims for simufilam's, a
small molecule drug designed to treat Alzheimer's disease, efficacy
had been overstated; (b) the scientific data supporting Cassava's
claims for simufilam's efficacy were biased; and (c) as a result of
the foregoing, Defendants' positive statements during the Class
Period about the Company's business metrics and financial prospects
and the likelihood of Food and Drug Administration approval were
false and misleading and lacked a reasonable basis.
A lead plaintiff will act on behalf of all other class members in
directing the Casava class-action lawsuit. The lead plaintiff can
select a law firm of its choice to litigate the class-action
lawsuit. An investor's ability to share any potential future
recovery of the Casava class action lawsuit is not dependent upon
serving as lead plaintiff.
If you suffered a substantial loss and are interested in learning
more about being a lead plaintiff, please contact Jim
Baker(jimb@johnsonfistel.com) by email or phone at 619-814-4471. If
emailing, please include a phone number.
About Johnson Fistel, LLP
Johnson Fistel, LLP is a nationally recognized shareholder rights
law firm with offices in California, New York and Georgia. The firm
represents individual and institutional investors in shareholder
derivative and securities class action lawsuits. For more
information about the firm and its attorneys, please visit
http://www.johnsonfistel.com.Attorney advertising. Past results do
not guarantee future outcomes.
Contact:
Johnson Fistel, LLP
Jim Baker, 619-814-4471
jimb@johnsonfistel.com [GN]
CENTRAL CALIFORNIA: $375K Class Deal in Urena Suit Wins Final Nod
-----------------------------------------------------------------
In the case, JOSE URENA, an individual, on behalf of himself and
others similarly situated, Plaintiff v. CENTRAL CALIFORNIA ALMOND
GROWERS ASSN., Defendants, Case No. 1:18-cv-00517-NONE-EPG (E.D.
Cal.), Judge Dale A. Drozd of the U.S. District Court for the
Eastern District of California issued an order adopting in part the
findings and recommendations that the Plaintiffs' motion for final
approval of the class-action settlement and motion for attorneys'
fees and costs be granted.
Plaintiff Urena commenced the class-action lawsuit by filing a
complaint against his former employer, Defendant Central California
Almond Growers Assn., on April 13, 2018. The action proceeds on the
Plaintiff's first amended complaint against the Defendant for
federal and state wage-and-hour claims. The matter was referred to
a United States Magistrate Judge pursuant to 28 U.S.C. Section
636(b)(1)(B) and Local Rule 302.
On June 24, 2021, the assigned magistrate judge issued supplemental
findings and recommendations recommending that the Plaintiff's
motion for final approval of the class-action settlement and motion
for attorneys' fees and costs be granted. Those findings and
recommendations were served on the parties and contained notice
that any objections thereto were to be filed within 14 days after
service. No objections have been filed, and the deadline to do so
has expired.
In accordance with the provisions of 28 U.S.C. Section 636
(b)(1)(C), Judge Drozd has conducted a de novo review of the case.
He finds that the magistrate judge's initial findings and
recommendations, issued on March 12, 2021, reviewed the proposed
settlement under the factors set forth in the Ninth Circuit's
decision in Staton v. Boeing Co., 327 F.3d 938 (9th Cir. 2003).
On June 1, 2021, the Ninth Circuit issued its decision in Briseno
v. Henderson, 998 F.3d 1014 (9th Cir. 2021), in which the Ninth
Circuit concluded that courts reviewing proposed settlement
agreements cannot ignore the factors set forth in Federal Rule of
Civil Procedure 23(e)(2), which was revised after Staton was
decided. The magistrate judge vacated the findings and
recommendations in light of the decision in Briseno and issued
supplemental findings and recommendations on June 24, 2021, which
considered the Rule 23 factors.
On Aug. 17, 2021, the Ninth Circuit issued a decision in Kim v.
Allison, 8 F.4th 1170, 1178-79 (9th Cir. 2021), which further
clarified that district courts must also consider the Staton
factors -- which it called the Churchill factors -- along with the
revised ones set forth in Rule 23(e)(2).
The initial findings and recommendations analyzed the settlement
under the Staton or Churchill factors, and the revised findings and
recommendations analyzed the settlement under the revised Rule
23(e)(2). The conclusion the magistrate judge reached was the same
both times. Judge Drozd adopts the analysis of the Staton factors
from the magistrate judge's initial findings and recommendations
and the Rule 23(e)(2) analysis from the supplemental findings and
recommendations. In sum, he concludes that the proposed settlement
is fair, reasonable, and adequate, and is approvable.
Accordingly, Judge Drozd adopted in part the findings and
recommendations issued on June 24, 2021. He granted the Plaintiff's
motion for final approval of the settlement agreement, as modified
as follows: (i) Maximum Settlement Fund: $375,000, (ii) Class
Representative Enhancements: $3,000, (iii) Class Counsel's Fees:
$109,374, (iv) Class Counsel's Costs: $16,542.51, (v) PAGA Payment:
$11,250 (75% of $15,000), (vi) Settlement Administration Costs:
$10,441.45. Net Settlement Amount: $224,391.04
Approval of the settlement class is granted and defined as: "All
who are employed or have been employed by Defendant, in the State
of California, and who have worked one or more shifts as a
nonexempt hourly agricultural employee, as defined by the
California Labor Code, Industrial Welfare Commission Wage Order
8-2001, and 29 U.S.C. Section 1892(3) from April 13, 2014 through
April 30, 2019."
The Plaintiff's request for a class representative enhancement
payment is granted, as modified, in the amount of $3,000.
The Counsel's motion for attorneys' fees is granted, as modified,
in the amount of $109,375.
The Counsel's request for costs is granted, in the amount of
$16,542.51.
Within 90 days of the initial payments to the class members being
made, the parties are ordered to file a joint status report
concerning (1) the remaining amount in the net settlement; (2) the
feasibility of a waterfall payment structure; and (3) alternate
proposed cy pres recipients.
A full-text copy of the Court's Sept. 22, 2021 Order is available
at https://tinyurl.com/2t6njffn from Leagle.com.
CHARTER COMMUNICATIONS: Bid to Dismiss Hogans TCPA Suit Denied
--------------------------------------------------------------
In the case, HOGANS, individually and on behalf of all others
similarly situated, Plaintiff v. CHARTER COMMUNICATIONS, INC.,
d/b/a SPECTRUM, Defendant, Case No. 5:20-CV-566-D (E.D.N.C.), Judge
James C. Dever, II, of the U.S. District Court for the Eastern
District of North Carolina, Western Division, denies Charter's
motions to dismiss and to strike Hogans' class allegations.
Background
On Oct. 27, 2020, Tiffanie Hogans filed a complaint against Charter
alleging violations of the Telephone Consumer Protection Act of
1991, 47 U.S.C. Section 227 ("TCPA"). Hogans also seeks class
certification.
Ms. Hogans is a resident of Fayetteville, North Carolina. Charter
is a telecommunications and mass media corporation headquartered in
Stamford, Connecticut. It offers its services in North Carolina
under the "Spectrum" brand.
In January 2020, Hogans obtained a new cell phone number. About the
same time, Hogans began receiving unsolicited calls and voice mail
messages from Charter, though she is not a Charter customer. The
calls came from various numbers. Some, if not all, of the calls and
voice mail messages were intended for a recipient other than
Hogans. Hogans attempted to return Charter's calls to explain that
the calls were made to a wrong number, but she Was unable to speak
with a Charter representative.
Additionally, Hogans received numerous text messages from Charter.
She twice replied "STOP" to these text messages and both times
received a reply text message confirming she would receive no
further text messages. However, Hogans received additional text
messages. In total, Hogans received approximately 50 phone calls,
50 text messages, and 10 voice mail messages.
Ms. Hogans seeks relief for herself for the time period beginning
in January 2020. She seeks to represent and obtain relief for three
classes for the time period from Oct. 26, 2016, through the date of
class certification.
On Oct. 27, 2020, Hogans filed suit against Charter alleging TCPA
violations.
On Jan. 11, 2021, Charter moved to dismiss the complaint under
Federal Rules of Civil Procedure 12(b)(1) and 12(b)(6) and to
strike Hogan's class allegations and filed a memorandum in support.
On Feb. 15, 2021, Hogans responded in opposition to Charter's
motion. On March 8, 2021, Charter replied.
Discussion
I. Motion to Dismiss
A.
Charter cites Creasy v. Charter Communications, Inc., 489 F.Supp.3d
499 (E.D. La. 2020), and argues collateral estoppel bars Hogans's
claims. The doctrine of "collateral estoppel" or "issue preclusion"
is a subset of the res judicata genre. Applying collateral estoppel
forecloses the relitigation of issues of fact or law that are
identical to issues which have been actually determined and
necessarily decided in prior litigation in which the party against
whom collateral estoppel is asserted had a full and fair
opportunity to litigate."
In Creasy, the court held that it lacked subject-matter
jurisdiction over the plaintiffs' claims due to the Supreme Court's
decision in AAPC. Because the Creasy court's holding was essential
to granting Charter's motion to dismiss and because Hogans had a
full and fair opportunity to litigate subject-matter jurisdiction
in that case, Charter argues that collateral estoppel applies.
Ms. Hogans responds that because the United States Court of Appeals
for the Fourth Circuit had severed the government-debt exception
from 42 U.S.C. Section 227(b)(1)(A)(iii) when Hogans received the
phone calls, voice mail messages, and text messages at issue, the
remedied robocall ban was already in effect as to her claims.
Judge Dever finds that Charter has failed to demonstrate the
elements necessary for collateral estoppel to apply. The issue
"previously litigated" in Creasy is not "identical" to the issue
Hogans raises in the case. Thus, collateral estoppel does not bar
Hogans's claims.
B.
Charter contends the court lacks subject-matter jurisdiction over
Hogans' claims because her complaint does not allege a justiciable
case or controversy arising under the Constitution or a federal
statute. Specifically, Charter contends that the Supreme Court's
decision in AAPC deprives the court of subject-matter jurisdiction.
Hogans disagrees.
Judge Dever holds that Charter's arguments do not implicate the
Court's subject-matter jurisdiction but rather whether Hogans has
stated a claim upon which the Court can grant relief. Under 28
U.S.C. Section 1331, a federal court has "original jurisdiction of
all civil actions arising under the Constitution, laws, or treaties
of the United States." A claim generally arises under federal law
when federal law creates the cause of action.
Ms. Hogans' complaint properly invokes the court's subject-matter
jurisdiction under 28 U.S.C. Section 1331 and 47 U.S.C. Section
227(b)(3). Section 227(b)(3) creates a private cause of action for
litigants seeking redress for violations of section 227.
Accordingly, the private cause of action in section 227(b)(3)
arises under federal law and confers federal question jurisdiction
to hear disputes between private litigants over TCPA violations.
Ms. Hogans invokes the section 227(b)(3) private cause of action to
allege that Charter violated 47 U.S.C. Section 227(b)(1)(A)(iii).
Section 227(b)(1)(A)(iii) contains the elements that Hogans must
plead to allege a valid violation of the TCPA's robocall ban. It is
a separate provision from the section 227(b)(3) grant of
jurisdiction, and it "does not speak in jurisdictional terms or
refer in any way to the jurisdiction of the district courts."
Whether Hogans has pleaded facts occurring within a time period in
which the statute is enforceable is a question of the factual and
legal sufficiency of Hogans's complaint, not subject-matter
jurisdiction.
For these reasons, Judge Dever holds that the Court has
subject-matter jurisdiction over the case and denies Charter's
motion to dismiss for lack of subject-matter jurisdiction.
C.
Next, Judge Dever addresses AAPC's effect on Hogans' claims and
whether Hogans has stated a claim under section 227(b)(1)(A)(iii)
upon which the Court can grant relief. Charter argues that because
section 227(b)(1)(A)(iii) was unconstitutional when Hogans received
the cell phone calls, voice mail messages, and text messages at
issue, Charter could not have violated that provision. According to
Charter, the Court's remedy in AAPC -- invalidating the
government-debt exception to cure the constitutional deficiency in
section 227(b)(1)(A)(iii) -- only applies prospectively. Hogans
disagrees, arguing the Court's remedial decision in AAPC applies
retroactively.
Judge Dever explains that the Supreme Court's decision in Barr v.
American Association of Political Consultants, Inc., 140 S.Ct. 2335
(2020) (AAPC), does not expressly or effectively defeat Hogans's
individual or putative class claims. In AAPC, the Supreme Court
granted certiorari to address a two-part question: "Whether the
government-debt exception to the TCPA's automated-call restriction
violates the First Amendment, and whether the proper remedy for any
constitutional violation is to sever the exception from the
remainder of the statute." Justice Kavanaugh announced the Court's
judgment in a fractured plurality opinion. Six Justices concluded
that the general robocall ban, when coupled with the
government-debt exception, violated the First Amendment. To remedy
that violation, seven Justices voted to sever the government-debt
exception from the TCPA rather than invalidate the general robocall
ban in its entirety.
Because AAPC applies retroactively, Judge Dever says, the general
robocall ban applied during the time period when Hogans alleges
that Charter sent her and members of her putative classes the
unwanted calls, voice mail messages, and text messages at issue.
Thus, under AAPC, Hogans has plausibly alleged that Charter
violated the TCPA. Accordingly, the Judge denies Charter's motion
to dismiss under Rule 12(b)(6).
Even if the Supreme Court or the Fourth Circuit ultimately
determines that AAPC only applies prospectively, Judge Hogan holds
that it would not doom Hogans' claims. Instead, Hogans' claims and
the claims of her putative class members would be limited to those
arising on or after July 1, 2019.
D.
Charter contends the Court should dismiss Hogans' claims under the
first-to-file rule and cites Creasy in support. Hogans, however,
has dismissed her claims in Creasy, and Charter has advised this
court that her doing so "renders Charter's argument for dismissal
under the first-to-file doctrine inapplicable." Although Charter
contends that the doctrine may still apply due to "other
first-filed TCPA class actions against Charter," it has not
specifically identified those already pending cases. Thus, Judge
Dever declines to apply the first-to-file rule.
II. Motion to Strike
Charter argues that the Court should strike Hogans' class
allegations. Rule 23 provides that "at an early practicable time
after a person sues or is sued as a class representative, the court
must determine by order whether to certify the action as a class
action." Although "a court need not wait until class certification
is sought to determine whether a party complies with Rule 23,"
courts ordinarily allow for pre-certification discovery and "rarely
make a class determination at the pleading stage."
Judge Dever has reviewed the record, the arguments, and the
governing law. He denies Charter's motion to strike Hogans' class
allegations. The Judge finds that Hogans' complaint plausibly fits
within Rule 23(b)(3). As for predominance, common issues of law and
fact predominate "where the same evidence would resolve the
question of liability for all class members." As for superiority,
the Plaintiffs must be able to demonstrate that proceeding as a
class "is superior to other available methods for fairly and
efficiently adjudicating the controversy."
Conclusion
In sum, Judge Dever denies the Defendant's motion to dismiss under
Rule 12(b)(1) and Rule 12(b)(6) and denies their motion to strike.
A full-text copy of the Court's Sept. 24, 2021 Order is available
at https://tinyurl.com/37t9nk34 from Leagle.com.
CHRISTUS SPOHN: Olvera Sues Over Unpaid Straight-Time Compensation
------------------------------------------------------------------
Scott Olvera, individually and on behalf of all others similarly
situated v. CHRISTUS SPOHN HEALTH SYSTEM CORPORATION, Case No.
2:21-cv-00232 (S.D. Tex., Oct. 1, 2021), is brought under the
overtime provisions of the Fair Labor Standards Act, 29 U.S.C. and
the Portal-to-Portal Act, and as a Rule 23 class action asserting
state law claims for unpaid straight-time compensation owed at a
contractual hourly rate.
The complaint alleges that the Plaintiff and class members did not
receive bona fide meal break periods. Instead, they were required
and permitted to work off-the-clock for the Defendant during their
meal break periods and were not paid for such time. Notwithstanding
Defendant's practice of requiring nurses to be available for work
and to in fact work throughout their meal periods, Defendant
deducted 30 minutes or 1 hour from the total time worked by nurses
each shift so as to account for these hypothetical meal periods,
thereby enabling the Defendant to receive the benefit of an
additional thirty minutes or one hour of unpaid work for each shift
worked by class members.
Defendant's practice of failing to relieve nurses of their duties
during meal periods, while simultaneously using timekeeping
software to automatically deduct thirty minutes or one hour from
the total time paid per shift (on the pretext of accounting for
meal periods which nurses were not in fact free to take without
constant interruption), had the effect of depriving nurses of
overtime compensation due to them under the FLSA in the weeks in
which they worked more than 40 hours in a week, and of depriving
them of straight-time compensation at their contractual hourly rate
in weeks in which they worked fewer than 40 hours in a week. On
information and belief, all of Christus' non-exempt, direct patient
care nurses were subjected to these illegal pay practices, says the
complaint.
The Plaintiff and class members worked as hourly paid Licensed
Vocational Nurses, hourly paid Registered Nurses, and as hourly
paid Certified Nurse Assistants at the Defendant's medical
facility.
Christus offers a full continuum of care, from temporary respite
care, to long-term skilled nursing, to hospice services.[BN]
The Plaintiff is represented by:
Ricardo J. Prieto, Esq.
Melinda Arbuckle, Esq.
Taneska Jones, Esq.
SHELLIST | LAZARZ | SLOBIN LLP
11 Greenway Plaza, Suite 1515
Houston, TX 77046
Phone: (713) 621-2277
Facsimile: (713) 621-0993
Email: rprieto@eeoc.net
marbuckle@eeoc.net
tjones@eeoc.net
CINCINNATI INSURANCE: Troy's Consolidated Amended Suit Dismissed
----------------------------------------------------------------
In the case, TROY STACY ENTERPRISES INC., SWEARINGEN SMILES LLC,
ELEISHA J. NICKOLES DDS, REEDS JEWELERS OF NIAGARA FALLS, INC.,
BURNING BROTHERS BREWING LLC, CHICAGO MAGIC LOUNGE LLC, AND CDC
CATERING, INC. T/A BROOKSIDE MANOR, individually and on behalf of
all others similarly situated, Plaintiffs v. THE CINCINNATI
INSURANCE COMPANY, THE CINCINNATI CASUALTY COMPANY, THE CINCINNATI
INDEMNITY COMPANY, AND CINCINNATI FINANCIAL CORPORATION,
Defendants. This Documents Relates to: All actions, Master Case No.
1:20-cv-312 (S.D. Ohio), Judge Matthew W. McFarland of the U.S.
District Court for the Southern District of Ohio, Western Division,
Cincinnati, grants the Defendants' motion to dismiss and denies as
moot their motion to stay.
Background
These consolidated actions arise from business closures related to
the COVID-19 pandemic and the resulting economic shutdowns. After
the Court consolidated these claims, the Plaintiffs filed a
Consolidated Amended Class Action Complaint.
The Plaintiffs, like so many of the rest of us the past year and a
half, have endured significant burdens because of the SARS-CoV-2
virus, commonly known as novel coronavirus, and the disease it
causes, COVID-19. Among the pandemic's many other consequences,
interruptions in commerce have caused businesses significant losses
in profits. In these consolidated actions, seven Plaintiff
businesses seek insurance coverage from their insurer for "direct
physical loss or damage" to their property. The Plaintiffs hail
from mostly different states and run mostly different kinds of
businesses.
Though they run different kinds of businesses, the Plaintiffs have
all been forced to reduce or suspend their operations due to the
COVID-19 pandemic. The virus has allegedly contaminated their
properties. People who have been present on insured property have
tested positive for COVID-19. Since the virus poses a threat to
people's health, the businesses have had to disinfect and
reconfigure their commercial spaces. And, in response to the
COVID-19 pandemic, the Plaintiffs' state and local governments
ordered extensive shutdowns. In short, because of COVID-19 and the
resulting shutdown orders, the Plaintiffs could not run their
businesses as they normally would.
The Plaintiffs all had insurance policies with Cincinnati. In those
policies, Cincinnati agreed to provide coverage for lost "Business
Income": "We will pay for the actual loss of Business Income ...
you sustain due to the necessary suspension of your operations
during the period of restoration. The suspension must be caused by
direct loss to property at a premises caused by or resulting from
any Covered Cause of Loss."
The Plaintiffs sought coverage under the "Business Income," "Extra
Expense," and "Civil Authority" provisions. The Defendants
(collectively, "Cincinnati") denied coverage. These lawsuits
followed. The Court consolidated them in January 2021. The
Plaintiffs bring four claims for breach of contract, seeking
business income coverage, civil authority coverage, extra expense
coverage, and sue-and-labor coverage. They also bring four claims
for declaratory judgment under the same four coverage provisions.
Now before the Court are motions to dismiss and to stay filed by
Cincinnati.
Law and Analysis
I. Conflicts of Law
Cincinnati appears to concede that the laws of Pennsylvania, New
York, Ohio, Illinois, Minnesota, and West Virginia "potentially
apply" but cites mostly Ohio law. Yet it revises this position in
its Reply and maintains that Ohio law controls. The Plaintiffs
assert that the various states' laws apply, noting that some states
handle contractual ambiguities differently and that Pennsylvania
and West Virginia apply the reasonable expectations doctrine.
When the parties have not designated which state's law applies, the
court considers the place of contracting, the place where the
parties negotiated the contract, the place of performance, the
location of the subject matter of the contract, and the residence
and place of incorporation and place of business of the parties.
Judge McFarland finds evidence tending to show that the Plaintiffs
contracted and negotiated their insurance policies in their own
states with local agencies. Those factors cut in favor of applying
the law of each Plaintiff's state of residence. Next is the place
of performance; in insurance cases, the place where an insurance
policy is performed is the place where the insurance benefits are
(or would be) paid. In the case, that would be the address of the
insured businesses as reflected in the declarations page of their
respective insurance policies -- in other words, the state where
each Plaintiff resides. As for the location of the subject matter,
that factor can be "quite important" in insurance cases. And, in
the case, these Plaintiffs bought insurance policies to protect
goods located in their states of residence. That tilts the balance
in favor of applying the law of each Plaintiff's state of
residence.
Since the first four factors weigh in favor of applying the laws of
the various states represented in the case, including the
particularly weighty subject-matter factor, Judge McFarland need
not reach the final factor. He considers the applicable state laws
of Pennsylvania, New York, Ohio, Illinois, Minnesota, and West
Virginia, as they relate to each Plaintiff.
II. Business Income Coverage
These contractual disputes are over whether the presence and
contamination of SARS-CoV-2 on insured property or the resulting
governmental shutdown orders constitute "direct accidental physical
loss or accidental physical damage." The parties agree that
business income coverage depends on the answer to that question.
All of the state laws involved in the case hold to the traditional
principles of contract interpretation. A court's primary goal in
construing a written contract is to give effect to the parties'
intent.
The Plaintiffs allege that the virus contaminated their insured
properties. They also claim that government-mandated shutdowns
imposed physical limits on their properties. Their theory is that
the presence of the virus and the resulting economic shutdowns
caused physical loss to covered property.
Judge McFarland holds that (i) Brookside Manor (Pennsylvania)
cannot plausibly allege "direct physical loss" or entitlement to
business income coverage; (ii) Reeds Jewelers (New York) has not
stated a claim for business income coverage; (iii) the Ohio
Plaintiffs fail to plausibly raise a claim for business income
coverage; (iv) Chicago Magic Lounge (Illinois) fails to articulate
a claim for business income coverage under their policy; (v)
Burning Brothers (Minnesota) fails to state a claim for business
income coverage; (vi) Nickoles Virginia) too fails to plausibly
allege entitlement to business income coverage; and (vii) the
Plaintiffs have not stated a claim for business income coverage.
III. Civil Authority Coverage
Cincinnati owes the Plaintiffs "Civil Authority" coverage in the
event that a "Covered Cause of Loss causes damage to property other
than Covered Property" and an "action of civil authority prohibits
access" to the insured property. Other conditions also apply,
including that "access to the area immediately surrounding the
damaged property is prohibited by civil authority as a result of
the damage."
Civil authority coverage thus requires at least three things.
First, something must cause damage to property other than the
insured property. Second, a civil authority must prohibit access to
the insured location. Third, a civil authority must also prohibit
access to the area surrounding the "damaged property."
The Plaintiffs allege that they are each located in the proximity
of hospitals where COVID-19 was present. The presence of the virus
and the disease, they allege, caused "physical damage" at those
properties. But for the same reasons that viral contamination of
the insured property does not constitute direct physical loss or
damage, the virus or the disease at neighboring property does not
either. Without "damage to property," there can be no civil
authority coverage. Since the Plaintiffs have not plausibly alleged
"damage to property" -- a necessary element to civil authority
coverage -- they fail to state a claim for such coverage.
IV. Extra Expense Coverage
The policies require Cincinnati to pay the extra expenses an
insured sustains during a "period of restoration." (E.g., Craft &
Vinyl Policy, Doc. 61-1, Pg. ID 3012.) "Extra Expense" refers to
necessary expenses an insured incurs during the "period of
restoration" that the insured would not have sustained "if there
had been no direct `loss' to property caused by or resulting from a
Covered Cause of Loss." (Id.)
Extra Expense coverage is thus tethered, like Business Income
coverage, to a direct loss. As there was no direct loss here,
Plaintiffs have not plausibly alleged entitlement to Extra Expense
coverage.
V. Sue and Labor Coverage
The policies contain a section entitled "Duties in the Event of
Loss or Damage." It provides that, in the event of "loss" to
insured property, an insured "must see that a list of duties are
done in order for coverage for apply." The Plaintiffs characterize
this section as providing for "Sue and Labor" coverage. Cincinnati
argues that the Sue and Labor provision is not even coverage, but a
condition of the policies; and, even if it was coverage, it would
not apply here because there is no covered loss.
Cincinnati is correct, Judge McFarland finds. First, the "Duties"
section is preconditioned on the event of a "loss." As there is no
loss, this section does not apply. Second, the "Duties" section
does not describe coverage -- rather, it lays out an insured's
obligations to ensure that separate coverage applies. Third,
nothing in the "Duties" section sets forth a duty for Cincinnati to
pay.
For these reasons, the Plaintiffs have failed to state a claim for
Sue and Labor coverage.
Conclusion
Judge McFarland concludes that the Plaintiffs have weathered more
than their fair share of the unfortunate circumstances that the
COVID-19 pandemic has caused. For the reasons stated, however,
nothing in their insurance policies plausibly provides for the
coverage they seek. Accordingly, Judge McFarland grants the motion
to dismiss and denies the motion to stay as moot.
Judge McFarland terminates the following cases: (1) Troy Stacy
Enterprises, Inc., et al. v. Cincinnati Insurance Company, et al.,
1:20-cv-312; (2) Swearingen Smiles LLC, et al v. Cincinnati
Insurance Company, et al., 1:20-cv-517; (3) Reeds Jewelers of
Niagara Falls, Inc. v. Cincinnati Insurance Company, 1:20-cv-649;
and (4) Burning Brothers Brewing LLC, et al. v. Cincinnati
Insurance Company, 1:20-cv-920.
A full-text copy of the Court's Sept. 24, 2021 Order is available
at https://tinyurl.com/3j5b9e53 from Leagle.com.
CITIZENS ARTS CLUB: Siliki Sues Over Unpaid Compensations
---------------------------------------------------------
Flavien Siliki, on behalf of himself and all others similarly
situated v. CITIZENS ARTS CLUB, INC. d/b/a/ NORWOOD; ALAN LINN,
individually and as an Officer, Director, and/or Principal of
NORWOOD, Case No. 1:21-cv-08162 (S.D.N.Y., Oct. 2, 2021), is
brought to contend that the Defendants violated the Fair Labor
Standards Act, the New York Labor Law, the New York Codes, Rules
and Regulations ("NYCRR"); by knowingly requiring, suffering, or
permitting the Plaintiff and other members of the putative FLSA
Collective to be misclassified as independent contractors and theft
of wages.
The Plaintiff brings this action pursuant to the NYLL and the NYCRR
for (i) incorrectly paid wages; (ii) untimely paid wages; (iii)
unpaid minimum wages; (iv) unpaid "spread of hours" pay for each
day worked in excess of ten (10) hours; (v) improper wage
statements and notices pursuant to the NYLL, and is entitled to
recover: (a) unpaid tips/gratuities; (b) unpaid minimum wages; (c)
unpaid, deducted, and incorrectly paid wages; (d) unpaid "spread of
hours" pay; (e) unpaid "call-in" pay; (f) liquidated damages; (g)
penalties; (h)interest; (i) attorneys' fees and costs; and (j) such
other and further relief as this Court finds necessary and proper,
says the complaint.
The Plaintiff was employed by the Defendants as an Evening General
Manger.
Norwood is a privately-owned business organized under the laws of
the
State of New York.[BN]
The Plaintiff is represented by:
Fred V. Charles, Esq.
1612 Central Avenue
Far Rockaway, NY 11691
Phone: (646) 494-2662
CONSTELLIS INTEGRATED: Hines Appeals Case Dismissal to 9th Cir.
---------------------------------------------------------------
Plaintiff Delvin Hines filed an appeal from a court ruling entered
in the lawsuit entitled Delvin Hines, an individual, on behalf of
himself and all others similarly situated, Plaintiff v. Constellis
Integrated Risk Management Services, a Delaware corporation,
Centerra Services International, Inc., a Delaware corporation,
Centerra Group, LLC, a forfeited Delaware limited liability company
and Michael Chandless, an individual, Defendants, Case No.
2:20-cv-06782-JWH-PLA, in the U.S. District Court for the Central
District of California, Los Angeles.
As previously reported in the Class Action Reporter, this lawsuit
was transferred from the Los Angeles Superior Court with the
assigned Case No. 20STCV20377 to the United States District Court
for the Central District of California on July 29, 2020.
The Plaintiff, on behalf of himself and all other similarly
situated employees, brings this action pursuant to the California
Labor Code seeking, inter alia, overtime wages, minimum wages
premium wages for missed meal and rest periods, penalties and
reasonable attorneys' fees and costs.
Mr. Hines now seeks a review of the Court's Order and Judgment
dated Aug. 24, 2021, granting Defendants' motion to dismiss the
second amended complaint.
The appellate case is captioned as Delvin Hines v. Constellis
Integrated Risk, et al., Case No. 21-56048, in the United States
Court of Appeals for the Ninth Circuit, filed on Sept. 24, 2021.
The briefing schedule in the Appellate Case states that:
-- Appellant Delvin Hines Mediation Questionnaire was due on
Oct. 1, 2021;
-- Appellant Delvin Hines opening brief is due on Nov. 22,
2021;
-- Appellees Centerra Group, LLC, Centerra Services
International, Inc. and Constellis Integrated Risk Management
Services answering brief is due on Dec. 22, 2021; and
-- Appellant's optional reply brief is due 21 days after service
of the answering brief.[BN]
Plaintiff-Appellant DELVIN HINES, an individual, on behalf of
himself and all others similarly situated, is represented by:
Diego Aviles, Esq.
BIBIYAN LAW GROUP, PC
8484 Wilshire Boulevard, Suite 500
Beverly Hills, CA 90211
Telephone: (310) 438-5555
E-mail: diego@tomorrowlaw.com
Defendants-Appellees CONSTELLIS INTEGRATED RISK MANAGEMENT
SERVICES, a Delaware corporation; CENTERRA SERVICES INTERNATIONAL,
INC., a Delaware corporation; and CENTERRA GROUP, LLC, a forfeited
Delaware limited liability company, are represented by:
Sabrina Alexis Beldner, Esq.
MCGUIREWOODS LLP
1800 Century Park East, 8th Floor
Los Angeles, CA 90067
Telephone: (310) 956-3419
E-mail: sbeldner@mcguirewoods.com
- and -
Sylvia Kim, Esq.
BAKER & HOSTETLER, LLP
600 Montgomery Street, Suite 3100
San Francisco, CA 94111
Telephone: (415) 659-2618
CONVERGENT OUTSOURCING: Filing of Class Cert Bid Due Feb. 25, 2022
------------------------------------------------------------------
In the class action lawsuit captioned as LUCINDA SOUFFRANT,
individually and on behalf of all others similarly situated, v.
CONVERGENT OUTSOURCING, INC. and JOHN DOES 1-25, Case No.
3:21-cv-00631-TJC-PDB (M.D. Fla.), the Court entered a case
management and scheduling order as follows:
-- Deadline for providing mandatory September 27, 2021
initial disclosures.
-- Deadline for moving to join a October 25, 2021
party or amend the pleadings.
-- Deadline for disclosing expert
reports.
Plaintiff: October 25, 2021
Defendant: December 17, 2021
Rebuttal: January 28, 2022
-- Deadline to file class February 25, 2022
certification motions.
-- Mediation
Deadline: June 30, 2022
Mediator: James R. Betts
Address: 710 S. Boulevard
Tampa, FL 33606
Telephone: (813) 254-3302
-- Deadline for completing July 29, 2022
discovery and filing motions
to compel.
-- Deadline for filing dispositive August 31, 2022
and Daubert motions (Responses
due 21 days after service
unless otherwise ordered;
summary judgment replies
(limited to 7 pages) permitted
14 days after service of a
response)
-- Deadline for filing the joint January 19, 2023
final pretrial statement and all
other motions including motions
in limine.
-- Date and time of the final January 25, 2023
pretrial conference.
Trial Term Begins February 6, 2023
A copy of the Court's order dated Sept. 29, 2021 is available from
PacerMonitor.com at https://bit.ly/3uKLkbX at no extra charge.[CC]
CORECIVIC INC: Settles Securities Class Action Lawsuit
------------------------------------------------------
Private prison company CoreCivic, formerly known as the Corrections
Corporation of America (CCA), has settled a shareholder action for
$56 million. Claim forms are due November 19, and Chicago Clearing
Corporation (CCC) is already preparing claims for institutional
investors.
The class action complaint, first filed in August of 2016, followed
the announcement by the Department of Justice that the government
would end its use of private prisons, including those operated by
CCA. Deputy Attorney General Sally Yates stated that "time has
shown that [private prisons] compare poorly to our own Bureau
facilities. They simply do not provide the same level of
correctional services, programs, and resources; they do not save
substantially on costs; and as noted in a recent report by the
Department's Office of Inspector General, they do not maintain the
same level of safety and security." After this announcement, the
price of CCA common stock dropped 39.45% in a single day.
(For full historical context, the Trump administration soon revoked
this Obama administration initiative. The Biden admin has revived
it, and the Great Wheel continues to spin: for now clockwise,
tomorrow counterclockwise; on and on and back and forth it goes . .
. . )
CCC has been tracking this litigation since it was first filed on
August 23, 2016. It is one of thousands of complaints we have
tracked in the past 15 years, and one of over 130 settlements with
claim filing deadlines due in this year alone. Chicago Clearing
Corporation has either filed or will file claims in every one of
these cases. We have participated in nearly every class action
securities suit since 2006.
With the team at CCC on your side, you not only keep up with the
flow, but you have the piece of mind knowing that we have filed
millions of claims in well over 1000 settlements. We have the
expertise, the diligence, the vast experience to steward any and
every claim from the date a settlement is announced through the
final distribution. Give us a call today, and we'll get
started.[GN]
CPT GROUP: Announces Proposed Settlement in a Class Action
----------------------------------------------------------
CPT Group, Inc., announces a proposed settlement in a class action
lawsuit called Dominique Morrison v. Ross Stores, Inc., N.D. Cal.,
Case No. 4:18-cv-02671-YGR (the "Settlement"). This notice provides
a summary of your rights and options.
What is this about? Plaintiff Dominique Morrison claims that the
thread count on cotton/polyester sheets imported and supplied by AQ
Textiles, LLC and sold by Ross ("Ross" or "Defendant") was false or
deceptive. Ross stands by its advertising and denies it did
anything wrong. The Court has not decided which side is right.
Instead, the parties have decided to settle this case.
Who is affected? You are a Class Member if you purchased
polyester-cotton blend ("Chief Value Cotton" or "CVC") sheet sets
supplied by AQ to Ross and sold by Ross between May 7, 2014, and
November 29, 2021.
What does the Settlement provide? The Settlement provides
injunctive relief.
Injunctive Relief: Pursuant to the settlement Ross requires AQ to
certify in writing on an annual basis that the polyester/cotton
sheets it supplies to Ross comply with the actual thread count
pursuant to industry standard ASTM D3775, as officially interpreted
and amended from time to time, or any successor industry standard
for textile thread count, and to report in writing on an annual
basis as to whether there are any known investigations by any
outside entity or pending claims or lawsuits regarding AQ's
representation regarding thread count. Ross will also require AQ to
supply a passing test report for thread count for each new style of
polyester/cotton sheets that it supplies to Ross.
What are my options? You can do nothing, exclude yourself, or
object to the Settlement.
Do Nothing: If you do nothing, you will give up your right to sue
or continue to sue Ross for the claims in this case.[GN]
CVS PHARMACY: Court Dismisses Fuog Class Suit With Leave to Amend
-----------------------------------------------------------------
In the case, EDITH FUOG, Plaintiff v. CVS PHARMACY, INC., et al.,
Defendants, C.A. No. 20-337 WES (D.R.I.), Judge William E. Smith of
the U.S. District Court for the District of Rhode Island granted
the Defendant's Motion to Dismiss.
Background
In the putative class action, the Plaintiff alleges three counts
against Defendants CVS Pharmacy, Inc. and Caremark PHC, L.L.C.
("CVS"): First, unlawful discrimination under Title III of the
Americans with Disabilities Act ("ADA"), 42 U.S.C. Section
12182(a); second, unlawful discrimination under the Rehabilitation
Act, 29 U.S.C. Section 794(a); and third, unlawful discrimination
under the Affordable Care Act ("ACA"), 42 U.S.C. Section 18116(a).
The Plaintiff seeks to assert these claims on behalf of herself and
a class that includes, with certain limitations, all United States
residents who: 1) were issued prescriptions for opioid medication
for chronic pain, pain associated with a cancer diagnosis or
treatment, palliative or nursing home care, or sickle cell anemia;
and 2) were unable to get their prescriptions filled, filled as
written, or filled without also submitting non-opioid prescriptions
or purchasing other products.
The Plaintiff suffers from chronic pain after recovering from,
inter alia, breast cancer and a rare bacterial infection. She has
been treated by a physician since 2013 and has been prescribed
prescription opioid medications since 2014. Starting in 2017,
pharmacists at multiple CVS locations in Florida refused to fill
her opioid prescriptions, sometimes telling her that her opioid
prescriptions could not be filled, or that the medication was not
in stock. At one point, a pharmacist allegedly yelled at her in
front of other customers while refusing to fulfill her
prescriptions.
The Plaintiff contends that CVS has recently implemented a series
of policies and practices "to comply with federal mandates and the
CDC Guideline for opioid prescriptions." Though she has not seen
such policies, she contends that CVS uses "internal checklists,
databases and data analytics to screen opioid prescriptions." She
claims that these policies have resulted in the Plaintiff and
others being "flagged or otherwise included on a list or database
as potentially abusing opioid medication," and that CVS or CVS
pharmacists require "that opioid prescriptions not be filled unless
accompanied with one or more prescriptions for non-opioid
medication."
The Plaintiff also claims that CVS or CVS pharmacists have adopted
or may adopt a requirement "that opioid prescriptions not be filled
unless and until the person seeking the prescription provide[s]
comprehensive medical records." Finally, she alleges that CVS has a
policy which limits the dosage and duration of opioid prescriptions
that it will fill. The Plaintiff contends that her difficulties
getting CVS to fill her prescriptions stem from these polices and
that they amount to discrimination under the ADA and related
statutes.
Discussion
A. Standing
The Defendants first contest the Plaintiff's standing, asserting
that some of CVS's alleged policies were never applied to her. They
claim the Plaintiff never "alleged that a pharmacist refused to
fill an opioid prescription because she did not also present a
prescription for non-opioid medication," and that no "CVS
pharmacist ever requested that Ms. Fuog provide medical records or
refused to fill her opioid prescriptions because she did not
provide them."
Judge Smith finds that CVS pharmacists refused to fulfill the
Plaintiff's prescriptions on multiple occasions and in various CVS
locations. Taking the facts pled by the Plaintiff as true, CVS' own
pharmacists repeatedly refused to fulfill her prescriptions while
referencing changed policies, lack of stock, and various other
reasons. The Defendants' attempt to distinguish the Plaintiff's
experiences from these policies is unpersuasive. The Plaintiff has
encountered significant barriers impeding her access, and so she
has standing on this basis.
The Defendants also argue that the Plaintiff's claims against
Caremark PHC, L.L.C., which provides prescription benefit
management services, should be dismissed because the Complaint
contains no factual allegations that specifically involved Caremark
PHC. Pharmacy benefit managers ("PBMs") are "private businesses
that contract with health plan sponsors to help administer the
prescription drug benefits that health plan sponsors provide to
their members."
But, as the Plaintiff points out, CVS' own website notes Caremark
PHC's involvement in CVS' efforts to prevent opioid abuse. Further,
she alleges that beginning in January 2019, her insurance company
stopped paying for her prescription opioid medication. There is
therefore a sufficient link between Caremark PHC and CVS to find
standing as to Caremark.
B. Failure to State a Claim
i. Discrimination on the Basis of Disability
For their part, CVS Defendants argue that not all those who have
been prescribed opioids are disabled within the meaning of the ADA.
Thus, the policies described in the Complaint are facially neutral,
applying to the disabled and non-disabled alike. In response, the
Plaintiff contends that "all users of prescription opioid
medication are `disabled' within the meaning of the ADA, RA, and
ACA," because "their pain condition renders them disabled or
because those seeking opioids for pain conditions 'may be regarded'
as disabled within the meaning of the statute."
Judge Smith holds that the Plaintiff's argument fails. Of course,
many people with chronic pain who need prescription opioid
medication are disabled, as many courts have found. Therefore, not
all of those with chronic pain are disabled within the meaning of
the ADA.
Moreover, if chronic pain patients are not per se disabled, the
Plaintiff's argument is even further afield for acute pain patients
who require opioid prescriptions. The ADA's interpretive guidelines
provide that "temporary, non-chronic impairments of short duration,
with little or no long term or permanent impact, are usually not
disabilities. Such impairments may include, but are not limited to,
broken limbs, sprained joints, concussions, appendicitis, and
influenza." As these guidelines illustrate, many patients who
require a prescription for opioids for a short period of time but
suffer no long-term impact to their physical health are not
disabled within the meaning of the relevant statutes.
Because the challenged polices apply equally to disabled and
non-disabled individuals, Judge Smith holds that the Plaintiff has
not alleged any facts supporting a facial theory of intentional
discrimination. The Plaintiff therefore can only proceed on
alternate theories: disparate impact under the meaningful access
standard, or a failure to provide a necessary and reasonable
accommodation.
ii. Disparate Impact
Judge Smith finds that the Complaint gives the Court no basis to
assess or even estimate what portions of those affected by CVS'
alleged policies are disabled within the meaning of the ADA. As he
explained, some number, but not all or perhaps even most of those
with opioid prescriptions are disabled within the meaning of the
ADA. Without some well-pleaded facts to support the degree of the
disparate impact alleged, Plaintiff's meaningful access theory must
fail. There may well be cases where it is difficult to draw the
line between a permissibly increased likelihood that a disabled
individual is affected by a facially neutral policy, and
"systemically excluding people with disabilities." No court can
draw that line in the dark on the basis of possibility and
conjecture.
iii. Reasonable Accommodation
The Plaintiff's final theory concerns a lack of a reasonable
accommodation. In promising "the full and equal enjoyment of the
goods and services" of privately operated public accommodations,
Title III of the ADA requires "reasonable modifications" as
"necessary to afford such goods and services to individuals with
disabilities." To establish a prima facie reasonable accommodation
claim, a plaintiff must show that the requested modification is
both "reasonable" and "necessary" to accommodate the plaintiff's
disability.
Judge Smith finds that while the Plaintiff has complained to CVS
about its policies, it is not clear that she ever identified or
proposed a modification to them or clarified with CVS whether there
were any additional steps she could take to comply. Given that the
Plaintiff has not alleged that she has requested reasonable
accommodations from CVS, and that the accommodations asserted here
would likely amount to ending CVS's policy altogether, she has
failed to state a claim against CVS under the reasonable
accommodation theory.
Conclusion
With all this said, Judge Smith is sympathetic to the plight of the
Plaintiff and those similarly situated. Nevertheless, for the
reasons given, he granted the Defendant's Motion to Dismiss.
Because amendment to cure the deficiencies in the complaint would
not be futile, the action is dismissed with leave to amend the
complaint. If the Plaintiff choses to do so, the amended complaint
must be filed within 30 days of the Order.
A full-text copy of the Court's Sept. 24, 2021 Memorandum & Order
is available at https://tinyurl.com/4s4bkce8 from Leagle.com.
DELAWARE NORTH: Morand-Doxzon Appeals Partly OK'd Class Cert. Bid
-----------------------------------------------------------------
Plaintiffs Melissa Morand-Doxzon, et al., filed an appeal from a
court ruling entered in the lawsuit entitled MELISSA MORAND-DOXZON,
on behalf of herself, all others similarly situated, and on behalf
of the general public, v. DELAWARE NORTH COMPANIES SPORTSERVICE,
INC; CALIFORNIA SPORTSERVICE INC.; and DOES 1-100, Case No.
3:20-cv-01258-DMS-BLM, in the U.S. District Court for the Southern
District of California, San Diego.
As reported in the Class Action Reporter on Sep. 17, 2021, the Hon.
Judge Dana M. Sabraw entered an order granting in part and denying
in part plaintiff's motion for class certification.
The Plaintiffs in this case allege that during their employment,
the Defendants "have not paid for all time worked while the
Non-Exempt Employees are performing work and/or are subject to
[Defendants'] control."
The Court found that individualized questions about (1) the actual
duration of each employee's individual meal and rest periods, (2)
how long it took each employee to undergo security screening upon
reentering the ballpark during break times, and (3) whether
employees were disciplined for breaks exceeding ten- and
thirty-minute durations predominate over common questions regarding
Defendants' written policies. Accordingly, the Court denied
certification of the proposed Meal Period and Rest Period
Subclasses.
The Plaintiffs seek a review of of Judge Sabraw's order.
The appellate case is captioned as Melissa Morand-Doxzon, et al. v.
Delaware North Companies Sport, et al., Case No. 21-80101, in the
United States Court of Appeals for the Ninth Circuit, filed on Sep.
24, 2021.[BN]
Plaintiffs-Petitioners MELISSA MORAND-DOXZON and ROSS GERACI, on
behalf of themselves and all others similarly situated, and on
behalf of the general public, are represented by:
David Mara, Esq.
Jill Marie Vecchi, Esq.
MARA LAW FIRM PC
2650 Camino Del Rio North, Suite 205
San Diego, CA 92108
Telephone: (619) 234-2833
E-mail: dmara@maralawfirm.com
jvecchi@maralawfirm.com
Defendants-Respondents DELAWARE NORTH COMPANIES SPORTSERVICE, INC.,
CALIFORNIA SPORTSERVICE, INC., and SAN DIEGO SPORTSERVICE, INC. are
represented by:
Jonathan L. Brophy, Esq.
Jon D. Meer, Esq.
Bethany Pelliconi, Esq.
SEYFARTH SHAW, LLP
2029 Century Park East, Suite 3500
Los Angeles, CA 90067-3021
Telephone: (310) 201-1532
E-mail: jbrophy@seyfarth.com
jmeer@seyfarth.com
bpelliconi@seyfarth.com
- and -
Peter Choi, Esq.
SEYFARTH SHAW LLP
601 South Figueroa Street, Suite 3300
Los Angeles, CA 90017
Telephone: (213) 270-9660
DEVON ENERGY: Ct. Enters Class Certification Scheduling Order
-------------------------------------------------------------
In the class action lawsuit captioned as COOK CHILDREN'S HEALTH
FOUNDATION a/k/a W.I. COOK FOUNDATION, INC., on behalf of itself
and a class of similarly situated persons, v. DEVON ENERGY
CORPORATION and DEVON ENERGY PRODUCTION COMPANY, L.P., Case No.
4:21-cv-00454-ALM (E.D. Tex.), the Hon. Judge Amos L. Mazzant
entered a scheduling order as follows:
-- October 6, 2021 Deadline for motions to transfer.
-- January 13, 2022 Deadline for Plaintiff to file
amended pleadings. (A motion for
leave to amend is required.)
-- January 13, 2022 Deadline to add parties.
-- February 3, 2022 Deadline for Defendants' final
amended pleadings. (A motion for
leave to amend is required.)
-- September 15, 2022 Date by which the parties shall
notify the Court of the name,
address, and telephone number of
the agreed-upon mediator, or
request that the Court select a
mediator, if they are unable to
agree on one.
-- November 1, 2022 Mediation must occur by this date.
-- July 13, 2022 Deadline to complete discovery
regarding class certification
issues.
-- August 3, 2022 Deadline for Plaintiff's Disclosure
of Expert Testimony
-- August 3, 2022 Plaintiff's Motion for Class
Certification Due
-- September 2, 2022 Deadline for Defendant's Disclosure
of Expert Testimony
-- September 2, 2022 Deadline for Defendants' Response
regarding Class Certification
-- September 23, 2022 Deadline for Plaintiff's Reply in
Support of Motion for Class
Certification
-- October 28, 2022 Hearing on motions for class
certification
A copy of the Court's order dated Sept. 29, 2021 is available from
PacerMonitor.com at https://bit.ly/3Fogk6v at no extra charge.[CC]
DILLY KEY: Ramos Sues Over Failure to Pay Minimum, Overtime Wages
-----------------------------------------------------------------
Felipe Ramos, on behalf of himself and all others similarly
situated v. DILLY KEY RESTAURANT HOLDING, LLC, Case No.
4:21-cv-10097-XXXX (S.D. Fla., Oct. 4, 2021), is brought under the
Fair Labor Standards Act for the Defendant's failure to pay servers
and bartenders minimum and overtime wages.
The Defendant violated federal minimum wage law because it failed
to compensate restaurant servers and bartenders for certain hours
worked during shifts. The Defendant further required servers and
bartenders to perform off-the-clock work that often caused overtime
wage violations which are not referenced on the Defendant's time
records. Defendant also violated the minimum wage requirements
under federal law because it compensated restaurant servers and
bartenders at the reduced "tip credit" wage notwithstanding that
servers and bartenders were required to spend more than 20% of
their shifts performing non-tipped duties and responsibilities. As
a result, the Plaintiff, and similarly situated restaurant servers
and bartenders have been denied federally mandated minimum and
overtime wages in one or more workweeks during the relevant time
period, says the complaint.
The Plaintiff worked for the Defendant as a server from March 2017
until June 4, 2021.
The Defendant owns, operates and controls multiple restaurants
located in Key Largo, Florida, known to the public as Senor
Frijoles, Sundowners, and Cactus Jacks.[BN]
The Plaintiff is represented by:
Jordan Richards, Esq.
Jake Blumstein, Esq.
USA EMPLOYMENT LAWYERS-JORDAN RICHARDS, PLLC
805 E. Broward Blvd. Suite 301
Fort Lauderdale, Florida 33301
Phone: (954) 871-0050
Email: Jordan@jordanrichardspllc.com
Jake@jordanrichardspllc.com
DOLLAR GENERAL: Hauger Sues Over Mislabeled Graham Crackers
-----------------------------------------------------------
Dawn Hauger, individually and on behalf of all others similarly
situated v. Dollar General Corporation, Case No. 1:21-cv-01270
(C.D. Ill., Sept. 23, 2021) arises from the Defendant's alleged
violations of the Illinois Consumer Fraud and Deceptive Business
Practices Act and the Magnuson Moss Warranty Act.
According to the complaint, the Defendant's front label
representations of the crackers under the Clover Valley brand
include "Honey Graham Crackers," a dripping honey dipper, "Made
With Real Honey," "Contains 8g of whole grain per serving," and "No
high fructose corny syrup."
Reasonable consumers, including the Plaintiff, expect a food
identified by the name of a whole grain flour will contain mainly
whole grain flour, and more whole grain flour than if the food was
merely labeled, "Crackers." However, the ingredient allegedly list
reveals "Enriched Wheat Flour" is the predominant flour, indicated
by its listing ahead of "Graham Flour." The representations further
convey that honey is the primary and/or a significant source as a
sweetener even though the product is sweetened primarily with sugar
and contains a miniscule amount of honey, says the suit.
Dollar General Corporation is an American chain of variety stores
headquartered in Goodlettsville, Tennessee.[BN]
The Plaintiff is represented by:
Spencer Sheehan, Esq.
SHEEHAN & ASSOCIATES, P.C.
60 Cuttermill Rd Ste 409
Great Neck NY 11021
Telephone: (516) 268-7080
E-mail: spencer@spencersheehan.com
DOLLAR GENERAL: Pays $1.8M to End Infants' False Ad Lawsuit
-----------------------------------------------------------
Anna Bradley-Smith at topclassactions.com reports that dollar
General and consumers have reached a $1.8 million settlement ending
a class action lawsuit that alleged that the company inflated the
price of infant's acetaminophen. With proof of purchase, consumers
are entitled to an unlimited number of refunds of $1.70 per
infants' product.
According to the class action lawsuit filed in 2020 by lead
plaintiff David Levy, Dolgencorp LLC, Dollar General's parent
company, violated state and federal consumer laws by overcharging
parents for its DG Infants' Pain and Fever Relief medication and
labeling the product in a way that makes it seem to be specially
formulated.
In fact, Levy says the medicine is the same as the DG Children's
Pain and Fever Relief, but Dollar General charges three times as
much for it. The Dollar General pain relievers for infants and
children are both liquid and contain the same 160 mg of
acetaminophen per dose, and call for the same dosage amount, Levy's
class action lawsuit says. The infants' medicine is packaged in a
2-ounce bottle, and the children's in an 8-ounce bottle.
"[The products] are interchangeable, and are therefore suitable for
infants and children, adjusting the dosage based only on the weight
and age of the child," Levy argued.
Claims in Dollar General Infant Acetaminophen Settlement
Dollar General reached the $1.8 million settlement with Levy and
other Class Members earlier this year, and it has now been
submitted for final approval.
Under the terms of the settlement, Class Members can receive an
unlimited number of partial refunds of $1.70 per infants' product
with proof of purchase, or $1.70 per infants' product up to a
maximum of $5.10 without proof of purchase.
The company has agreed that it will only sell the DG Health
Infants' Acetaminophen if it states that it is the same as the
cheaper DG Health Children's Acetaminophen.
Also under the agreement, Levy will receive $5,000 as the Class
representative and counsel will get $610,000.
Consumers have made similar false advertising claims about Equate
acetaminophen for infants sold by Walmart, Kroger Co.'s store brand
of infant acetaminophen, as well as Rite Aid's infant pain
reliever.
Did you purchase Dollar General infant's acetaminophen? Will you
take part in this settlement? Let us know in the comments section!
Levy is represented by Rachel Dapeer of Dapeer Law PA, Andrew J.
Shamis of Shamis & Gentile PA, Scott Edelsberg of Edelsberg Law PA
and Melissa S. Weiner of Pearson Simon & Warshaw LLP.
The Dollar General Infant's Acetaminophen Class Action Lawsuit is
David Levy, et al. v. DolGenCorp LLC, et al., Case No.
3:20-cv-01037, in the U.S. District Court for the Middle District
of Florida. [GN]
DYNCORP INT'L: Court Denies Bid to Certify Class in Del Fierro Suit
-------------------------------------------------------------------
In the case, RAMON DEL FIERRO, Plaintiff v. DYNCORP INTERNATIONAL
LLC, Defendants, Case No. CV 19-07091DDP (JCx) (C.D. Cal.), Judge
Dean D. Pregerson of the U.S. District Court for the Central
District of California denies Del Fierro's Motion for Class
Certification without prejudice.
Background
The Plaintiff worked for Defendant Dyncorp at the Point Mugu Naval
Air Station from December 2016 to July 2019. He alleges, on behalf
of a putative class, that Dyncorp violated California Labor Code
Section 226 by failing to provide wage statements that accurately
identified the applicable rate of pay and hours worked for certain
"shift premiums."
The Plaintiff now seeks to certify a class comprised of "all
current and former California non-exempt employees of Defendant
DynCorp International, LLC who were paid any shift premium wages
(including certification premiums) at any time from Aug. 14, 2018,
through the date that the class is certified."
Dyncorp points out, and the Plaintiff does not dispute, that
although he was employed at Point Mugu during the relevant class
period, fewer than 8% of the putative class members worked at the
same base. The remaining eighty-plus percent of the prospective
class members worked at several other facilities across California,
including seven other U.S. military bases: Naval Air Weapons
Station China Lake; National Training Center/Fort Irwin; Naval Air
Facility El Centro; Marine Corps Air Station Miramar; Naval Air
Station Lemoore; Joint Forces Training Base Los Alamitos; and
Mather Air Force Base. The parties differ as to what effect, if
any, this range of work locations has on class certification
questions.
Discussion
Certain of the Rule 23 factors, such as numerosity and commonality,
are not in dispute. The crux of the certification question
presently before the Court, however, is whether the Plaintiff has
satisfied the predominance, superiority, and, to a lesser degree,
typicality requirements, notwithstanding the fact that putative
class members are spread across eight separate military bases.
The Plaintiff alleges, on behalf of the putative class, violations
of California Labor Code Sectio 226(a)(9). That state law
provision, however, only applies within a federal enclave if (1)
the enclave was established after the enactment of Section
226(a)(9) or (2) Section 226(a)(9) represents only a minor change
to the "basic state law" in effect at the time the enclave was
established. Thus, as the Plaintiff appears to concede, it will be
necessary in the case to determine (1) whether each of the bases at
issue here is a federal enclave, (2) when that workplace became a
federal enclave, (3) what state law was in force at the time the
enclave was established, and (4) the extent to which Section
226(a)(9) alters that pre-existing state law. The Plaintiff
nevertheless contends that these questions are irrelevant at this
stage of proceedings.
As an initial matter, however, Judge Pregerson holds that questions
as to the applicability of the federal enclave doctrine are not
"merits" questions in the traditional sense, and speak less to
Dyncorp's actions or liability than to the Plaintiff's and the
class members' standing to bring state law claims in the first
instance. He says, although courts do, in the exercise of
discretion, sometimes defer questions of standing until after class
certification, courts typically do so only where certification is
"logically antecedent" to questions of standing, such as in cases
involving application of multiple states' laws, where certification
would cure any lack of standing. It is not such a case.
Certification of the proposed class would not resolve any questions
related to standing, which depend instead on federal enclave
analyses.
Furthermore, Judge Pregerson finds that to the extent standing
issues qualify as "merits" issues, he cannot simply ignore those
issues at this stage, as the Plaintiff would suggest. To the
contrary, he says, the Court "is required to examine the merits of
the underlying claim" to the extent necessary to determine whether
common questions exist. Nor would an analysis of the federal
enclave issues require a "mini-trial" in the case, where all of the
facts regarding the establishment of an enclave would appear to be
matters of public record beyond dispute. Having made virtually no
attempt to show whether the federal enclave doctrine applies
uniformly to the putative class members, Judge Pregerson holds that
the Plaintiff has failed to satisfy his burden to demonstrate that
questions common to the class predominate or that a class action is
the most efficient way to resolve class members' claims. For
similar reasons, the Plaintiff has not established that his claims
are typical of those of absent class members.
This is not to say however, that the mere existence of federal
enclave questions necessitates the conclusion, as Dyncorp suggests,
that individual questions predominate in the case, Judge Pregerson
finds. First, even though resolution of the remaining federal
enclave questions may require a separate analysis for each of the
seven remaining military bases, these analyses would not require an
individualized inquiry as to the status of each or any particular
class member. Furthermore, the Plaintiff "need only show that
common questions `predominate' over individual questions, not that
common questions exist to the complete exclusion of individual
questions."
To the extent that base-specific, as opposed to class
member-specific, inquiries qualify as "individual" questions, Judge
Pregerson cannot determine on the current briefing whether such
questions are sufficiently complex to predominate over the common
questions in the case. It may be, for example, that there is a
relatively straightforward answer to the question whether some or
all of the bases at issues here are federal enclaves, and/or
whether Section 226(a)(9) applies to those enclaves. As stated,
however, the Plaintiff has made no attempt to make such a showing.
Conclusion
For the reasons he stated, Judge Pregerson denied the Plaintiff's
Motion to Certify Class without prejudice.
A full-text copy of the Court's Sept. 24, 2021 Order is available
at https://tinyurl.com/55rybvzv from Leagle.com.
EARGO INC: Glancy Prongay Discloses Securities Class Action
-----------------------------------------------------------
Glancy Prongay & Murray LLP ("GPM"), a national investor rights law
firm, continues its investigation on behalf of Eargo, Inc. ("Eargo"
or the "Company") (NASDAQ: EAR) investors concerning the Company
and its officers' possible violations of the federal securities
laws.
If you suffered a loss on your Eargo investments or would like to
inquire about potentially pursuing claims to recover your loss
under the federal securities laws, you can submit your contact
information at https://www.glancylaw.com/cases/eargo-inc/. You can
also contact Charles H. Linehan, of GPM at 310-201-9150, Toll-Free
at 888-773-9224, or via email at shareholders@glancylaw.com to
learn more about your rights.
On September 22, 2021, after the market closed, Eargo revealed that
"it is the target of a criminal investigation by the U.S.
Department of Justice (the 'DOJ') related to insurance
reimbursement claims the Company has submitted on behalf of
customers covered by federal employee health plans." Moreover, the
DOJ is the "principal contact related to the subject matter of the
[ongoing] audit" of Eargo by an insurance company that is the
Company's largest third-party payor. As a result, Eargo withdrew
its full year financial guidance.
On this news, the Company's share price fell $14.81 per share, or
68.34%, to close at $6.86 per share on September 23, 2021, thereby
injuring investors.
Whistleblower Notice: Persons with non-public information regarding
Eargo should consider their options to aid the investigation or
take advantage of the SEC Whistleblower Program. Under the program,
whistleblowers who provide original information may receive rewards
totaling up to 30 percent of any successful recovery made by the
SEC. For more information, call Charles H. Linehan at 310-201-9150
or 888-773-9224 or email shareholders@glancylaw.com.
About GPM
Glancy Prongay & Murray LLP is a premier law firm representing
investors and consumers in securities litigation and other complex
class action litigation. ISS Securities Class Action Services has
consistently ranked GPM in its annual SCAS Top 50 Report. In 2018,
GPM was ranked a top five law firm in number of securities class
action settlements, and a top six law firm for total dollar size of
settlements. With four offices across the country, GPM's nearly 40
attorneys have won groundbreaking rulings and recovered billions of
dollars for investors and consumers in securities, antitrust,
consumer, and employment class actions. GPM's lawyers have handled
cases covering a wide spectrum of corporate misconduct including
cases involving financial restatements, internal control
weaknesses, earnings management, fraudulent earnings guidance and
forward looking statements, auditor misconduct, insider trading,
violations of FDA regulations, actions resulting in FDA and DOJ
investigations, and many other forms of corporate misconduct. GPM's
attorneys have worked on securities cases relating to nearly all
industries and sectors in the financial markets, including, energy,
consumer discretionary, consumer staples, real estate and REITs,
financial, insurance, information technology, health care, biotech,
cryptocurrency, medical devices, and many more. GPM's past
successes have been widely covered by leading news and industry
publications such as The Wall Street Journal, The Financial Times,
Bloomberg Businessweek, Reuters, the Associated Press, Barron's,
Investor's Business Daily, Forbes, and Money.
This press release may be considered Attorney Advertising in some
jurisdictions under the applicable law and ethical rules.
View source version on businesswire.com:
https://www.businesswire.com/news/home/20210924005552/en/ [GN]
EDEN CREAMERY: Court Tosses Kamal Bid for Voluntary Dismissal
--------------------------------------------------------------
In the class action lawsuit captioned as YOUSSIF KAMAL, GILLIAN
NEELY, RICHARD LICHTEN, SUSAN COX, NICK TOVAR, MICHELE KINMAN,
ASHLEY PETEFISH, and TERRI BROWN, on their own behalf and on behalf
of all others similarly situated, v. EDEN CREAMERY, LLC, dba HALO
TOP CREAMERY; and JUSTIN T. WOOLVERTON, Case No.
3:18-cv-01298-TWR-AGS (S.D. Cal.), the Hon. Judge Todd W. Robinson
entered an order denying the Plaintiffs' motion for voluntary
dismissal to the extent it seeks dismissal without prejudice.
The Court finds that any dismissal pursuant to Federal Rule of
Civil Procedure 41(a)(2) must be with prejudice. No later than 21
days from the date this Order is electronically docketed, the
Plaintiff shall file a notice indicating whether they (1) accept
dismissal of their individual claims with prejudice pursuant to
Rule 41(a)(2), or (2) choose to continue litigating this action in
this Court. Should Plaintiffs fail timely to file the ordered
notice, the Court will dismiss Plaintiffs' individual claims with
prejudice pursuant to Rule 41(a)(2) and Civil Local Rule 83.1(a).
A copy of the Court's order dated Sept. 29, 2021 is available from
PacerMonitor.com at https://bit.ly/3BgOgQe at no extra charge.[CC]
EDUCATIONAL COMMISSION: Issue-Class Cert. in Russell Suit Vacated
-----------------------------------------------------------------
In the case, MONIQUE RUSSELL; JASMINE RIGGINS; ELSA M. POWELL; and
DESIRE EVANS v. EDUCATIONAL COMMISSION FOR FOREIGN MEDICAL
GRADUATES, Appellant, Case No. 20-2128 (3d Cir.), the U.S. Court of
Appeals for the Third Circuit vacates the District Court's
issue-class certification and remands for further proceedings.
Background
Graduates of foreign medical schools who wish to be accepted to a
United States medical-residency program must have graduated from a
recognized foreign institution, demonstrated English-language
proficiency, and passed the first two steps of the United States
Medical Licensing Examination. Defendant-Appellant Educational
Commission for Foreign Medical Graduates is a Philadelphia-based
nonprofit that certifies that such graduates have satisfied those
requirements.
The Commission carries out this function in two ways. First, it
administers the English-language and medical examinations the
foreign medical school graduates must pass. Second, the Commission
verifies, using primary sources, that the applicant received a
medical degree from a qualifying institution. As the central
certification agency for graduates of foreign medical schools, the
Commission also investigates what it calls "irregular behavior."
In early 1992, a man named Oluwafemi Charles Igberase applied to
the Commission for certification. He eventually passed the
medical-licensing and English-language examinations and was issued
the Commission's certification. But no residency program accepted
him. In 1996, Igberase applied to the Commission for certification
for yet a third time. In this application, Igberase ditched his
first two names and invented another one: "John Nosa Akoda."
As he had twice before, Igberase (as Akoda) eventually passed the
medical-licensing and English-language examinations and received
the Commission's certification. After receiving the certification
as "Akoda," Igberase applied for and was admitted to a residency
program in New Jersey. But in August 2000, the residency program
learned that the social security number Akoda used in his
application belonged to Igberase. The residency program informed
the Commission of the inconsistency, provisionally suspended the
doctor it knew as Akoda, and, after an internal investigation, in
November 2000, dismissed him.
Once it learned of Akoda's possible misuse of Igberase's social
security number, the Commission launched its own investigation.
Despite the official's reservations, Igberase (as Akoda) was
admitted to Howard's residency program. He successfully completed
the program in 2011. After completing the program, he applied for
and received a Maryland medical license using fake identification
documents. That same year, he became a member of the medical staff
at Prince George's Hospital Center and began seeing patients
there.
In June 2016, law enforcement officials executed search warrants at
Igberase's residence, medical office, and vehicle. They found
fraudulent or altered immigration documents, medical diplomas,
medical transcripts, letters of recommendation, and birth
certificates. On Nov. 15, 2016, Igberase signed a plea agreement.
In it, he pleaded guilty to misuse of a social security account
number to fraudulently obtain a Maryland medical license and
admitted that "Akoda" was a pseudonym.
The Commission subsequently invalidated Akoda's foreign-doctor
certification, and the Maryland Board of Physicians revoked his
medical license.
The named Plaintiffs are Monique Russell, Jasmine Riggins, Elsa
Powell, and Desire Evans. Each received medical treatment from the
doctor known as "Akoda," who was certified by the Commission in
1997. Igberase performed unplanned emergency cesarean-section
surgery on Russell and Riggins and delivered Evans's and Powell's
children. These Plaintiffs also seek to represent a class of
similarly situated individuals who likewise received medical
treatment from "Akoda." But the Plaintiffs (the Appellees) did not
sue Igberase. Instead, they sued the Commission, and asserted
claims of negligent infliction of emotional distress arising out of
the Commission's certification of Igberase as "Akoda."
Eventually, the district court certified a class of "All patients
examined or treated in any manner by Oluwafemi Charles Igberase
(also known as Charles J. Akoda) beginning with his enrollment in a
postgraduate medical education program at Howard University in
2007." But the district court did not certify the class under any
subsection of Rule 23(b). Instead, the court certified the class as
an "issue class" pursuant to Rule 23(c)(4).
The court certified the class with respect to these issues:
(1) whether the Commission undertook or otherwise owed a duty
to class members.
(2) whether the Commission breached any duty that it owed to
class members.
(3) whether the Commission undertook or otherwise owed a duty
to hospitals and state medical boards, such that it may be held
liable to class members pursuant to the Restatement (Second) of
Torts Section 324A.
(4) whether the defendant breached any duty that it owed to
hospitals and state medical boards.
In short, the particular issues the district court certified for
class treatment concern only the duty and breach elements of the
Plaintiffs' claim. The district court therefore left for
individualized proceedings whether each Plaintiff was injured;
whether the Commission's breach of the relevant duty (if it had a
duty that was breached) actually and proximately caused those
injuries; whether those injuries are due a particular amount of
damages; and whether the Commission could raise any affirmative
defense, including, presumably, whether each Plaintiff's consent to
medical treatment by Igberase breaks the causal chain. In the wake
of the Rule 23(c)(4) certification, the Commission successfully
petitioned for leave to appeal under Rule 23(f).
The Third Circuit must decide whether that certification was
proper.
Discussion
The case presents the question whether the District Court abused
its discretion when it certified an "issue class" pursuant to Rule
23(c)(4) of the Federal Rules of Civil Procedure. The Third Circuit
holds that it did. According to Rule 23(c)(4), "when appropriate,
an action may be brought or maintained as a class action with
respect to particular issues." For "an action" to be "brought or
maintained as a class action," the party seeking class status must
satisfy Rule 23 and all its requirements, citing Comcast Corp. v.
Behrend, 569 U.S. 27, 33 (2013).
Further, in Gates v. Rohm & Haas Co., 655 F.3d 255 (3d Cir. 2011),
the Third Circuit enumerated a "non-exclusive list of factors"
relevant to assessing whether the certification of an issue class
under Rule 23(c)(4) is "appropriate." So when a party seeks to
certify "particular issues" for class treatment, the district court
must ask three questions.
First, does the proposed issue class satisfy Rule 23(a)'s
requirements? Second, does the proposed issue class fit within one
of Rule 23(b)'s categories? Third, if it does, is it "appropriate"
to certify this as an issue class?
In the case, lacking clear guidance, the District Court failed to
determine whether the issues identified for class treatment fit
within one of Rule 23(b)'s categories and then failed to explicitly
consider a few of the Gates factors.
Conclusion
For these reasons, the Third Circuit vacates the District Court's
Order certifying for aggregate treatment the duty and breach
elements of the Plaintiffs' negligent infliction of emotional
distress claim, and remands for further proceedings consistent with
its Opinion.
A full-text copy of the Court's Sept. 24, 2021 Opinion is available
at https://tinyurl.com/544mh9zv from Leagle.com.
William R. Peterson, [ARGUED] Morgan, Lewis & Bockius, 1000
Louisiana Street, Suite 4000, in Houston, Texas 77002.
Matthew D. Klayman, Brian W. Shaffer, Morgan Lewis & Bockius, 1701
Market Street, in Philadelphia, Pennsylvania 19103, Counsel for the
Appellant.
Nicholas M. Centrella -- ncentrella@conradobrien.com -- Robin S.
Weiss Conrad O'Brien, 1500 Market Street West Tower, Suite 3900, in
Philadelphia, Pennsylvania 19102.
Brent P. Ceryes -- bceryes@sfspa.com -- Schochor Federico & Staton,
1211 Saint Paul Street, in Baltimore, Maryland 21202.
Brenda Harkavy Patrick A. Thronson -- pthronson@JJSjustice.com --
[ARGUED] Janet Janet & Suggs, 4 Reservoir Circle, Suite 200, in
Baltimore, Maryland 21208.
Scott L. Nelson, Public Citizen Litigation Group, 1600 20th Street,
N.W., in Washington, D.C. 20009.
Paul M. Vettori -- pvettori@lawpga.eom -- Law Offices of Peter G.
Angelos, 100 North Charles Street One Charles Center, 22nd Floor,
in Baltimore, Maryland 21201.
Cory L. Zajdel, Z Law, 2345 York Road, Suite B-13, in Timonium,
Maryland 21093, Counsel for the Appellee.
Diana Huang, American Medical Association, 25 Massachusetts Avenue,
N.W., Suite 600, in Washington, D.C. 20001.
Leonard A. Nelson, American Medical Association, 330 North Wabash
Avenue, Suite 39300, in Chicago, Illinois 60611, Counsel for Amicus
American Medical Association, Association of American Medical
Colleges, and Pennsylvania Medical Society in support of the
Appellant.
Gilbert Dickey, McGuireWoods, 201 North Tryon Street, Suite 3000,
in Charlotte, North Carolina 28202.
Matthew A. Fitzgerald -- mfitzgerald@mcguirewoods.com --
McGuireWoods, 800 East Canal Street, Gateway Plaza, in Richmond,
Virginia 23219, Counsel for Amicus Chamber of Commerce in support
of the Appellant.
ENCORE FLIGHT: Hajihassani Sues Over Shady Flight Training Course
-----------------------------------------------------------------
EBRAHIM HAJIHASSANI, individually and on behalf of all others
similarly situated, Plaintiff v. ENCORE FLIGHT CORPORATION d/b/a
ENCORE FLIGHT ACADEMY, Defendant, Case No. 2:21-cv-07695 (C.D.
Cal., Sept. 27, 2021) seeks to recover damages, injunctive relief,
and any other available legal or equitable remedies, resulting from
the unlawful and deceptive business practices of the Defendant with
regard to its practice of deceptive and misleading representations
and/or omissions regarding concealed financing terms in its flight
training course agreements.
Encore Flight Corporation, d/b/a Encore Flight Academy, is a flight
school in Los Angeles, California.
On March 31, 2021, the Plaintiff enrolled in a flight training
course with Defendant for personal, family, and household purposes.
That same day, Plaintiff entered into a written agreement for
Defendant's flight training course, which was a consumer credit
transaction within the meaning of The Truth in Lending Act.
According to the Plaintiff, he was misled and deceived and suffered
economic injury due to Defendant's representations and omissions in
the contract, which included an unconscionable financing provision
and lacked transparency regarding the financing terms involved in
the transaction with Defendant.[BN]
The Plaintiff is represented by:
Abbas Kazerounian, Esq.
Mona Amini, Esq.
KAZEROUNI LAW GROUP, APC
245 Fischer Avenue, Unit D1
Costa Mesa, CA 92626
Telephone: (800) 400-6808
Facsimile: (800) 520-5523
E-mail: ak@kazlg.com
mona@kazlg.com
EQT CORPORATION: Asbury Class Suit Remains Stayed
-------------------------------------------------
In the class action lawsuit captioned as PATRICIA ASBURY, et al.,
v. EQT CORPORATION, et al., Case No. 2:18-cv-01005-CB (W.D. Pa.),
the Hon. Judge Cathy Bissoon entered an order stating that:
-- case is and shall remain stayed and administratively closed
for the duration of time it takes for the parties and/or
the Court to formulate an appropriate class definition, and
to determine the provision of class notice;
-- consistent with the above, the Plaintiff's Motion for class
treatment is granted; and
-- Defendants' Motion to strike Plaintiffs' experts is denied.
Should the parties reach an agreement regarding some, but not all,
of the above, they shall file a joint notice indicating the areas
of agreement; explaining where they disagree; and providing
competing proposals, along with legal briefs in support of their
respective positions. If no agreement can be reached, they shall,
by the date indicated, submit competing proposals, and legal briefs
in support thereof; and the Court summarily will adopt the side's
proposals that are most reasonable and consistent with the law, the
Court says.
In light of the established rulings and parameters, the Court
believes that this case would benefit from another round of
mediation. Should the parties agree, the Court is amenable to
having notice and settlement approval be approached through that
means. The Court, moreover, is willing to suspend the parties'
filing requirements while the prospect is explored and/or
completed, the Court adds.
A copy of the Court's order dated Sept. 29, 2021 is available from
PacerMonitor.com at https://bit.ly/3Ddnmt0 at no extra charge.[CC]
FASTENAL CO: Jackson Must Seek for Prelim. Approval of Class Deal
-----------------------------------------------------------------
In the case, MIESHIA MARIE JACKSON, Plaintiff v. FASTENAL COMPANY,
Defendant, Case No. 1:20-cv-00345-NONE-SAB (E.D. Cal.), Magistrate
Judge Stanley A. Boone of the U.S. District Court for the Eastern
District of California discharged the Sept. 23, 2021 order to show
cause and ordered the Plaintiff to file a motion for preliminary
approval of the class action settlement.
On Jan. 21, 2020, Plaintiff Jackson, on behalf of herself and all
others similarly situated, filed the action in the Stanislaus
County Superior Court against Fastenal alleging violations of
California labor law. On March 4, 2020, the Defendant removed the
action to the Eastern District of California. On May 28, 2020, the
Court issued a phased scheduling order. On Dec. 23, 2020, pursuant
to the parties' stipulation, the Court modified the scheduling
order and extended the deadline for the Plaintiff to file a motion
for class certification until Sept. 13, 2021. On Sept. 23, 2021,
because the deadline to file the motion for class certification had
expired and no motion was filed, the Court issued an order to show
cause why this action should not be dismissed.
On Sept. 23, 2021, the Plaintiff filed a notice of settlement and
response to the order to show cause. The filing indicates that the
parties reached settlement of the action through mediation around
March 1, 2021; that on Aug. 27, 2021, the parties circulated a
long-form settlement agreement for signatures; that on Sept. 20,
2021, the long-form agreement was fully executed; and that pursuant
to the agreement, the Defendant will be stipulating to the
certification of the class for settlement purposes, and thus the
Plaintiff no longer needed to file a contested class certification
motion.
The Plaintiff apologizes to the Court for any delay in notifying
the Court of the settlement. She further requests that all
deadlines and hearings be vacated until the Court determines
whether to approve the settlement; and that a hearing on the
forthcoming preliminary approval motion be set for the Court's
first available date in November of 2021, "preferably in front of
the Magistrate, as the Parties have agreed, subject to Court
approval, to have settlement approval proceed in front of the
Magistrate."
Judge Boone holds that the order to show cause will be discharged.
The Judge does not find it necessary to vacate any dates in the
matter as the only deadlines set in the previous scheduling orders
were for pre-certification discovery, and for the filing of the
motion for class certification. The parties are informed they may
notice a hearing before Judge Boone without reserving or clearing a
hearing date, provided the notice of motion and hearing date comply
with Local Rule 230. The Court will set a deadline for the filing
of the motion for preliminary approval.
Accordingly, Judge Boone discharged the Sept. 23, 2021 order to
show cause. The Plaintiff will file a motion for preliminary
approval of the class action settlement within 30 days of entry of
the Order.
A full-text copy of the Court's Sept. 24, 2021 Order is available
at https://tinyurl.com/w6d3vw7p from Leagle.com.
FORD MOTOR: "Death Wobble" Class Action Partly Dismissed
--------------------------------------------------------
David A. Wood, writing for CarComplaints.com, reports that a Ford
"death wobble" lawsuit has been partly dismissed after F-250 and
F-350 truck owners alleged violent shaking occurs when driving.
The class action lawsuit alleges the wobble causes drivers to lose
control of the trucks because of problems with the damper brackets,
ball joints, control arms, shocks, struts and track bar bushings.
The Ford "death wobble" lawsuit was first filed in June 2019 and
Ford filed a motion to dismiss a few months later. The plaintiffs
then filed their first amended lawsuit and Ford filed a second
motion to dismiss, which the court granted and denied in part.
The plaintiffs then filed a consolidated amended lawsuit which
caused Ford to file another motion to dismiss.
Of the previous plaintiffs one survived, and he is now joined by 13
new plaintiffs from 10 states who assert 36 claims about F-250 and
F-350 trucks.
According to the Ford "death wobble" lawsuit, the trucks shake
violently when they hit bumps or grooves in the roads when driving
above 50 mph, but slowing the trucks down stop the wobbles. The
class action alleges more than 1,000 Ford "death wobble" complaints
have been filed with the government between 2005 and 2019.
Motion to Dismiss the Ford "Death Wobble" Lawsuit
Ford allegedly violates two express warranties provided to truck
owners, but the automaker argues no breach of warranties occurred
because no plaintiff alleges they were refused a free repair by a
Ford dealer. Additionally, no plaintiff experienced multiple
unsuccessful repair attempts when the warranties applied.
According to Ford, the claims should be dismissed for plaintiffs in
three states, and the judge agreed to dismiss warranty claims
brought by two plaintiffs. Ford also argues express warranty claims
of two plaintiffs should be dismissed because their trucks were
successfully repaired.
The judge dismissed the claims because one plaintiff who had the
truck repaired has never complained the "death wobble" has
reoccurred since repairs were performed.
And although the plaintiff says "they are terrified that the new
steering damper is only a temporary remedial measure for the Death
Wobble," the judge says the plaintiff has no evidence for that
belief.
Another plaintiff had his express warranty claim dismissed because
his truck hasn't had any problems since Ford made repairs.
Other claims against Ford were dismissed because the warranties had
already expired when owners brought the trucks to dealerships.
The judge did allow a Magnuson-Moss Warranty Act claim to proceed,
at least for now, and a few plaintiffs saw their warranty claims
viable, but two plaintiffs saw their implied warranty claims
tossed.
The judge ruled at this stage he is unable to determine whether a
nationwide class can be sustained in this case, so Ford's motion to
dismiss the claim is dismissed, for now.
The judge also dismissed certain fraud-based claims while allowing
others to move forward at this stage of the lawsuit.
The Ford "death wobble" lawsuit was filed in the U.S. District
Court for the Southern District of California - Lessin, et al., v.
Ford Motor Company, et al.
The plaintiff is represented by McCune Wright Arevalo, and Sohn &
Associates. [GN]
GANNETT CO: Kentucky Court Dismisses Love FLSA Suit With Prejudice
------------------------------------------------------------------
Judge Benjamin Beaton of the U.S. District Court for the Western
District of Kentucky, Louisville Division, dismisses with prejudice
the case, NICOLE LOVE, individually and on behalf of those
similarly situated, Plaintiff v. GANNETT CO. INC., GANNETT
SATELLITE INFORMATION NETWORK, LLC, AND GCOE, LLC, Defendants, Case
No. 3:19-cv-296-BJB-RSE (W.D. Ky.).
Three of Gannett's former call-center employees sued Gannett,
raising several claims of unfair labor practices under state and
federal law. They invoked the "collective action" provision of the
Fair Labor Standards Act. Under the FLSA, Congress authorized
plaintiffs to sue "for and in behalf of himself and other employees
similarly situated."
After more than two years of litigation, two amended complaints,
and an order granting conditional certification of an FLSA
collective, the lone remaining named Plaintiff, Nicole Love, asks
the Court to approve the parties' settlement agreement and dismiss
the case with prejudice.
Initially, Judge Beaton opines that the hard-fought litigation in
the case leaves little doubt about the existence of a bona fide
dispute. Gannett has denied the allegations of FLSA violations at
each turn. And Gannett continues to deny FLSA violations in the
proposed settlement agreement itself. The proposed settlement
plainly resolves a bona fide dispute.
Next, Judge Beaton holds that the settlement is a fair, reasonable,
and adequate resolution of the dispute. He finds that (i) absent
evidence of fraud or collusion, the Court may presume none exists;
(ii) no one doubts that "continuing to litigate this case would
result in greater expense for both parties and increase the
duration of the litigation"; (iii) the parties have engaged in
substantial investigation of the claims and enough discovery to
ensure that "the issues are well understood by both sides"; (iv)
some questions certainly persist regarding who would prevail if the
parties litigated the case to judgment; (v) the class counsel and
the named Plaintiff representing the collective both support the
settlement; (vi) no absent class members exist in the opt-in
collective action; and (vii) the agreement promotes the "strong
public interest in encouraging settlement" because it "reflects a
reasonable compromise over issues actually disputed."
Judge Beaton also holds that the settlement proceeds will be
distributed equitably. As explained in the motion, "each FLSA
Collective Member will be assigned a specific settlement amount
based on the number of weeks he or she worked for the Defendants
during the Collective Period." The Judge agrees that this formula
makes good sense in light of the work and violations alleged in the
case, and therefore "ensures that the Net Settlement Amount is
distributed fairly to the FLSA Collective Members."
In addition, the service award for the named plaintiff is
reasonable, Judge Beaton opines. He says, the proposed settlement
provides $5,000 to Love for her services. Due to the substantial
benefit this settlement brings to those who opt in to the
collective, the risk undertaken by Love in helping to lead the
litigation, and the approximately 20 hours (and perhaps more) of
time Love invested as the lead plaintiff in guiding the case, the
Judge agrees that this is a reasonable sum.
The requested attorneys' fees are also reasonable, Judge Beaton
finds. He opines that the requested fees are sufficiently
reasonable to support the fee award proposed as part of the
settlement. He grants the requested attorneys' fees ($200,000) and
litigation expenses ($20,023.97), with the balance of the amount
originally laid out in the settlement agreement ($260,000 -
$220,023.97 = $39,976.03) added to the net settlement fund for
distribution to the opt-in plaintiffs.
Notice is the final item implicated by the motion. At the fairness
hearing, the counsel indicated that they had not yet sent
prospective opt-in plaintiffs the notice form previously approved
by the Court. Due to the Court's special role in the litigation,
Judge Beaton asks that the counsel file a revised proposed notice
of settlement in the docket within 30 days of his order so that the
Court can ensure the notice sufficiently advises potential
collective members of their right to funds and their other rights
and obligations under the settlement.
In light of the foregoing, Judge Beaton grants the unopposed motion
for settlement approval and, contingent on approval the parties'
submission of the requested notice, dismisses the case with
prejudice.
A full-text copy of the Court's Sept. 24, 2021 Memorandum Opinion &
Order is available at https://tinyurl.com/235575mj from
Leagle.com.
GARDNER TRUCKING: Leuzinger Suit Consolidated With Castro Suit
--------------------------------------------------------------
Judge Yvonne Gonzalez Rogers of the U.S. District Court for the
Northern District of California consolidates the case, KASPER
LEUZINGER, Plaintiff v. GARDNER TRUCKING, INC. AND CRST EXPEDITED,
INC., Defendants, Case No. 21-CV-4952-YGR (N.D. Cal.), with Castro
v. Gardner Trucking, Inc., 20-CV-5473-YGR.
On June 28, 2021, Plaintiff Leuzinger filed the putative class
action against Gardner Trucking, Inc., and CRST Expedited, Inc.,
alleging violations of the California Labor Code, the Fair Labor
Standards Act, and California's Unfair Competition Law. Defendant
CRST Expedited, Inc., doing business as CRST The Transport
Solution, Inc. -- Dedicated West, formerly known as Gardner
Trucking, Inc., has moved to dismiss or stay the action based on
the first-to-file rule in light of the earlier filed related
action, the Castro action, also pending before the Court. The
Plaintiff subsequently moved to consolidate the action with the
Castro action.
In arguing for the application of the first-to-file rule, the
Defendant submits that Castro was the first filed action, both
actions "cover virtually the same putative class and claims against
the same defendant," and the issues are similar "because both class
actions involve the Defendant's alleged failures to comply with
overlapping sections of the California Labor Code and FLSA against
nonexempt employees." While the Plaintiff responds, inter alia,
that the first-to-file rule does not apply to matters before the
same court and the same judge, the Defendant counters that the rule
applies to actions filed in the same district. The Defendant's
rebuttal, however, does not address the present situation in which
the actions at issue are pending before the same judge.
Because both actions at issue are pending before her, Judge Rogers
holds that application of the first-to-file rule is not
appropriate. Therefore, she denies the motion to dismiss or stay
the action in light of the Castro action.
Moreover, for the same reasons submitted by the Defendant in
support of its own motion, Judge Rogers grants the motion to
consolidate the action with the Castro action. The Judge is not
persuaded that the filing of the present action constitutes venue
shopping or that consolidation would cause unnecessary delay,
confusion, or prejudice, as alleged by defendant. In fact, given
the overlapping issues, economies are gained by consolidation. To
the extent that the schedule needs to be adjusted, the parties may
request to be placed on a case management calendar.
The Clerk of Court will consolidate the action with Case No.
20-CV-5473-YGR and administratively close the case.
The Order terminates Docket Numbers 12 and 17.
A full-text copy of the Court's Sept. 22, 2021 Order is available
at https://tinyurl.com/t69s7dp9 from Leagle.com.
GENERAL MOTORS: Hit With Lawsuit Over Alleged Airbag Failures
-------------------------------------------------------------
A class-action lawsuit has been filed against GM Canada alleging
the automaker knowingly delivered vehicles equipped with faulty
airbag sensing and diagnostic modules.
According to Car Complaints, the lawsuit alleges the airbag sensing
and diagnostic modules in certain GM Canada vehicles have software
calibration defect that prevents the airbags and seatbelt
pre-tensioners from working in the event of a crash. Specifically,
the suit says the software is calibrated to deploy the airbags and
pre-tensioners 45 milliseconds after a crash has begun, but claims
the typical crash duration of a front vehicle-to-barrier collision
lasts about 80-150 milliseconds.
The plaintiff in the suit purchased a 2005 Chevy Silverado 2500 in
April of 2005, which they say contains this faulty software. The
plaintiff also says GM Canada knowingly delivered vehicles with
this defect and that it maintains they are safe despite receiving
customer complaints about the alleged issue.
Four plaintiffs in the U.S. District Court for the Eastern District
of New Jersey filed an almost identical lawsuit against GM in
August. Like this Canadian suit, the filing alleges affected
vehicles do not deploy the airbags in a timely manner in the event
of a crash and may fail to deploy altogether in certain instances.
That suit also said more than 800 complaints have been filed with
the U.S. federal government regarding airbag failures in front-end
crashes in GM vehicles, which date back to 1999. The plaintiffs in
the American suit are looking for GM to issue a recall for all
affected vehicles to repair or replace the SDM, or offer a buyback
for all affected vehicles.
The Canadian suit claims a long list of GM vehicles spanning the
1994 to 2014 model years contain this defect, including the
1999-2014 GMC Yukon, 1994-2014 Chevy Tahoe, 1998-2014 Chevy
Silverado and 2004-2014 Cadillac SRX, among many others. [GN]
GEO GROUP: Gets Class Action Over Alleged Drop of Stock Prices
--------------------------------------------------------------
GEO Group Inc., a for-profit prison company, convinced a federal
judge in Florida to shave down most claims in a proposed class
action alleging it misled investors by downplaying the risks
associated with lawsuits the company faced over its facilities'
conditions, leading to a stock drop. [GN]
GOOGLE LLC: California Court Narrows Claims in Best Carpet Suit
---------------------------------------------------------------
In the case, BEST CARPET VALUES, INC., et al., Plaintiffs v. GOOGLE
LLC, Defendant, Case No. 5:20-cv-04700-EJD (N.D. Cal.), Judge
Edward J. Davila of the U.S. District Court for the Northern
District of California, San Jose Division, granted in part and
denied in part Google's motion to dismiss the complaint without
leave to amend.
Pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure,
Google moved to dismiss the complaint without leave to amend. The
Plaintiffs filed an opposition.
Background
Plaintiffs Best Carpet Values, Inc. and Thomas D. Rutledge
initiated the putative class action suit, asserting claims against
Defendant Google for implied-in-law contract and unjust enrichment;
trespass to chattels; and unfair and unlawful conduct in violation
of California Business and Profession Code Section 17200.
The Plaintiffs are owners of active U.S.-based websites. Plaintiff
Best Carpet owns bestcarpetvalue.com and Plaintiff Rutledge owns
thomasrutledgelaw.com. A website is a digital document built with
software and housed on a computer called a "web server." A
webserver is owned or controlled in part by the website's owner.
Commercial websites typically have a unique "domain name" or "URL"
(Uniform Resource Locator) address which enables an internet user
to find the webserver on which the website resides. All websites
have at least one page, called a homepage.
The Plaintiffs allege that "by rights of ownership -- and under the
First Amendment -- website owners are entitled to control the
content and information displayed on their websites' web pages,
including any advertisements, without interference." Once a website
is "published" and becomes "active," Internet users can reach a
website by entering the website's domain name into an internet
"browser" program such as Google Chrome, Mozilla Firefox or
Microsoft Edge.
Google operates several internet related businesses that provide a
variety of internet related products and services. Among other
things, Google (1) makes and controls Android mobile phone
software, including the Android operating system, which allows
users to wirelessly access the internet; (2) owns and operates the
world's most used internet browser, Google Chrome, and the world's
most-used internet search engine, google.com; and (3) owns the
world's largest internet advertising network, offering products
serving every aspect of that industry, including Google Ads (for
clients advertising on Google's search results pages), AdSense
(matching buyers and sellers of display advertising on websites),
and AdX (for buyers and sellers of premium, high-end website
display ads).
Android phone users can search the internet by either (1) opening a
browser, such as Chrome, by clicking the Chrome icon on one of
their Android home screens; or (2) using Google's Search App, which
is incorporated into nearly every Android phone. Android users
searching the internet are able to retrieve virtually the same
search results, whether they use Search App or Chrome.
Before March of 2018, the Search App icon "" appeared in the suite
of Google apps that Google installs on Android phones, and many
Android users had to click on the Search App icon to use the App.
In late March of 2018, Google updated its Search App software by
placing the Search App's search bar at the top of the first page of
most Android home screens. This software update eliminated the need
for Android users to click an icon before conducting an internet
search using Google's Search App. The Search App search bar bears
Google's "" logo. Between March of 2018 and April of 2020 ("Class
Period"), virtually all of the approximately 50 million Android
phone users in America have used the Search App's search bar to
search the internet.
During the Class Period, "most websites retrieved via Search App,
when activated by an Android user's touching and toggling of their
phone's screen, had Google's unlawful ads superimposed on their
homepages or other 'landing' pages.'" More specifically, Google
superimposed a leaderboard ad at the bottom of homepages that
consisted of Google's logo, the phrase "VIEW 15 RELATED PAGES," and
a pop-up button.
Once a user engaged Best Carpet's website by toggling its homepage,
however, Google's Search App activated and superimposed Google's
leaderboard ad on top of Best Carpet's website. The result was that
Google's leaderboard, "VIEW 15 RELATED PAGES," covered Best
Carpet's invitation to users to view its "Cove Base" products. If a
user were to click on the pop-up button (encircled triangle) in the
leaderboard, the Search App superimposed two half-page "banner" ads
that blocked 80% of what was previously viewable, and shadowed the
remaining 20%. The two half-page banner ads were for Best Carpet's
direct competitors. Technically, the superimposed "banner" ads
appeared on the copy of Best Carpet's website that was reproduced
on the user's screen. Best Carpet considers that copy its property.
Each banner ad contained a link that, if clicked, redirected the
users from Best Carpet's homepage to its competitor's web page.
Google's ads intruded on website owners' limited space and created
distractions that undermined every web page's central purpose. They
also "compelled" business owners in nearly every conceivable
industry to advertise for others, including competitors. Google's
ad could also be misperceived by Android users as endorsements of
unaffiliated businesses and people. The Related Pages banner ads
often included ads for the host website's competitors and links to
news stories about the host website's owner, including negative
news articles.
The purpose of the March 2018 software update was to generate
profit and Google succeeded in doing so. Google updated its Search
App on or about April 22, 2020 to discontinue (at least
temporarily) the conduct alleged in the Complaint. The Plaintiffs
estimate that for those two years, Google obtained over $2 billion
of non-consensual free advertising.
Pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure,
Google moves to dismiss the complaint without leave to amend. The
Plaintiffs filed an opposition and Google filed a reply.
Discussion
The Plaintiffs assert three claims on behalf of themselves, a
Class, a Georgia Subclass, and a California Subclass.
A. Trespass to Chattels Claim
Trespass to chattels lies where an intentional interference with
the possession of personal property has caused injury. There are
two potential chattels: The computers hosting the Plaintiffs'
websites and the copies of the Plaintiffs' websites appearing on
users' screens.
Google contends the trespass to chattels claim fails as a matter of
law as to both potential types of chattel because its Search App
does not cause physical injury (i.e., intrusion, interference or
harm) to any tangible property. In making this argument, Google
implicitly acknowledges that the computers hosting the Plaintiffs'
websites are tangible property, but contends that the Search App
does not interact with those computers, much less damage them. As
for the copies of the Plaintiffs' websites appearing on users'
screens, Google contends that they are not tangible property, and
therefore cannot be the subject of a trespass claim.
In response, the Plaintiffs contend that tangible and intangible
property alike can be the subject of a trespass to chattels claim,
and that they are alleging an injury to their intangible property,
namely their websites. Google allegedly injured their websites
because the superimposed ads impaired the website's "condition,
quality, or value."
Judge Davila holds that a website is a form of intangible property
subject to the tort of trespass to chattels, the next issue is
whether Plaintiffs have alleged an injury. Although the Plaintiffs
are not alleging physical harm to their websites, they do allege
functional harm or disruption.
Specifically, the Plaintiffs allege that "by obscuring and blocking
the contents of their website homepages when viewed on Android's
Search App, Google's ads substantially interfered with and impaired
the websites' published output and exposed the website owners to
unwanted risks of lost advertising revenues and lost sales to
competitors, thereby materially reducing the websites' value and
utility to the website owners. The Defendant's unauthorized
interferences proximately caused the Plaintiffs actual damage by
impairing the condition, quality and value of their websites. The
Plaintiffs seek damages equal to the diminished market value of
their websites and a permanent injunction requiring Google to
disable the ad-generating feature of its Search App on every
Android phone on which it is installed and preventing Google from
installing any similar feature in the future.
And, although Google's ad may not have disabled or deactivated the
"Cove Base" product link, Judge Davila holds that it nevertheless
allegedly impaired the functionality of the website: An Android
phone user cannot engage a link that cannot be seen. At the
pleading stage, the alleged decrease in functionality of the
Plaintiffs' website is sufficient to plausibly state a cognizable
injury for a trespass to chattels claim.
B. Implied Contract/Unjust Enrichment Claim
The Plaintiffs also assert a claim labeled "Implied Contract/Unjust
Enrichment." Google contends that the Implied Contract/Unjust
Enrichment claim should be dismissed because it is preempted by
section 301 of the Copyright Act. Google reasons that the
Plaintiffs' demand to be paid inevitably depends on their ability
to control how copies of their websites are displayed on different
users' devices, and any right to control the way the websites
appear must be grounded in the principles of copyright law.
Judge Davila explains that copyright preemption applies to claims
that are "asserted to prevent nothing more than the reproduction,
performance, distribution, or display of" the Plaintiff's
copyrightable property. Section 301 of the Copyright Act preempts a
state law claim when two conditions are satisfied: (1) the work
involved falls within the general subject matter of the Copyright
Act as specified by sections 102 and 103; and (2) the rights that
the plaintiff asserts under state law are equivalent to those
protected by the Act in section 106 in works of authorship that are
fixed in a tangible medium of expression.
The first condition is satisfied because websites and the manner in
which they are displayed fall within the subject matter of
copyright. The "subject matter" of the Plaintiffs' claim
necessarily concerns both their websites and the advertisements.
The Plaintiffs allege that it is the placement of the ads "on top"
of their websites that give rise to their right to damages. As
stated previously, websites fall within the subject matter of
copyright. Therefore, the first part of the preemption test is
satisfied.
Turning to the second condition, the Second Circuit has instructed
that section 301 preemption "only applies to those state law rights
that 'may be abridged by an act which, in and of itself, would
infringe one of the exclusive rights' provided by federal copyright
law.'" Judge Davila finds that the Plaintiffs' implied-in-law
contract/unjust enrichment claim is a state claim with extra
elements "instead of or in addition to" the acts giving rise to a
copyright infringement claim. An implied-in-law contract claim "is
a common law obligation implied by law based on the equities of a
particular case." Unjust enrichment claims are not categorically
preempted by the Copyright Act. California law recognizes a right
to disgorgement of profits resulting from unjust enrichment, even
where an individual has not suffered a corresponding loss."
C. Section 17200 Claim
The Plaintiffs allege the Android Search App violates Section 17200
of California's Unfair Competition Law ("UCL"), which prohibits
business practices that are "unlawful, unfair, or fraudulent." They
bring their claim under only the first two prongs: Unlawful and
unfair.
As to the unlawful business practices prong, the Plaintiffs allege
that the "Defendant placed nonconsensual advertisements on their
websites without compensation in violation of the common law
doctrines of implied-in-law contract and unjust enrichment, and by
trespassing on the Plaintiffs' websites in violation of the common
law prohibition against trespass to chattels." As to the unfair
business practices prong, the Plaintiffs allege that Google's
conduct is "immoral, unethical, oppressive, unscrupulous,
unconscionable and substantially injurious to them." The Plaintiffs
also allege that Google's conduct is contrary to public policy as
well as the common law, and the harm it caused (and threatens to
continue to cause) outweighs its utility, if any.
Judge Davila holds that the Plaintiffs' UCL claim, as pled under
the unlawful prong, survives because the trespass to chattels and
the breach of implied contract/unjust enrichment may serve as the
predicate for the claim. The Judge also holds that the Plaintiffs
are not consumers of the product that has caused the alleged
injury, the Google Search App. In the context of the case, the
consumers are Android phone users who search the Internet for
content. Hence, the UCL claim, as pled under the unfair prong, is
dismissed.
D. First Amendment Defense
Finally, Google argues that the First Amendment prohibits the
Plaintiffs' attempts to control what information is displayed to
users when they access the Plaintiffs' websites. In response, the
Plaintiffs contend that their First Amendment rights as website
publishers are paramount and that Google has no right to force its
own messages onto their websites.
The First Amendment states that "Congress will make no law
respecting an establishment of religion, or prohibiting the free
exercise thereof; or abridging the freedom of speech, or of the
press." The First Amendment guarantees 'freedom of speech,' a term
necessarily comprising the decision of both what to say and what
not to say. The Free Speech Clause of the First Amendment "can
serve as a defense in state tort suits. In the context of the
Internet, courts have recognized that search-engine results may
constitute speech protected by the First Amendment. Thus, a company
such as Google cannot be compelled to place ads in "prominent
places" on its search engine results.
The Plaintiffs complain that after users see Google's search
results and then choose to link to their proprietary websites, the
users see unpaid-for Google ads on their webpages that entice and
redirect those users to Best Carpet's competitors' or naysayers'
websites in order to generate profits for Google.
Furthermore, the First Amendment defense is not absolute. The
Plaintiffs allege that Google's leaderboard and banner ads are
commercial speech that misleadingly imply that they endorse
Google's ads or were compensated by Google for placing the ads.
Therefore, if the Plaintiffs prevail in this suit, Google can be
enjoined from tethering similar ads to their websites in the
future.
Relatedly, Google argues that Android users' have a "right to hear"
-- the right to receive information -- that is "no less protected
by the First Amendment than Google's right to speak. However, this
right is "a necessary predicate to the recipient's meaningful
exercise of his own rights of speech, press, and political
freedom." In the case, it is the Android users who are the
recipients of the advertising, not Google. The "right to hear" does
not provide Google a defense against the Plaintiffs' claims.
Conclusion
Judge Davila granted Google's motion to dismiss as to the UCL claim
under the unfair prong and denied in all other respects. The UCL
claim under the unfair prong is dismissed without leave to amend.
A full-text copy of the Court's Sept. 24, 2021 Order is available
at https://tinyurl.com/4sjskmyc from Leagle.com.
GRAMMER INDUSTRIES: Court Narrows Claims in Walton Class Suit
-------------------------------------------------------------
In the class action lawsuit captioned as DARREN WALTON, on behalf
of those similarly situated, v. GRAMMER INDUSTRIES INC, Case No.
2:20-cv-12298-TGB-RSW (E.D. Mich.), the Hon. Judge Terrence G. Berg
entered an order granting in part and denying in part the
Defendant's Motion to dismiss.
The court will grant Defendant Grammer's motion to dismiss Count
One, Count Two, and Count Three. The Court will deny Defendant's
Motion to Dismiss Count Four.
The Court concludes that the Article III standing inquiry is
logically subsumed within the class certification question. The
Court further concludes that, because Plaintiff has failed to
adequately allege that Grammer had knowledge of the defect,
Plaintiff has not stated a claim under Pennsylvania's Unfair Trade
Practices and Consumer Protection Law. For the same reason,
Plaintiff has not sufficiently alleged that the fraudulent
concealment doctrine should toll the statute of limitations as to
Plaintiff's claims for breach of an implied warranty and violation
of the Magnuson-Moss Warranty Act. The Court further concludes that
Plaintiff has alleged a plausible unjust enrichment claim.
If Plaintiff believes he can revive his dismissed claims by filing
an Amended Complaint addressing the deficiencies identified in this
Order, he may request leave to do so. Any such request should be
made within 45 days of the date of this Order, Judge Berg says.
This case arises out of an allegedly defective part incorporated
into car seat headrests used in Chrysler vehicles. The headrests
are made with a safety feature that causes them to spring forward
to protect the occupant’s head and neck in the event of a sudden
rear-end impact.
A component within the headrest is allegedly made of "cheap"
plastic, wears out easily, and when it fails the headrest can
spring forward unexpectedly and potentially injure the driver or
passenger. The complaint by Plaintiff generally alleges that
Defendant Grammer Industries manufactured and sold these headrests
for integration into certain vehicles manufactured by nonparty
Chrysler. The Plaintiff alleges four causes of action: (1)
violation of Pennsylvania's Unfair Trade Practices and Consumer
Protection Law ("UTPCPL"); (2) violation of the Magnuson-Moss
Warranty Act ("MMWA"); (3) breach of the implied warranty of
merchantability; and (4) unjust enrichment.
A copy of the Court's order dated Sept. 29, 2021 is available from
PacerMonitor.com at https://bit.ly/3Bkoaf6 at no extra charge.[CC]
GRAND VIEW: Attorneys Assist Tenants to Fill Out Claim Forms
------------------------------------------------------------
KSBY reports that attorneys met with former Grand View Apartments
tenants on Sept. 26 to help fill out claim forms. This comes as
legal teams believe there are about 250 tenants eligible to receive
compensation.
The assistance took place at the Paso Robles Downtown City Park
from 2 p.m. to 4:30 p.m. Law officials encouraged all tenants will
to provide documentation of their residency in order to fill out
the claim forms, which could be a copy of their lease, canceled
checks or receipts from apartment management, a utility bill or
mail received at Grand View.
"We had rodents that lived among us, we had cockroaches, we had bed
bugs, there was extreme mold in the departments and just bad
plumbing," described Francisco Ramirez, a former tenant at Grand
View Apartments.
Attorneys representing former residents of the Grand View reached a
$4 million settlement after filing a lawsuit over the living
conditions at the complex.
The 54-unit complex on Spring Street was infested with roaches and
bedbugs and tenants said their complaints about water leaks,
flooding, broken windows, sewage backups, malfunctioning
appliances, and a lack of functioning smoke detectors, among other
issues, were not properly addressed.
In 2019, the San Luis Obispo Legal Assistance Foundation (SLOLAF)
and attorney Allen Hutkin of the Hutkin Law Firm filed a
class-action lawsuit against the apartment complex owners on the
renters' behalf.
After a judge ordered the owners to stop collecting rent from the
tenants, the property was sold and everyone had to move out.
SLOLAF, People's Self-Help Housing, Paso Robles Housing Authority,
and the Housing Authority of San Luis Obispo assisted in finding
new housing for most of the tenants.
The new owners renovated the property, which is now called Vista
Robles.
Now, anyone who lived at the apartment complex during that time can
submit a claim to receive part of that $4 million settlement. [GN]
GREG STEPHEN: Judge OKs Class Action Lawsuit Over Sexual Abuse
--------------------------------------------------------------
kmch.com reports that a federal judge has approved a class action
lawsuit filed by a former player against a former coach from
Monticello.
44-year old Greg Stephen was sentenced to 180 years in federal
prison two years ago. He pleaded guilty to five counts of sexual
exploitation of a child and one count each of possession of child
pornography and transportation of child pornography.
Stephen admitted to possessing nude photos and videos of 400 boys,
including former players and their friends. The lawsuit accuses
Stephen of intruding on the privacy of more than 400 boys by
secretly or deceptively recording them undressing, showering and
performing sexually explicit acts from 2005 to 2018.
In addition to suing Stephen, the former player is suing the
Barnstormers, the team sponsor Adidas and the Amateur Athletic
Union.
The judge ruled that all present and former members of the Iowa
Barnstormers youth basketball program can join the lawsuit.
The civil trial is scheduled for January 10th in U.S. District
Court in Davenport. [GN]
INNOVAGE HOLDING: Glancy Prongay Discloses Securities Class Action
------------------------------------------------------------------
Glancy Prongay & Murray LLP ("GPM"), a national investor rights law
firm, continues its investigation on behalf of InnovAge Holding
Corp. ("InnovAge" or the "Company") (NASDAQ: INNV) investors
concerning the Company and its officers' possible violations of the
federal securities laws.
If you suffered a loss on your InnovAge investments or would like
to inquire about potentially pursuing claims to recover your loss
under the federal securities laws, you can submit your contact
information at
https://www.glancylaw.com/cases/innovage-holding-corp/. You can
also contact Charles H. Linehan, of GPM at 310-201-9150, Toll-Free
at 888-773-9224, or via email at shareholders@glancylaw.com to
learn more about your rights.
On September 21, 2021, after the market closed, InnovAge revealed
that the Centers for Medicare and Medicaid Services ("CMS") had
"determined to freeze new enrollments at [the Company's] Sacramento
center based on deficiencies detected in [a recent] audit." The
Company stated that these "deficiencies relate to failures to
provide covered services, provide accessible and adequate services,
manage participants' medical situations, and oversee use of
specialists, among others."
On this news, the Company's stock price fell $2.90, or nearly 25%,
to close at $8.75 per share on September 22, 2021, thereby injuring
investors.
Whistleblower Notice: Persons with non-public information regarding
InnovAge should consider their options to aid the investigation or
take advantage of the SEC Whistleblower Program. Under the program,
whistleblowers who provide original information may receive rewards
totaling up to 30 percent of any successful recovery made by the
SEC. For more information, call Charles H. Linehan at 310-201-9150
or 888-773-9224 or email shareholders@glancylaw.com.
About GPM
Glancy Prongay & Murray LLP is a premier law firm representing
investors and consumers in securities litigation and other complex
class action litigation. ISS Securities Class Action Services has
consistently ranked GPM in its annual SCAS Top 50 Report. In 2018,
GPM was ranked a top five law firm in number of securities class
action settlements, and a top six law firm for total dollar size of
settlements. With four offices across the country, GPM's nearly 40
attorneys have won groundbreaking rulings and recovered billions of
dollars for investors and consumers in securities, antitrust,
consumer, and employment class actions. GPM's lawyers have handled
cases covering a wide spectrum of corporate misconduct including
cases involving financial restatements, internal control
weaknesses, earnings management, fraudulent earnings guidance and
forward looking statements, auditor misconduct, insider trading,
violations of FDA regulations, actions resulting in FDA and DOJ
investigations, and many other forms of corporate misconduct. GPM's
attorneys have worked on securities cases relating to nearly all
industries and sectors in the financial markets, including, energy,
consumer discretionary, consumer staples, real estate and REITs,
financial, insurance, information technology, health care, biotech,
cryptocurrency, medical devices, and many more. GPM's past
successes have been widely covered by leading news and industry
publications such as The Wall Street Journal, The Financial Times,
Bloomberg Businessweek, Reuters, the Associated Press, Barron's,
Investor's Business Daily, Forbes, and Money. [GN]
JPMORGAN CHASE: To Pay $15.7 Million to Settle Spoofing Class Suit
------------------------------------------------------------------
Chris Prentice and Jonathan Stempel at insurancejournal.com reports
that JPMorgan Chase & Co. agreed to pay $15.7 million in cash to
settle a class action lawsuit by investors who accused the largest
U.S. bank of intentionally manipulating prices of U.S. Treasury
futures and options.
The settlement disclosed stemmed from sprawling U.S. government
investigations into illegal trading in futures and precious metals
markets, known as spoofing.
JPMorgan did not admit wrongdoing in agreeing to the settlement,
which covers traders in Treasury futures and options from April
2008 to January 2016 and requires approval by a federal judge in
Manhattan.
Last September, JPMorgan entered a deferred prosecution agreement
and agreed to pay $920 million, including a $436 million criminal
fine, to settle U.S. government probes into spoofing in Treasuries
and precious metals. The bank also agreed to self-report future
violations.
Spoofing is a practice in which traders place orders they intend to
cancel, hoping to move prices to benefit their market positions.
The Justice Department has employed sophisticated data analysis
tools to spot potential spoofing that it could not previously
detect.
The $15.7 million payout would recover less than one-third of the
estimated classwide damages, a court filing shows. Lawyers for the
traders plan to seek up to one-third of the settlement, or about
$5.2 million, to cover legal fees. [GN]
KENNEDY ENDEAVORS: Maeda's Bid to Exclude Butler Testimony Denied
-----------------------------------------------------------------
In the case, MICHAEL MAEDA and RICK SMITH, individually and on
behalf of all others similarly situated, et al., Plaintiffs v.
KENNEDY ENDEAVORS, INC., et al., Defendants, Civil No. 18-00459
JAO-WRP (D. Haw.), Judge Jill A. Otake of the U.S. District Court
for the District of Hawaii denies the Plaintiffs' Renewed Motion to
Exclude Testimony of Defendant's Expert Sarah Butler.
Background
The action arises out of the sale and marketing of Defendant
Kennedy's Hawaiian Kettle Style Potato Chips in Original, Luau BBQ,
and Sweet Maui Onion flavors (collectively, "Hawaiian Snacks").
Plaintiffs Maeda and Smith allege that they purchased certain
varieties of these snacks due to false and deceptive labeling,
packaging, and advertising, which misled them into believing that
the snacks are made in Hawai'i from local ingredients.
Mr. Maeda and formerly named Plaintiff Iliana Sanchez commenced the
action on Oct. 12, 2018 in the Hawai'i Circuit Court of the First
Circuit. Defendant Pinnacle Foods Inc. subsequently removed the
action on Nov. 23, 2018.
On May 10, 2019, the Court issued an Order Granting in Part and
Denying in Part Defendant Pinnacle Foods Inc.'s Motion to Dismiss
Plaintiffs' Class Action Complaint, which (1) dismissed Sanchez's
claims for lack of personal jurisdiction; (2) dismissed with
prejudice the "Made in Hawaii" claim; (3) dismissed with leave to
amend the Hawai'i Revised Statutes ("HRS") Chapter 480, California
consumer protection, breach of warranty, and fraud/intentional
misrepresentation claims; (4) denied the Motion to Dismiss as to
the jurisdictional challenges to the unnamed non-resident class
members; and (5) denied the Motion to Dismiss as to the Hawai'i
false advertising, negligent misrepresentation,
quasi-contract/unjust enrichment/restitution claims, and the
request for injunctive relief ("Maeda I"). The Court granted the
Plaintiffs until June 10, 2019 to file an amended pleading in
conformance with the Order.
The Plaintiffs timely filed a first amended complaint, adding Smith
and a Hawai'i Uniform Deceptive Trade Practices Act ("UDTPA")
claim. The Court struck that filing for violating the Order but
allowed Plaintiffs to file another first amended complaint that
conformed with the Order. Maeda subsequently filed a corrected
First Amended Class Action Complaint ("FAC").
Mr. Maeda then filed a Motion for Leave to File Second Amended
Class Action Complaint. The Magistrate Judge granted the motion for
good cause, noting the lack of opposition. On July 17, 2019, the
Plaintiffs filed their Second Amended Class Action Complaint
("SAC").
The Plaintiffs maintain that although the Hawaiian Snacks are
manufactured in Algona, Washington, the Defendant markets them in
such a manner as to mislead consumers into believing that they were
manufactured in Hawai'i.
The SAC asserts the following claims: (1) violation of Hawaii's
Unfair Deceptive Acts or Practices Statute ("UDAP"), HRS Chapter
480 (Count 1); (2) violation of Hawaii's false advertising law, HRS
Section 708-871 (Count 2); (3) violation of UDTPA, HRS Chapter 481A
(Count 3); (4) violation of California's Consumers Legal Remedies
Act ("CLRA"), Cal. Civil Code Section 1750 (Count 4); (5) violation
of California's unfair competition law ("UCL"), Cal. Bus. & Pros.
Code Section 17200 (Count 5); (6) violation of California's false
advertising law ("FAL"), Cal. Bus. & Pros. Code Section 17500
(Count 6); (7) common law fraud/intentional misrepresentation
(Count 7); (8) negligent misrepresentation (Count 8); and (9)
quasi-contract/unjust enrichment/restitution (Count 9).
The three proposed classes identified by the Plaintiffs are as
follows:
a. Hawai'i Class: All persons, who, within the relevant
statute of limitations period, purchased any of the Hawaiian
Snacks, in the State of Hawai'i.
b. California Class: All persons, who, within the relevant
statute of limitations period, purchased any of the Hawaiian
Snacks, in the State of California.
c. California Consumer Subclass: All persons, who, within the
relevant statute of limitations period, purchased any of the
Hawaiian Snacks for personal, family, or household purposes, in the
State of California.
The class periods span from Oct. 12, 2012, to Dec. 31, 2019.
In their prayer for relief, the Plaintiffs request: a declaration
that Defendant's conduct violates the law, injunctive and other
equitable relief, restitution, damages, punitive damages, treble
damages, attorneys' fees and costs, and pre- and post-judgment
interest.
On July 31, 2019, the Defendant filed a Motion to Dismiss the
Plaintiffs' Second Amended Class Action Complaint Filed on July 17,
2019. On Sept. 19, 2019, the Court granted in part and denied in
part the motion ("Maeda II"). It dismissed the California consumer
protection claims (Counts 4 to 6) and dismissed with leave to amend
the UDTPA claim (Count 3). The Court declined to dismiss the UDAP
(Count 1), Hawai'i false advertising (Count 2), fraud/intentional
misrepresentation (Count 7), negligent misrepresentation (Count 8),
and quasi-contract/unjust enrichment (Count 9) claims, and denied
the Defendant's standing challenge regarding unpurchased Hawaiian
Snacks.
The Plaintiffs did not amend the SAC even though the Court
permitted them to do so. Therefore, the Plaintiffs' UDAP, Hawai'i
false advertising, fraud/intentional misrepresentation, negligent
misrepresentation, and quasi-contract/unjust enrichment claims
remain.
On Nov. 30, 2020, the Plaintiffs filed a Motion for Class
Certification.
On Feb. 22, 2021, the Defendant filed three motions -- Motion to
Strike Plaintiff Michael Maeda's "Sham" Deposition Testimony;
Motion to Exclude the Testimony of Plaintiffs' Expert J. Michael
Dennis; and Motion to Exclude the Testimony of Plaintiffs' Expert
Stefan Boedeker.
On April 2, 2021, the Plaintiffs filed three motions -- Motion to
Exclude Testimony of Defendant's Expert Sarah Butler; Motion to
Strike ECF No. 118-20; and Motion to Exclude Testimony of
Defendant's Expert Andrew Y. Lemon.
On June 23, 2021, the Court denied the foregoing motions.
On June 30, 2021, the Defendant filed a Renewed Motion to Strike
Plaintiff Michael Maeda's "Sham" Deposition Testimony and the
Plaintiffs filed an Ex Parte Motion to Stay Pending Rule 23(f)
Petition. The Court denied the Ex Parte Motion to Stay.
On July 16, 2021, the parties filed the motions that are the
subject of the Order: (1) the Plaintiffs' Renewed Motion to Exclude
Testimony of Defendant's Expert Sarah Butler; (2) the Plaintiffs'
Renewed Motion to Exclude Testimony of Defendant's Expert Andrew Y.
Lemon; and (3) the Defendant's Motion to Exclude Plaintiffs' Expert
Stefan Boedeker. They filed oppositions on Aug. 2, 2021 and replies
on Aug. 9, 2021. The Court held a hearing on Sept. 22, 2021.
Discussion
A. Defense Expert Sarah Butler
The Plaintiffs move to exclude Sarah Butler's testimony on
relevance grounds. They argue that while Butler attempted to
measure the importance of the attribute "Manufacturing Location"
and its relative importance, she did not measure the importance of
the belief that the Hawaiian Snacks are from Hawai'i, which is the
relevant test for materiality.
The Defendant counters that Butler in fact conducted a two-part
consumer survey: (1) a MaxDiff exercise that measured how important
the manufacturing location of kettle style chips was to consumers
in comparison to other "important purchase drivers" and (2) a
revised referendum exercise ("RRE") that measured whether a
consumer's belief that the chips were made in Hawai'i influenced
purchasing decisions.
Judge Otake denies the Plaintiffs' motion to exclude to the extent
it seeks exclusion on relevance grounds. She finds that (i) the
Plaintiffs' failure to discuss or challenge the RRE in the motion;
(ii) the Plaintiffs' relevance argument necessarily fails, whether
applied to the MaxDiff, the RRE, or both; and (iii) the Plaintiffs
clearly disagree with Butler's conclusions, but the Court's role in
evaluating relevance is limited to whether Butler's testimony would
assist a jury, not whether she is correct.
And Even if she were to find merit in the Plaintiffs' criticisms of
the MaxDiff, Judge Otake finds that the challenges pertain to
"methodology, survey design, reliability, and critique of
conclusions,' and therefore 'go to the weight of the survey rather
than its admissibility.' She accordingly denies the Plaintiffs'
motion to exclude.
B. Plaintiffs' Expert Stefan Boedeker
The Defendant moves to exclude Boedeker on the bases that the Court
already rejected his damages model in denying class certification
and his conjoint methodology is flawed. Because the Plaintiffs
withdrew Boedeker as an expert with respect to individual damages
and they will not rely on his report or call him as a witness
(assuming the case proceeds only as to the Plaintiffs), the motion
is denied as moot.
C. Defense Expert Dr. Andrew Y. Lemon
The Plaintiffs ask the Court to exclude key findings numbers 8 and
9 from Dr. Andrew Y. Lemon's report. These findings address
Boedeker's conjoint analysis, among other things. Because the
Plaintiffs have withdrawn Boedeker as an expert regarding
individual damages, Dr. Lemon will have no reason to address
Boedeker's findings. The Plaintiffs' motion to exclude is therefore
denied as moot.
Conclusion
In accordance with the foregoing, Judge Otake denies the
Plaintiffs' Renewed Motion to Exclude Testimony of Defendant's
Expert Sarah Butler. She denies as moot the Plaintiffs' Renewed
Motion to Exclude Testimony of Defendant's Expert Andrew Y. Lemon
and the Defendant's Motion to Exclude Plaintiffs' Expert Stefan
Boedeker.
A full-text copy of the Court's Sept. 24, 2021 Order is available
at https://tinyurl.com/2hpdda7s from Leagle.com.
KNOX COUNTY, TX: Must Enforce Mask Rule in Schools, Judge Rules
---------------------------------------------------------------
Alexandra E. Petri, writing for The New York Times, reports that
two federal judges in Tennessee have dealt blows to Gov. Bill Lee's
executive order that allows families to opt out of school mask
mandates, ruling in separate cases on Sept. 24 that local districts
could require face coverings to protect children with disabilities
while legal challenges progress through the courts.
It was the third time in the past two weeks that a judge had
suspended the governor's order after parents of special education
students filed lawsuits charging the order violates the Americans
with Disabilities Act.
Earlier in September, the Knox County Board of Education had voted
against requiring masks in its schools, bucking guidance from local
and federal health officials. The following day, families who have
children with disabilities filed a class-action lawsuit, arguing
that the school board's decision did not create a safe, in-person
learning environment for children during the coronavirus pandemic.
On Sept. 24, US District Judge J. Ronnie Greer, of the Eastern
District of Tennessee, ruled that schools in Knox County must
enforce a mask rule in order to help protect children with health
problems while the lawsuit is pending. He prohibited the governor
from imposing his order until the legal battle is settled.
A similar decision was handed down by US District Judge Waverly
Crenshaw, of the Middle District of Tennessee, who said on Sept. 24
that schools in Williamson County and in the Franklin Special
School District can enforce mask mandates, also blocking the
governor's order.
Both school systems implemented strict mask policies through at
least January to combat surging infections in their districts, but
Lee's order, issued Aug. 16, forced the school officials to amend
their rules to let students forgo masks, no questions asked. Once
again, parents of special education students filed a lawsuit,
arguing that letting some students ignore the mask rules violated
the rights of special education children.
A third federal judge, this time in the western part of the state,
indefinitely blocked the governor's order in Shelby County, saying
it was an impediment to children with health problems from safely
going to school during the coronavirus pandemic.
Lee's order is set to expire Oct. 5, and he told reporters that he
has not yet decided whether to renew it. [GN]
KONINKLIJKE PHILIPS: Court Stays Norman Suit Pending JPML Ruling
----------------------------------------------------------------
In the case, JAMES H. NORMAN, individually and on behalf of all
others similarly situated, Plaintiff v. KONINKLIJKE PHILIPS N.V.;
PHILIPS NORTH AMERICA, LLC; and PHILIPS RS NORTH AMERICA, LLC,
Defendants, Case No. CV 121-131 (S.D. Ga.), Judge J. Randal Hall of
the U.S. District Court for the Southern District of Georgia,
Augusta Division, granted the Philips Defendants' motion to stay
proceedings pending a decision by the Judicial Panel on
Multidistrict Litigation.
Background
The Plaintiff filed the class action suit against the named
Defendants alleging numerous claims involving recalled medical
devices. The Philips Defendants represent that there are "more than
60 other lawsuits making similar allegations concerning the recall
and asserting similar claims" that have been filed and that similar
suits continue to be filed across the country. Due to this, a
plaintiff in another case filed a motion for transfer and
coordination or consolidation with the JPML, requesting to
centralize all of the suits, including this one.
Before the Court is the Philips Defendants' motion to stay
proceedings pending a decision by the JPML.
Discussion
The Philips Defendants have set forth strong arguments about the
benefits of a stay in the case. A stay will save judicial resources
because the multidistrict litigation could avoid duplicative
pretrial practices and promote judicial economy by consolidating
discovery efforts. Further, they argue that since the JPML briefing
was completed in August 2021, a decision will probably be made
soon, so the stay will "likely be very brief and will not prejudice
Plaintiffs." The Philips Defendants have conferred with opposing
counsel who indicated the Plaintiffs do not oppose the motion;
however, they do intend to file an amended complaint and a waiver
of summons for Defendant Koninklijke Philips N.V., which they ask
to not be precluded by any stay.
Judge Hall is satisfied that since the case is still in its
preliminary stages, a stay pending the JPML decision would conserve
judicial resources and be in the best interest of the Parties.
Accordingly, the matter is stayed pending the ruling of the JPML.
The stay will not prevent the Plaintiffs from filing an amended
complaint or a waiver of summons.
Conclusion
Based on the foregoing, Judge Hall granted the Philips Defendants'
motion to stay and directed the Clerk is directed to stay all
proceedings in the case. The Parties will file an update with the
Court within seven days of a decision by the JPML as to the motion
for transfer and coordination or consolidation.
A full-text copy of the Court's Sept. 24, 2021 Order is available
at https://tinyurl.com/3mhmj3uw from Leagle.com.
KONINKLIJKE PHILIPS: Penderghest Sues Over Defective Ventilators
----------------------------------------------------------------
TIFFANY HOOD-PENDERGHEST, LISA FLAX, and BRIAN VARDARO, on behalf
of themselves and all others similarly situated v. KONINKLIJKE
PHILIPS N.V.; PHILIPS NORTH AMERICA LLC; and PHILIPS RS NORTH
AMERICA LLC, Case No. 21-17401 (D.N.J., Sept. 23, 2021) is a class
action seeking to recover damages based on Philips' breach of
express warranty, breach of implied warranties, misrepresentations,
omissions, and breaches of state consumer protection laws in
connection with its manufacture, marketing and sales of Continuous
Positive Airway Pressure (CPAP) and Bi-Level Positive Airway
Pressure (Bi-Level PAP) devices and mechanical ventilators
containing polyester-based polyurethane sound abatement foam
(PE-PUR foam).
On June 14, 2021, Philips recalled its CPAP, Bi-Level PAP, and
mechanical ventilator devices containing PE-PUR Foam via a recall
notice. Philips recommended that patients using the recalled CPAP
and Bi-Level PAP devices immediately discontinue using their
devices and that patients using the recalled ventilators for
life-sustaining therapy consult with their physicians regarding
alternative ventilator options. The Plaintiffs did not learn of the
Recall until weeks after it was issued, says the suit.
The Plaintiffs seek medical monitoring damages for users of
Philips' devices identified in the Recall Notice, who are at risk
of suffering from serious injury, including irritation,
inflammatory response, headache, asthma, adverse effects to other
organs and toxic carcinogenic affects.
Koninklijke Philips NV is a health technology company focused on
improving people's health across the health continuum from healthy
living and prevention, to diagnosis, treatment, and home care. The
Company offers products and services in diagnostic imaging,
image-guided therapy, patient monitoring and health informatics, as
well as in consumer health and home care.[BN]
The Plaintiffs are represented by:
Simon B. Paris, Esq.
Patrick Howard, Esq.
SALTZ MONGELUZZI & BENDESKY, PC
1650 Market Street, 52nd Floor
One Liberty Place
Philadelphia, PA 19103
Telephone: (215) 496-8282
Facsimile: (215) 754-4443
E-mail: sparis@smbb.com
phoward@smbb.com
- and -
Francesco P. Trapani, Esq.
KREHER & TRAPANI LLP
Two Penn Center Plaza, Suite 900
1500 JFK Boulevard
Philadelphia, PA 19102
Telephone: (215) 907-7289
Facsimile: (215) 907-7287
E-mail: frank@krehertrapani.com
KONINKLIJKE PHILLIPS: Faruqi & Faruqi Reminds of Oct. 15 Deadline
-----------------------------------------------------------------
Faruqi & Faruqi, LLP, a leading national securities law firm, is
investigating potential claims against Koninklijke Phillips NV
("Koninklijke" or the "Company") (NYSE: PHG) and reminds investors
of the October 15, 2021 deadline to seek the role of lead plaintiff
in a federal securities class action that has been filed against
the Company.
If you suffered losses exceeding $50,000 investing in Koninklijke
stock or options between February 25, 2020 and June 11, 2021 and
would like to discuss your legal rights, call Faruqi & Faruqi
partner Josh Wilson directly at 877-247-4292 or 212-983-9330 (Ext.
1310). You may also click here for additional information:
www.faruqilaw.com/PHG.
Cannot view this image? Visit:
https://orders.newsfilecorp.com/files/6455/97669_4800ebec349fc89a_001.jpg
There is no cost or obligation to you.
Faruqi & Faruqi is a leading minority and Woman-owned national
securities law firm with offices in New York, Delaware,
Pennsylvania, California and Georgia.
As detailed below, the lawsuit focuses on whether the Company and
its executives violated federal securities laws by making false
and/or misleading statements and/or failing to disclose that: (1)
Philips had deficient product manufacturing controls or procedures;
(2) as a result, the Company's Bi-Level PAP and CPAP devices and
mechanical ventilators were manufactured using hazardous materials;
(3) accordingly, the Company's sales revenues from the foregoing
products were unsustainable; (4) the foregoing also subjected the
Company to a substantial risk of a product recall, in addition to
potential legal and/or regulatory action; and (5) as a result, the
Company's public statements were materially false and misleading at
all relevant times.
On June 14, 2021, Philips issued a voluntary recall of certain of
its Bi-Level PAP and CPAP devices, as well as mechanical
ventilators, after finding that the sound abatement foam used in
the devices can degrade and become toxic, potentially causing
cancer.
On this news, Philips' stock price fell $2.25 per share, or 3.98%,
to close at $54.25 per share on June 14, 2021.
The court-appointed lead plaintiff is the investor with the largest
financial interest in the relief sought by the class who is
adequate and typical of class members who directs and oversees the
litigation on behalf of the putative class. Any member of the
putative class may move the Court to serve as lead plaintiff
through counsel of their choice, or may choose to do nothing and
remain an absent class member. Your ability to share in any
recovery is not affected by the decision to serve as a lead
plaintiff or not.
Faruqi & Faruqi, LLP also encourages anyone with information
regarding Koninklijke's conduct to contact the firm, including
whistleblowers, former employees, shareholders and others. [GN]
LOANCARE LLC: McClellan Sues Over Mortgage Servicing Practices
--------------------------------------------------------------
RYAN MCCLELLAN, AMBER GOINS, DORIS KANE, and JOSEPH KANE, on behalf
of themselves and others similarly situated, Plaintiffs v.
LOANCARE, LLC, Defendant, Case No. 2:21-cv-00546 (E.D. Va., Sept.
27, 2021) arises from the Defendant's illegal servicing practices
and inaccurate credit reporting in violation of the Real Estate
Settlement Procedures Act and the Fair Credit Reporting Act.
The Plaintiffs' class claim involves LoanCare's systemic refusal to
provide Plaintiffs and other class members with certain account
records upon request, including servicing notes. The Plaintiffs
also dispute LoanCare's inaccurate reporting with the credit
bureaus. After LoanCare received notification of Plaintiffs'
disputes, it failed to conduct an adequate investigation or correct
its inaccurate reporting, says the suit.
The Plaintiffs were mortgage borrowers and LoanCare was the
servicer of the mortgage.
LoanCare, LLC is a mortgage loan servicing company.[BN]
The Plaintiffs are represented by:
Leonard A. Bennett, Esq.
Drew D. Sarrett, Esq.
CONSUMER LITIGATION ASSOCIATES, P.C.
763 J. Clyde Morris Blvd., Suite 1-A
Newport News, VA 23601
Telephone: (757) 930-3660
Facsimile: (757) 930-3662
E-mail: lenbennett@clalegal.com
drew@clalegal.com
- and -
Kristi C. Kelly, Esq.
Andrew J. Guzzo, Esq.
Casey S. Nash, Esq.
Pat McNichol, Esq.
KELLY GUZZO, PLC
3925 Chain Bridge Road, Suite 202
Fairfax, VA 22030
Telephone: (703) 424-7572
Facsimile: (703) 591-0167
E-mail: kkelly@kellyguzzo.com
aguzzo@kellyguzzo.com
casey@kellyguzzo.com
at@kellyguzzo.com
LONGFIN CORP: Malik Securities Class Suit Terminated as of Aug. 11
------------------------------------------------------------------
Judge Denise Cote of the U.S. District Court for the Southern
District of New York terminated the case, MOHAMMAD MALIK, Plaintiff
v. LONGFIN CORP., et al., Defendants, Case No. 18cv4953 (DLC)
(S.D.N.Y.), as of Aug. 11, 2020.
On Aug. 11, 2020, the Court entered final judgment in the
consolidated case In Re Longfin Corp. Securities Class Action
Litigation, 1:18-cv-02933-DLC, of which the captioned action was a
member case.
The Clerk of Court is directed to close the case.
A full-text copy of the Court's Sept. 22, 2021 Order is available
at https://tinyurl.com/485yf9fz from Leagle.com.
LUZERNE COUNTY, PA: Kids for Cash Scandal Lawsuit Ongoing
---------------------------------------------------------
Stacy Lange, writing for The News Station, reports that the
infamous Kids for Cash scandal will again play out in a courtroom
in our area.
A federal judge in Wilkes-Barre is scheduled to hear testimony in a
long-awaited civil hearing against the two judges at the center of
the scandal.
Testimonies were set to start on September 27, 2021.
Ten years ago, former Luzerne County Judge Mark Ciavarella was part
of a high-profile corruption trial now infamously known as "Kids
for Cash."
Ciavarella is still locked up and won't be in the courtroom when
the civil part of the case moves forward.
RELATED: No compassionate release for Ciavarella
It's unclear whether his co-defendant and fellow former Judge
Michael Conahan will be there - he was released from prison last
year due to COVID-19 concerns.
Plaintiffs in a class-action lawsuit against the two judges have
been waiting since 2009 to have their testimony heard.
More than 300 people are scheduled to take the stand during the
hearing that could last for weeks at the federal courthouse in
Wilkes-Barre.
"Kids for Cash" got its name because of the judges' arrangement to
send juvenile defendants to for-profit detention centers for
kickbacks of cash.
Prosecutors said the pair made close to $3 million in the scheme.
Now -- the plaintiffs in the civil case can argue for financial
damages. The hundreds of plaintiffs are former juvenile defendants
sentenced by the judges and their parents.
Many of those plaintiffs have already settled with the two other
defendants in the Kids for Cash case. [GN]
M AND E PIZZA: Little Sues Over Drivers' Unreimbursed Expenses
--------------------------------------------------------------
JENNIFER LITTLE, individually and on behalf of similarly situated
persons v. M and E Pizza, LLC and EDWARD W. TREACY III, Case No.
1:21-cv-01651-CCC (M.D. Pa., Sep. 27, 2021) is a collective action
under the Fair Labor Standards Act to recover unpaid minimum wages
and overtime hours owed to the Plaintiff and similarly situated
employees employed by the Defendants at their Domino's stores.
The complaint alleges that the Defendants employ delivery drivers
who use their own automobiles to deliver pizza and other food items
to their customers. However, instead of rermbursing delivery
drivers for the reasonably approximate costs of the business use of
their vehicles, Defendants use a flawed method to determine
reimbursement rates that provide such an unreasonably low rate
beneath any reasonable approximation of the expenses they incur
that the drivers' unreimbursed expenses cause their wages to fall
below the federal minimum wage during some or all workweeks.
The Plaintiff was employed by Defendants from October 2004 to July
2020 as a delivery driver at Defendants' Domino's store located in
York, Pennsylvania.
The Defendants operate numerous Domino's Pizza franchise
stores.[BN]
The Plaintiff is represented by:
Patrick Howard, Esq.
SALTZ MONGELUZZI & BENDESKY, P.C.
120 Gibraltar Road, Suite 218
Horsham, PA 19044
Telephone: (215) 496-8282
Facsimile: (215) 754-4443
MASTER BUILDERS: Court Approves Settlement Deal in D'Aquin Suit
---------------------------------------------------------------
In the class action lawsuit captioned as KEVIN D'AQUIN, ET AL.,
MASTER BUILDERS & CONTRACTORS, LLC, ET AL., Case No.
2:21-cv-00126-CJB-KWR (E.D. La.), the Hon. Judge Carl J. Barbier
entered an order:
1. granting the joint motion for court approval of settlement
agreement and dismissal;
2. approving the Parties' settlement and directing
consummation of its terms and provisions;
3. dismissing without prejudice the claims asserted by
Plaintiffs in their representative capacity;
4. dismissing with prejudice the claims asserted by
Plaintiffs in their individual capacity; and
5. denying the pending motion to certify class as moot.
A copy of the Court's order dated Sept. 29, 2021 is available from
PacerMonitor.com at https://bit.ly/3a9Uvt3 at no extra charge.[CC]
MDL 1869: BNSF Railway Brings Appeal to D.C. Cir.
-------------------------------------------------
Defendants BNSF Railway Company, et al., filed an appeal from a
court ruling entered in the multi-district litigation captioned IN
RE: RAIL FREIGHT FUEL SURCHARGE ANTITRUST LITIGATION - MDL 1869, in
the U.S. District Court for the District of Columbia.
As previously reported in the Class Action Reporter, the case
involves a putative class of over 16,000 shippers allegedly harmed
by a price-fixing conspiracy among the nation's largest freight
railroads. The lawsuit arises out of 18 antitrust actions
consolidated by the Multidistrict Litigation Panel. The Defendants
are the four largest freight railroads in the United States: BNSF
Railway Company; CSX Transportation, Inc.; Norfolk Southern Railway
Company; and Union Pacific Railroad Co. The Plaintiffs, who are
their customers, allege that the railroads conspired to fix
rate-based fuel surcharges. Railroads impose fuel surcharges --
additional charges above the base shipping price -- when the price
of fuel rises above a certain trigger price. Rate-based surcharges
are calculated as a percentage of the base shipping price.
Following consolidation, the action was divided into one case
involving direct purchasers and another involving indirect
purchasers. All the Plaintiffs alleged that the railroads violated
section 1 of the Sherman Act by conspiring to fix prices. The
direct purchasers sought treble damages under section 4 of the
Clayton Act, and the district court held that they stated a claim,
In re Rail Freight Surcharge Antitrust Litig. The indirect
purchasers sought injunctive relief under section 16 of the Clayton
Act, and raised various state-law claims. The district court held
that the state claims were preempted by federal law, but it
declined to dismiss the federal claims.
The Defendants now seek a review of the Court's Opinion and Order
dated Feb. 19, 2021, denying Defendants' Motion to Exclude
Interline-Related Communications from Consideration for Class
Certification or Any Other Purpose Prohibited by 49 U.S.C. Section
10706 and Defendants' Motion and Memorandum of Law Regarding the
Interpretation and Application of 49 U.S.C. Section 1070.
The appellate case is captioned as In re: BNSF Railway Company, et
al., Case No. 21-8002, in the United States Court of Appeals for
the District of Columbia Circuit, filed on Aug. 19, 2021.[BN]
MOHAWK INDUSTRIES: To File More Briefing on Remand Bid in Cruz Suit
-------------------------------------------------------------------
In the case, NICO CRUZ, individually and on behalf of other members
of the general public similarly situated, Plaintiff v. MOHAWK
INDUSTRIES, INC., et al., Defendants, Case No.
1:20-cv-01510-NONE-EPG (E.D. Cal.), Judge Dale A. Drozd of the U.S.
District Court for the Eastern District of California issued an
order granting the Defendants leave to file supplemental briefing
concerning motion to remand.
Plaintiff Cruz filed a putative class-action complaint in the
Fresno County Superior Court against Defendants Mohawk Industries,
Inc., Daltile Services, Inc., Dal-Tile Services, Inc., and Dal-Tile
Corporation on Sept. 14, 2020. The Defendants removed the action to
the Court on Oct. 23, 2020, invoking federal jurisdiction under the
Class Action Fairness Act of 2005 ("CAFA"). On Nov. 23, 2020, the
Plaintiff filed a motion to remand. The Defendants filed an
opposition and a request for judicial notice on Dec. 30, 2020. The
Plaintiff did not file a reply brief.
Judge Drozd has conducted a preliminary analysis and is inclined to
grant the Plaintiff's motion to remand. He says, the Defendants
have established by a preponderance of the evidence, that the
amount in controversy with respect to the Plaintiff's first,
second, third, fourth (as to unpaid wages and liquidated damages),
and ninth causes of action are, cumulatively, $4,109,869. The
Defendants' calculations for Plaintiff's fourth (as to penalties),
fifth, and seventh causes of action assume a 100% violation rate.
That assumption is impermissible given the Plaintiff's
pattern-and-practice allegations and the Defendants' failure to
provide a rationale for such a violation rate.
In addition, Judge Dorzd holds that the Defendants have not met
their burden of showing that the Court should assume the Plaintiff
will be entitled to an additional 35% for attorneys' fees. They are
attempting to show the amount in controversy based not on a
potential settlement but on what the prospective class might
receive if successful on the merits. Thus, noting that the
Plaintiff's counsel has asked to be awarded a portion of a
settlement fund as attorneys' fees does not meet the Defendants'
evidentiary burden in this regard.
Judge Drozd also holds that the Defendants do not provide proposed
amounts in controversy as to the Plaintiff's sixth, eighth and
tenth causes of action, and they have requested an order granting
leave to file supplemental briefing if helpful to the court. The
Court "has broad discretion to allow parties to supplement the
record." Judge Drozd finds that the interests of justice will be
served by permitting the supplemental filing in this instance.
The Defendants may file supplemental briefing concerning only the
above-mentioned causes of action and issues within 30 days. The
Plaintiff may file a reply brief concerning only the supplemental
briefing within 14 days thereafter.
A full-text copy of the Court's Sept. 22, 2021 Order is available
at https://tinyurl.com/yy3c3pyj from Leagle.com.
NAT'L COLLEGIATE: Denies Motion to Dismiss College Athletes' Suit
-----------------------------------------------------------------
Michael McCann, writing for Yahoo!Sports, reports that in a recent
ruling that advances the prospect of college athletes gaining
recognition as employees, Pennsylvania federal judge John Padova
denied the NCAA's motion to dismiss a lawsuit brought by Ralph
"Trey" Johnson and five other current and former athletes.
Judge Padova issued the denial in Johnson v. NCAA on Sept. 22. In
August he denied a motion to dismiss filed by those players' five
schools (Villanova, Fordham, Sacred Heart, Cornell and Lafayette).
Those schools and the NCAA are co-defendants in a case that could
eventually become certified as a class action.
A 173-page amended complaint filed on Sept. 23 expanded the roster
to 14 current and former players who are suing (seven women and
seven men). Correspondingly, the list of attended school defendants
was enlarged to add Duke, Notre Dame, Oregon, Arizona, Penn,
Purdue, Tulane, Marist and Drexel.
The NCAA insists these players lack standing to sue since the NCAA
doesn't employ them. Judge Padova disagreed. He found the players'
arguments "plausible" and thus legally sufficient to advance past a
motion to dismiss. To that point, the players contend they are
employees under both state law and the Fair Labor Standards Act, a
federal law that guarantees minimum wage and overtime pay. The FLSA
is separate from the National Labor Relations Act, which was
invoked by Northwestern football players in their unsuccessful
effort in the mid-2010s to be declared employees.
The NCAA's core argument rests in precedent. In Dawson v. NCAA
(2019), the U.S. Court of Appeals for the Ninth Circuit held that
college football players at PAC-12 schools weren't FLSA employees
of either the NCAA or PAC-12. Those football players, the Ninth
Circuit reasoned, lacked an expectation of compensation. The NCAA
also functions as regulator of college sports, not an employer of
those who compete in college sports.
The NCAA also draws from Callahan v. City of Chicago (2017), which
involved a taxi driver claiming that because the city's taxi
regulations were "so extensive," the city "must be treated as her
employer." The U.S. Court of Appeals for the Seventh Circuit
disagreed, reasoning that such an outcome would nonsensically
"produce multiple employers for every worker -- for the United
States, the State of Illinois, Cook County and other governmental
bodies permit taxi drivers to work in the same sense as Chicago
does." In other words, the government permitting people to work in
a particular occupation doesn't convert the government into their
employer. Analogously, the NCAA allowing college athletes to play
intercollegiate sports doesn't convert the NCAA into their
employer.
Judge Padova downplayed those two cases. First, neither is from the
federal circuit (the Third) governing Judge Padova's judicial
district. Those rulings are thus persuasive authority, not binding
precedent. Second, the judge emphasized how Dawson and Johnson are
"not identical" and each features distinguishable arguments and
facts. Third, he underscored that Callahan involved the City of
Chicago as a defendant whereas the NCAA "is not a governmental
entity."
The relevant legal test, Judge Padova identified, is from In re
Enterprise Rent-A-Car, a case from the U.S. Court of Appeals for
the Third Circuit in 2012. In re Enterprise involved branch
managers of a national chain arguing that the parent company was
their joint employer under the FLSA. The Third Circuit identified
four factors for determining if two entities are joint employers of
the same person.
The first factor is whether the defendant has authority to hire and
fire the workers. Judge Padova found the NCAA possesses substantial
employer-like powers, including in ways that resemble the authority
to hire and fire. For instance, NCAA bylaws tightly restrict the
recruiting process, such as by limiting the number of telephone
calls and communications with recruits as well as forbidding
inducements. The bylaws also constrict scholarships. In addition,
they contemplate penalties for non-complying member schools and --
the judge stressed -- "require member schools to suspend or fire
student athletes who are determined to be ineligible to play by
NCAA Enforcement Staff."
The second factor is authority to promulgate work rules and set
workers' compensation, benefits and work schedules. Here again
Judge Padova eyed the NCAA as functioning akin to an employer. NCAA
bylaws govern eligibility, permissible and non-permissible
benefits, and oversee athletes and schools adhering to what are
known as "Countable Athletically Related Activities" or "CARA."
CARA limits the number of hours college athletes can spend on
sports, though some athletes contend they often exceed those hours.
Most relevant here, the NCAA exercises authority by punishing
schools which fail to follow CARA rules and related scheduling
obligations.
The third factor is involvement in day-to-day supervision. Judge
Padova saw several ways the NCAA exercises such control. Among
them: setting parameters for how member schools can discipline
athletes; establishing specific grounds for when schools can reduce
or cancel scholarships; and detailing procedures for reviews and
appeals.
The fourth factor is NCAA control of players' records. Judge Padova
noted that the NCAA possesses record-keeping control through its
eligibility center. Member schools must share various pieces of
information with the center, including when a program is the target
of an NCAA investigation.
While Judge Padova declined to dismiss the FLSA claims against the
NCAA, he did dismiss those claims against 20 additional named
Division I universities, which none of the six players attended.
Those schools include Princeton, Penn State, Pittsburgh, Rutgers
and Temple. The case also involves unjust enrichment claims that
remain in play against the different groups of defendants.
A day after Judge Padova's ruling, the five attended schools
(Villanova, Fordham, Sacred Heart, Cornell and Lafayette) filed a
motion for leave to file an "interlocutory appeal." Such an appeal
is a challenge to a pretrial ruling before the case has been
decided on the merits. Interlocutory appeals seldom succeed,
however, since appellate courts typically want the entire case
resolved first.
Here, the five schools (who were joined by the NCAA in their motion
to dismiss brief) maintain that when Judge Padova denied their
motion, he wrongly relied on U.S. Supreme Court Justice Brett
Kavanaugh's concurrence in NCAA v. Alston. That often-discussed
concurrence blasted NCAA rules limiting athlete compensation. The
schools stress that Justice Kavanaugh's viewpoints should be
regarded as dicta (that is, commentary non-essential to the
holding) and not the law -- only the majority opinion, as authored
by Justice Neil Gorsuch, governs. The schools also insist that
Judge Padova failed to adequately consider Berger v. NCAA, a
Seventh Circuit case from 2016 that found college athletes are
amateurs, not employees.
Moving forward, the players, as represented by attorneys Paul
McDonald, Michael Willemin, Renan Varghese and others, still have a
long road ahead before prevailing. Plus, any jury trial victory
would almost certainly be appealed to the Third Circuit. However,
as the case progresses, the attorneys can extract more evidence
from the NCAA and demand sworn testimony on sensitive topics. Fresh
off a 9-0 defeat in Alston, it will be worth watching whether the
NCAA chooses to play the long legal game in Johnson or whether it
"voluntarily" reforms college athletes' rights. [GN]
NATHANIEL WOODS: Bid to Quash Writ of Garnishment in Bell Denied
----------------------------------------------------------------
In the case, KENNETH D. BELL, Plaintiff v. NATHANIEL WOODS,
Defendant, Case No. 5:20-mc-10-JSM-PRL (M.D. Fla.), Magistrate
Judge Philip R. Lammens of the U.S. District Court for the Middle
District of Florida, Ocala Division, denied Woods' motion to
dissolve writ of garnishment and motion to quash writ of
garnishment.
The case is before the Court for consideration of two motions filed
by Defendant Woods: (1) motion to dissolve writ of garnishment; and
(2) motion to quash writ of garnishment. Both motions pertain to
the writs of garnishment recently issued in the case.
Mr. Woods seeks to quash or dissolve the writs and contends that
the Plaintiff has no right to enforce them because the foreign
judgment in the case was assigned to another party. He also asserts
a collateral challenge to the class action judgment that was
registered in the Court to initiate the case.
Judge Lammens holds that the procedure for dissolution of writs of
garnishment is governed by Florida Statutes Section 77.047.
Meanwhile, the case is also governed by the Court's Local Rules,
and the Defendant's motions lack the certification required by Rule
3.01(g). Judge Lammens says that Local Rule 3.01(g) provides that
"before filing any motion in a civil action, except a motion for
injunctive relief, for judgment on the pleadings, for summary
judgment, or to certify a class, the movant must confer with the
opposing party in a good faith effort to resolve the motion." There
is no exception for motions for dissolution of writs of garnishment
or for motions to quash a writ of garnishment.
Accordingly, Judge Lammens denied the Defendant's motions without
prejudice for failure to comply with Local Rule 3.01(g). If the
Defendant wishes to re-file his motions, he may do so within 14
days of the entry date of the Order, provided that he has fully
complied with both the letter and spirit of Local Rule 3.01(g).
A full-text copy of the Court's Sept. 24, 2021 Order is available
at https://tinyurl.com/kwu6urcm from Leagle.com.
NATIONSTAR MORTGAGE: Court Partly Excludes McNamee's Expert Report
------------------------------------------------------------------
In the case, CHARLES D. McNAMEE, Plaintiffs v. NATIONSTAR MORTGAGE
LLC, Defendant, Case No. 14-1948 (S.D. Ohio), Judge Algenon L.
Marbley of the U.S. District Court for the Southern District of
Ohio, Eastern Division, granted in part and denied in part
Nationstar's Motion in Limine to Exclude Plaintiff's Expert Report
and Testimony.
Background
Plaintiff McNamee brought the class action complaint against
Nationstar on Oct. 17, 2014, alleging violations of the Fair Debt
Collection Practices Act ("FDCPA"). The complaint sought class
certification, a finding that Nationstar's conduct violated the
FDCPA, and a civil judgment for statutory damages, costs, and
attorney's fees. The Plaintiff claims that Nationstar improperly
sent him, and those similarly situated, mailings related to
mortgages that had been discharged in bankruptcy.
Relevant to the instant Motion, these mailings included Mortgage
Loan Statements, Nationstar sent the Plaintiff every month
beginning in January 2013. The first page of the Mortgage Loan
Statement contains a significant amount of information including,
but not limited to: a statement date, a payment due date, a loan
number, the principal and interest balance, the escrow amount, the
lender paid expenses, the amount due, and the interest rate.
At the end of the first page is a section labeled "Important
Messages." The section contains the following language: "This
statement is sent for informational purposes only and is not
intended as an attempt to collect, assess, or recover a discharged
debt from you, or as a, or demand for payment from, any individual
protected by the United States Bankruptcy Code. If this account is
active or has been discharged in a bankruptcy proceeding, be
advised this communication is for information purposes only and is
not an attempt to collect a debt. Please note, however Nationstar
reserves the right to exercise its legal rights, including but not
limited to foreclosure of its lien interest, only against the
property securing the original obligation."
Among other things, the parties dispute whether these Mortgage Loan
Statements were sent in connection with an attempt to collect a
debt. More specifically, they dispute whether the language quoted
is deceptive and/or misleading within the meaning of Section 1692e
of the FDCPA.
Nationstar filed a partial Motion to Dismiss along with its Answer
on Jan. 12, 2015. The Court granted Nationstar's Motion and
dismissed Count II for failure to state a claim on Sept. 4, 2015.
Thereafter, on July 28, 2017, the Plaintiff moved for class
certification. After that Motion was fully briefed, the Court held
a hearing on March 29, 2020. The next day, the Court granted the
Plaintiff's Motion and certified four classes. Following the
conclusion of discovery, each party moved for summary judgment.
After holding oral argument on Nov. 24, 2020, the Court denied the
Plaintiff's Motion and granted in part the Defendant's. In so
ruling, and as relevant to the instant Motion, the Court determined
that whether the Mortgage Loan Statements were deceptive and/or
misleading was a disputed question of fact that must be left to a
jury."
Following its ruling, on March 4, 2021, the Court issued an Order
setting a trial date and settlement conference, as well as
associated deadlines for disclosures, witness lists, designation of
deposition portions, exhibits, and trial motions. That Order was
subsequently amended on June 16, 2021. In the interim, the
Plaintiff moved to extend the deadline for expert disclosures by 35
days. The Court granted the Plaintiff's Motion, continuing trial
and other deadlines to ensure there was no harm to the Defendant
from the Plaintiff's requested extension. Accordingly, the trial
date was reset to Oct. 25, 2021, with a settlement conference set
for Sept. 15, 2021.
Prior to the settlement conference, the Defendant raised an issue
with the Court regarding the Plaintiff's expert, Dr. Martin
Saperstein. Dr. Saperstein was engaged by the Plaintiff to aid in
proving that the Disclaimer Language would mislead or confuse the
reasonable unsophisticated consumer. In the course of his
engagement, Dr. Saperstein conducted a 1000-person online survey.
The Defendant represents that upon reviewing Dr. Saperstein's
report, its own expert realized the report, and accompanying
survey, did not include the Disclaimer Language. Rather, the survey
conducted by Dr. Saperstein was "predicated upon the survey
participant's review" of an entirely different Mortgage Loan
Statement, with entirely different disclaimer language. Given this
mistake, the Defendant represented it planned to file a motion to
exclude this report as irrelevant, and any subsequent supplemental
report as untimely. Upon receiving notice of this error, the
Plaintiff directed Dr. Saperstein to conduct a corrective survey
and report. The Plaintiff's counsel provided the Defendant's
counsel with the Corrective Report on Aug. 18, 2021. The Defendants
filed the instant Motion that same day.
In its Motion, the Defendant ask the Court to "strike the
Plaintiff's current expert disclosure and report and, pursuant to
Fed. R. Civ. P. 37(c)(1), any new expert disclosure and report
produced by the Plaintiff." It also requests that the Court awards
it fees and expenses incurred in preparing its rebuttal expert
report and the instant Motion. Regarding the Plaintiff's current
expert disclosure and report -- as prepared by Dr. Saperstein --
the Defendant argues that because it "uses the wrong mortgage
statement, it flunks the Daubert test's requirement that an expert
opinion be relevant to a material issue in the case."
Accordingly, the Defendant contends, that this "expert report and
any testimony based on it should be excluded under Rule 702 of the
Federal Rules of Evidence." Furthermore, it asserts that the
Corrective Report fails to comply with Fed. R. Civ. P. 26(a)(2)(B),
as it is not a proper supplementation. Should the Court determine
the supplement is proper, the Defendant alternatively argues that
the Corrective Report remains untimely, and the Plaintiff has not
shown either "substantial justification" or "harmlessness,"
pursuant to Rule 26.
For his part, the Plaintiff acknowledges the error in Dr.
Saperstein's original report. Accordingly, the Plaintiff has
withdrawn this report and analysis as expert-based evidence in the
case. However, the Plaintiff argues that the data underlying Dr.
Saperstein's original report, separate from the expert analysis,
"should not be excluded under Daubert." Furthermore, the Plaintiff
contends that Corrective Report is a proper supplementation under
Fed. R. Civ. P. 26(e), and therefore, should not be excluded.
In reply, the Defendant maintains its arguments that Dr.
Saperstein's original report, including the corresponding data, is
irrelevant and that the Corrective Report should be excluded as an
improper supplement. Additionally, it argues that because the
Plaintiff had access to the Disclaimer Language from the outset of
the case, their failure properly to include it in Dr. Saperstein's
original report is not substantially justified and harmful.
The Defendant's Motion to Exclude is now fully briefed and ripe for
the Court's consideration.
Discussion
A. Dr. Saperstein's Original Report
Judge Marbley opines that there is no debate that Dr. Saperstein's
original report relies on the incorrect Mortgage Loan Statement and
is therefore, irrelevant. He says, while the Plaintiff does not
dispute this contention, he does argue that the survey data
underlying Dr. Saperstein's original report provides potentially
useful information, and is therefore relevant. Specifically, he
alleges that this underlying data shows survey participants'
perception of a non-bankruptcy Mortgage Loan Statement, albeit not
the one at issue in the case. The Plaintiff's argument, however, is
misplaced. The data is just as irrelevant as Dr. Saperstein's
analysis of it.
As the Court detailed when ruling on the parties' summary judgment
motions, Judge Marbley holds that the relevant inquiry in the case
is "whether, to the least sophisticated consumer, the Mortgage Loan
Statements at issue are 'materially false or misleading.'" The
question is not whether any Mortgage Loan Statement language is
false or misleading; it is whether this specific Mortgage Loan
Statement language is false or misleading. The survey respondents'
perception of this other Mortgage Loan Statement language does not
have any bearing on how those same respondents perceived the
Mortgage Loan Statement at issue.
Said differently, Judge Marbley opines that there is no connection
between the Survey respondents' perception of this other Mortgage
Loan Statement language, and the disputed factual issue on which
Dr. Saperstein is expected to testify. Accordingly, because Dr.
Saperstein's original report and the data underlying it cannot
assist the trier of fact to understand the evidence or to determine
a fact in issue, they are irrelevant. As a result, the Defendant's
request to exclude this evidence is granted.
B. The Corrective Report
Judge Marbley finds that the Corrective Report falls within the
bounds of a proper supplement under Rule 26(e). In substance, the
Corrective Report and accompanying survey correct the deficiency in
the original survey and report, by relying on the correct Mortgage
Loan Statement language. The course of this litigation has not yet
concluded: The original report, albeit inaccurate, was produced at
the appointed time; the Corrective Report was produced before the
deadline for pretrial disclosures; and the Defendants still have
the opportunity to depose Dr. Saperstein should they wish to, as
the trial date is still a month away. As such, the Defendant can
cure the surprise, to the extent there is any. Furthermore,
allowing this evidence will not disrupt trial, as any curative
measures are not substantial. Indeed, this evidence is important
because none of the Plaintiff's other experts addresses the alleged
misleading nature of the Mortgage Loan Statement language.
Thus, even if the Corrective Report is not treated as a supplement,
the resulting prejudice to the Defendant is limited and the Court
would not exclude the corrective report under Rule 37(c)(1) because
the violation is ultimately harmless. Accordingly, Judge Marbley
denied the Defendant's request to exclude the Corrective Report,
and any corresponding testimony.
C. Fees
Judge Marbley addresses the Defendant's request that the Court
awards it fees and expenses incurred in preparing its rebuttal
expert report and the instant Motion. Notably, in neither its
Motion nor Reply brief, does the Defendant make a substantive
argument in support of its request for fees.
An award of fees under Rule 37(c)(1) is discretionary. Furthermore,
such an award is only appropriate where the non-moving party failed
to properly supplement. That did not occur in the case, Judge
Marbley opines. As detailed, the Corrective Report was a timely and
appropriate supplement. Accordingly, the Defendant's request for
fees and expenses is denied.
Conclusion
For the foregoing reasons, Judge Marbley granted in part and denied
in part Defendant Nationstar's Motion in Limine to Exclude.
A full-text copy of the Court's Sept. 24, 2021 Opinion & Order is
available at https://tinyurl.com/nxwr97bp from Leagle.com.
NATIONWIDE AGRIBUSINESS: Smith Sues Over Vehicle's Unpaid Sales Tax
-------------------------------------------------------------------
Abra Smith, individually and on behalf of all others similarly
situated v. Nationwide Agribusiness Insurance Company, an Iowa
Corporation, Case No. CV 21 953473 (Ohio Ct. Com. Pl., Cuyahoga
Cty., Sept. 24, 2021) is a class action lawsuit by Plaintiff who
was the named insured under a Nationwide automobile policy for
private passenger auto physical damage, pursuant to which Defendant
was required to pay the applicable sales tax for a damaged or
stolen vehicle as part of a payment of loss.
The Plaintiff and all Class Members made a claim determined by
Nationwide to be a first-party loss under the insurance policy and
determined by Nationwide to be a covered claim.
According to the complaint, upon the loss to the insured vehicles,
Plaintiff and every Class Member were owed the sales tax as part of
their loss payment. However, Defendant allegedly failed to include
sales tax in making the loss claim payments.
Nationwide Agribusiness Insurance Company operates as an insurance
company. The Company provides agricultural insurance services
throughout the United States.[BN]
The Plaintiff is represented by:
Andrew J. Shamis, Esq.
SHAMIS & GENTILE
14 NE 1st Avenue, Suite 705
Miami, FL 33132
Telephone: (305) 479-2299
E-mail: ashamis@shamisgentile.com
- and -
Rachel Dapeer, Esq.
DAPEER LAW, P.A.
20900 NE 30th Ave., Suite 417
Aventura, FL 33180
Telephone: (305) 610-5223
E-mail: rachel@dapeer.com
- and -
Scott Edelsberg, Esq.
EDELSBERG LAW, P.A.
20900 NE 30th Ave., Suite 417
Aventura, FL 33180
E-mail: scott@edelsberglaw.com
- and -
Edmund A. Normand, Esq.
Jacob L. Phillips, Esq.
Post Office Box 1400036
Orlando, FL 32814-0036
Telephone: (407) 603-6031
E-mail: ed@ednormand.com
jacob.phillips@normandpllc.com
NATROL LLC: Vitello Appeals Summary Judgment Ruling to 8th Cir.
---------------------------------------------------------------
Plaintiff Christine Vitello filed an appeal from a court ruling
entered in the lawsuit styled CHRISTINE VITELLO, Plaintiff v.
NATROL, LLC, Defendant, Case No. 4:18-cv-00915-SEP, in the U.S.
District Court for the Eastern District of Missouri - St. Louis.
As reported in the Class Action Reporter on Sept. 9, 2021, Judge
Sarah E. Pitlyk of the Eastern District of Missouri, Eastern
Division, granted Defendant Natrol's motion for summary judgment.
Plaintiff Vitello brings this action individually and on behalf of
others similarly situated, alleging Defendant Natrol violated the
Missouri Merchandising Practices Act (MMPA) and that Natrol is
liable to purchasers of its product, Cognium, for unjust
enrichment. Cognium is a "nutraceutical" that, according to
Natrol's advertising, improves memory and concentration for
consumers who ingest it twice daily over a period of four weeks.
According to Cognium's packaging, the nutraceutical is "powered" by
Cera-Q, a natural protein found in silkworm cocoons. In her Amended
Complaint, Vitello alleges that Natrol advertised that nine
clinical studies supported its efficacy, when in fact two of those
studies had been discredited.
Ms. Vitello suffers from attention-deficit disorder (ADD), and she
had been taking Adderall to treat her ADD since 2004. In June 2017,
she stopped taking Adderall and began taking Cognium, hoping
"Cognium would be a better alternative to Adderall." Vitello claims
she took Cognium according to the directions provided by Natrol but
did not experience any improvement in her memory, concentration, or
cognition. She contends that she would not have purchased Cognium
had Natrol not made the representations concerning the product's
allegedly proven results.
Ms. Vitello had sought damages as well as establishment of a
Missouri consumer subclass under the MMPA and a nationwide class
under the doctrine of unjust enrichment.
The Plaintiff now seeks a review of the Court's order granting
Defendant Natrol's motion for summary judgment.
The appellate case is captioned as Christine Vitello v. Natrol,
LLC, Case No. 21-3150, in the United States Court of Appeals for
the Eighth Circuit, filed on Sept. 24, 2021.
The briefing schedule in the Appellate Case states that:
-- Transcript is due on or before November 3, 2021;
-- Appendix is due on November 15, 2021;
-- BRIEF APPELLANT, Christine Vitello is due on November 15,
2021; and
-- Appellee brief is due 30 days from the date the court issues
the Notice of Docket Activity filing the brief of appellant.[BN]
Plaintiff-Appellant Christine Vitello, on behalf of herself and
others similarly situated, is represented by:
Jonathan Edward Fortman, Esq.
LAW OFFICE OF JONATHAN E. FORTMAN, LLC
250 Saint Catherine Street
Florissant, MO 63031
Telephone: (314) 522-2312
E-mail: jef@fortmanlaw.com
Defendant-Appellee Natrol, LLC, a Delaware corporation, is
represented by:
Steven J. Alagna, Esq.
Alicia E. Olszeski, Esq.
BRYAN & CAVE
3600 One Metropolitan Square
211 N. Broadway
Saint Louis, MO 63102-2186
Telephone: (314) 259-2000
E-mail: ali.olszeski@bclplaw.com
- and -
Jacob A. Kramer, Esq.
BRYAN & CAVE
1155 F Street, N.W.
Washington, DC 20004
Telephone: (202) 508-6000
E-mail: jake.kramer@bclplaw.com
NATURE'S BOUNTY: Baines Sues Over Mislabeled Fish Oil Supplements
-----------------------------------------------------------------
MASHON BAINES on behalf of herself and all others similarly
situated, Plaintiff v. NATURE'S BOUNTY (NY), INC. and THE BOUNTIFUL
COMPANY (NY) Defendants, Case No. 1:21-cv-05330 (E.D.N.Y., Sept.
24, 2021) is a class action on behalf of a nationwide and New York
class of consumers, seeking redress for Defendants' deceptive
practices associated with the advertising, labeling and sale of its
Nature's Bounty 1400 mg. Fish Oil.
According to the complaint, the Defendants manufacture, label and
sell a product which they claim to be 1400 mg. of Fish Oil
containing of 647 mg. of Eicosapentaenoic Acid (EPA) and 253 mg. of
Docosahexaenoic Acid (DHA) -- the essential omega-3 fatty acids
that naturally occur in fish. However, contrary to what is
represented on the label, the product is not fish oil, nor does it
contain a single milligram of EPA or DHA.
Throughout the applicable class period, the Defendants falsely
represented the fundamental nature of their product, and as a
result of this false and misleading labeling, were able to sell
these products to tens of thousands of unsuspecting consumers
throughout New York and the United States, asserts the complaint.
Nature's Bounty Inc., is a New York Corporation with its principal
place of business in Ronkonkoma, New York. Nature's Bounty is the
flagship brand of The Bountiful Company, a manufacturer, marketer
and seller of vitamins, minerals, herbal and other specialty
supplements.[BN]
The Plaintiff is represented by:
Laurence D. King, Esq.
Maia C. Kats, Esq.
KAPLAN FOX & KILSHEIMER LLP
850 Third Avenue
New York, NY 10022
Telephone: (212) 687-1980
Facsimile: (212) 687-7714
E-mail: lking@kaplanfox.com
mkats@kaplanfox.com
- and -
Michael D. Braun, Esq.
KUZYK LAW, LLP
1999 Avenue of the Stars, Suite 1100
Los Angeles, CA 90067
Telephone: (213) 401-4100
Facsimile: (213) 401-0311
E-mail: mdb@kuzykclassactions.com
NATURECHEM INC: Bid for Summary Judgment Junked w/o Prejudice
-------------------------------------------------------------
In the class action lawsuit captioned as RONNIE BREECE, GERALD
CHAPPELL, PATRICK MAY, and GARY MORAN, individually and on behalf
of all others similarly situated, v. NATURECHEM, INC., Case No.
3:19-cv-02552-JMC (D.S.C.), the Hon. Judge J Michelle Childs
entered an order denying Defendant's motion for summary judgment
without prejudice.
The Court said, "Summary judgment is premature at this time
"because a per diem either can be excluded from, or included in, a
regular wage depending on myriad factors and purposes, [making] a
case-specific factual inquiry necessary." Baouch v. Werner
Enterprises, Inc., 908 F.3d 1107, 1115 (8th Cir. 2018) (citing
Berry v. Excel Group, Inc., 288 F.3d 252, 254 (5th Cir. 2002)). The
reasonableness of the per diem payments is a fact-based inquiry set
forth on a "case-by-case basis." The Defendant relies on the
United States General Services Administration standards pursuant to
41 CFR subtitle F to aver that the per diem payments are reasonable
as a matter of law. However, these standards alone cannot establish
reasonableness, and discovery in the record is incomplete. The
Defendant has not responded to Plaintiffs' discovery requests, no
depositions have been taken, and discovery has been stayed based on
Defendant's Motion. Cognizant of the posture of this action and the
factual inquiry required to determine reasonableness of the per
diem payments, the court finds that Defendant's Motion for Summary
Judgment is premature at this time."
The Plaintiffs brought this action on behalf of themselves and all
similarly situated current and/or former employees of Defendant
NaturChem, Inc., alleging Defendant willfully violated the Fair
Labor Standards Act ("FLSA"), and other applicable rules,
regulations, statutes, and ordinances.
The Plaintiffs Ronnie Breece, Gerald Chappell, Patrick May, and
Gary Moran were employed by Defendant as spray technicians and
would travel to Defendant's customers' locations and perform
landscaping duties across the United States.
The Plaintiffs contend they were scheduled to work, and regularly
worked, in excess of 40 hours per week, sometimes working as many
as 70 hours in one week. The Plaintiffs allege Defendant paid
"their straight hourly or salaried rates of pay for all hours
worked up to, and including, 40 hours," and then paid them "a
sub-minimum wage overtime rate of $4.50-$5.00 per hour -- a rate it
called "Chinese overtime -- for all hours in excess of 40 in one
workweek."
NaturChem is a South Carolina corporation specializing in
vegetation management.
A copy of the Court's order dated Sept. 27, 2021 is available from
PacerMonitor.com at https://bit.ly/3AcyLrc at no extra charge.[CC]
NEW YORK, NY: Class Action Over Sealed Arrest Records Pending
-------------------------------------------------------------
New York Daily News reports that a class-action lawsuit brought by
public defenders in the Bronx asks a court to bar the NYPD from
access to its own records of arrests in cases that were later
sealed by the courts. And I'm not just talking about cases merely
being made confidential, but being essentially erased. That's a
very bad idea.
Arrest records -- photos, files, statements, videos -- are sealed
when an arrest results in other than a conviction or guilty plea.
There are good reasons for this. "Sealing" means the record is
rendered invisible to public record searches, so as not to affect a
person's chances with prospective employers, landlords, schools or
public benefits.
However, arrest records may still be accessed by police for a
proper purpose under limited circumstances. Why? Because sealing of
criminal records does not always equate to a determination of
innocence, and there are a number of legitimate reasons for cops to
know the records exist.
District Attorneys may dismiss a criminal violent gang because of a
frightened witness or reluctant victims in domestic violence cases.
A defendant who is sentenced to attend a program as an alternative
to prison will have a sealed record if they complete the program.
Plea bargains are frequently offered to defendants, which result in
dismissal and sealing. District attorneys can move to dismiss a
perfectly legitimate arrest simply for policy reasons, resulting in
the record being sealed.
If the city loses this lawsuit, all these sealed records could
become completely invisible to police. We wouldn't even be able to
know they exist. We would be meeting "the perpetual first offender"
because the NYPD's own records of their other arrests, sometimes
dozens, will not show up in our systems.
It's not hard for me to think of dangerous scenarios unfolding.
Think of the undercover officer who will not know the target he is
meeting to buy an illegal gun from has been arrested in three prior
shootings because the records are sealed.
Think of the sexual predator who has been arrested for twice for
molesting a child and the cases were sealed because parents did not
want their children to go through the trauma of testifying in open
court. Two years later, when he emerges as a possible suspect in
the kidnapping and murder of another child, all a detective sees is
a person who's never had a brush with the law because the records
are now invisible.
Consider the scores of domestic violence cases where a spouse has
been beaten and then too afraid to testify so the charges are
dropped and the case is sealed. Domestic violence officers may not
know to flag that victim for follow-up visits if there is no record
of the case. Worse, the next time the victim is assaulted, those
officers may have no indication that it is actually the third time,
not the first.
And what about our own efforts at police discipline? Let's say a
police officer made an arrest and it was later dismissed and then
sealed. Now let's say a complaint against the arresting officer.
Our own Internal Affairs detectives would be barred from access the
records of the arrest -- including body camera video -- to begin an
investigation to determine whether the officer was abusive or made
false a statement. Is that wise?
The public defenders argue that the logical approach in all these
instances would be for the NYPD petition the court for an order to
unseal the records. But in this lawsuit, the plaintiffs also argue
that police shouldn't be allowed to see that a sealed record exists
-- so how would we know to ask a court to grant access?
There are more mundane, yet legally required functions that would
be affected. The City Council has passed 23 laws mandating the NYPD
to report to them quarterly on the number of arrests made on
certain kinds of quality of life offenses including arrests for
drug offenses, and certain hate crimes. Some of these charges, for
example, turnstile-jumping in the subways, are routinely dismissed
by district attorneys as a matter of policy. The numbers of arrests
we reported would be inaccurate because our own records in cases
that district attorneys decided not to prosecute would simply be
off-limits.
A number of recently enacted laws allow for people convicted of
crimes who have kept out of trouble for 10 years to apply to have
their criminal records sealed. Those laws are written to include
access to those sealed records for police, sheriffs, child welfare
agencies, courts and others with a legitimate need in certain cases
to access those records. That makes good sense.
What is taking place today is that a handful of plaintiffs want to
push the courts to stretch the bounds of the original intent of the
sealing laws far beyond what anyone contemplated when the law was
passed in 1976. This would be a serious setback for public safety.
[GN]
NEW YORK: Second Circuit Appeal Filed in Gulino Suit re Serreti
---------------------------------------------------------------
Defendant Board of Education of the City School District of the
City of New York filed an appeal from the District Court's Judgment
dated August 18, 2021, entered in the lawsuit styled GULINO, ET AL.
v. THE BOARD OF EDUCATION OF THE CITY SCHOOL DISTRICT OF THE CITY
OF NEW YORK, Case No. 96-cv-8414, in the U.S. District Court for
the Southern District of New York (New York City).
As previously reported in the Class Action Reporter, the
Plaintiffs, a group of African-American and Latino teachers in the
New York City public school system, alleged that the Defendant, the
Board of Education of the City School District of the City of New
York, violated Title VII of the Civil Rights Act of 1964, 42 U.S.C.
Section 2000e et seq., by requiring Plaintiffs to pass certain
racially discriminatory standardized tests in order to obtain a
license to teach in New York City public schools. Judge Constance
Baker Motley, to whom the case was originally assigned, certified
the plaintiff class on July 13, 2001, pursuant to Federal Rule of
Civil Procedure 23(b)(2).
On December 5, 2012, the Court decertified the Plaintiff class to
the extent it sought damages and individualized injunctive relief
in light of the Supreme Court's decision in Wal-Mart Stores, Inc.
v. Dukes, 131 S.Ct. 2541 (2011). The class survived, however, to
the extent Plaintiffs sought relief that may be awarded under Rule
23(b)(2), including a declaratory judgment regarding liability and
class-wide injunctive relief.
The Defendant seeks a review of the Court's Judgment, classifying
Denny Serreti as a member of the Plaintiff class in this action,
and holding that the Plaintiff is entitled to monetary and
injunctive relief from Defendant as compensation for the injuries
she suffered as a result of what the Court found to be the
Defendant's discrimination.
The appellate case is captioned as In re: New York City Board of
Education, Case No. 21-2423, in the United States Court of Appeals
for the Second Circuit, filed on Sep. 24, 2021.[BN]
Defendant-Appellant Board of Education of the City School District
of the City of New York is represented by:
Georgia Mary Pestana, Esq.
INTERIM CORPORATION COUNSEL
NEW YORK CITY LAW DEPARTMENT
100 Church Street
New York, NY 10007
Telephone: (212) 356-2400
Plaintiff-Appellee Denny Serreti is represented by:
Joshua S. Sohn, Esq.
STROOCK & STROOCK & LAVAN LLP
180 Maiden Lane
New York, NY 10038
Telephone: (212) 806-1245
E-mail: jsohn@stroock.com
NEWLINK GENETICS: Attorneys' Fees & Expenses Awarded in Nguyen Suit
-------------------------------------------------------------------
In the case, MICHAEL NGUYEN and KELLY NGUYEN, Individually And On
Behalf of All Others Similarly Situated, Plaintiffs v. NEWLINK
GENETICS CORPORATION, CHARLES J. LINK, JR., and NICHOLAS N.
VAHANIAN, Defendants, Case No. 1:16-CV-3545-AJN-OTW (S.D.N.Y.),
Judge Alison J. Nathan of the U.S. District Court for the Southern
District of New York issues an order awarding attorneys' fees and
litigation expenses, and award to the Lead Plaintiff.
The matter came before the Court on Sept. 22, 2021, on the Motion
of Lead for An Award of Attorneys' Fees, Reimbursement of
Litigation Expenses, and Award to Lead Plaintiff. Judge Nathan,
having considered all papers filed and proceedings conducted
therein, having found the Settlement of the Litigation to be fair,
reasonable and adequate, and otherwise being fully informed in the
premises, and good cause appearing therefore, awards attorneys'
fees of 33.2153% of the Settlement Amount, plus expenses in the
amount of $51,239.46, together with the interest earned on both
amounts for the same time period and at the same rate as that
earned on the Settlement Fund until paid.
The awarded attorneys' fees and expenses, and interest earned
thereon, will be paid to the Lead Counsel once 70% of the Net
Settlement Fund has been distributed and subject to the terms,
conditions, and obligations of the Stipulation, which terms,
conditions, and obligations are incorporated therein.
Pursuant to 15 U.S.C. Section 78u-4(a)(4), Judge Nathan awards
$5,000 to Lead Plaintiff Michael Nguyen for the time he spent
directly related to its representation of the Class.
Any appeal or any challenge affecting the Court's approval
regarding the Fee Motion will in no way disturb or affect the
finality of the Judgment entered with respect to the Settlement.
In the event that the Settlement is terminated or does not become
Final or the Effective Date does not occur in accordance with the
terms of the Stipulation, the Order will be rendered null and void
to the extent provided in the Stipulation and will be vacated in
accordance with the Stipulation.
A full-text copy of the Court's Sept. 22, 2021 Order is available
at https://tinyurl.com/3hs28emn from Leagle.com.
NOVO NORDISK: Inks $100M Settlement Over Insulin Pricing Class Suit
-------------------------------------------------------------------
Kevin Dunleavy at fiercepharma.com reports that after Novo Nordisk
allegedly told investors it was resistant to industrywide insulin
pricing pressures, some shareholders brought a class action lawsuit
claiming they were misled. In a federal district court in New
Jersey, Novo Nordisk agreed to a $100 million settlement with those
disgruntled investors.
The Danish drugmaker cut the deal while maintaining that the move
was not an admission of wrongdoing. Novo Nordisk said the claims
were without merit and that it was settling to "avoid the burden,
inherent risk and expense of further litigation," the Danish
diabetes specialist said in a statement.
The deal stems from a 2017 lawsuit filed by purchasers of American
Depository Receipts, which are equity securities created to
simplify foreign investing for U.S. investors. The plaintiffs had
demanded approximately $1.75 billion in compensation for losses
incurred from February of 2015 to February of 2017.
During that period, insulin makers came under fire for their
climbing prices, even as sales were falling. For many years,
insulin makers have had to compete against one another by offering
bigger and bigger rebates.
The dynamic caused patients to pay more for their medicines even as
drugmakers reported flat or declining net sales.
In a court filing, plaintiffs said that while other companies told
investors that their insulin-related revenues would diminish as a
result of pricing pressures, Novo Nordisk executives assured
investors that the company was not subject to the same pressures
and that its sales and profits would continue to grow.
The news comes during a year in which Novo Nordisk's fortunes have
risen thanks to its diabetes standouts Ozempic and Rybelsus and
excitement over its new drug Wegovy, hailed as a potential
game-changer in combatting obesity. [GN]
OLAM SPICES: Class Settlement in Beltran Suit Wins Prelim. Approval
-------------------------------------------------------------------
In the case, THOMAS BELTRAN, et al., Plaintiffs v. OLAM SPICES AND
VEGETABLES, AND GRANTING PLAINTIFFS' MOTION INC., Defendant, Case
No. 1:18-cv-01676-NONE-SAB (E.D. Cal.), Judge Dale A. Drozd of the
U.S. District Court for the Eastern District of California granted
the joint motion for preliminary approval of the class action and
collective action settlement, filed April 13, 2020.
On April 13, 2020, a motion for preliminary approval of a class and
collective action settlement was filed in the action. The motion
was referred to a United States magistrate judge pursuant to 28
U.S.C. Section 636(b)(1)(B) and Local Rule 302.
On June 2, 2020, the assigned magistrate judge issued findings and
recommendations, finding that there were deficiencies in the motion
for preliminary approval that precluded a finding that it was a
fair, adequate, and reasonable settlement of the claims and
recommending denial of the motion. After the parties filed
objections and supplemental briefing, the matter was re-referred to
the magistrate judge.
On June 4, 2021, the magistrate judge filed a supplemental findings
and recommendations recommending that the motion for preliminary
approval of the class action and collective action settlement be
approved. The findings and recommendations were served on the
parties and contained notice that any objections thereto were to be
filed within fourteen days from the date of service. The period for
filing objections has passed and no objections have been filed.
In accordance with the provisions of 28 U.S.C. Section
636(b)(1)(C), Judge Drozd has conducted a de novo review of the
case. Having carefully reviewed the entire file, he finds the
findings and recommendations to be supported by the record and by
proper analysis.
Judge Drozd has already expressed hesitation regarding the proposed
incentive payments and attorneys' fees in the proposed settlement
of the case. He says, the magistrate judge correctly noted that
preliminary approval of the fees will require additional support at
final approval.
Accordingly, Judge Drozd adopted the findings and recommendations
issued on June 4, 2021. He granted the joint motion for preliminary
approval of the class action and collective action settlement,
filed April 13, 2020.
For the purposes of settlement, the following Rule 23 class is
conditionally certified: "All persons who were employed by Olam
West Coast, Inc. (Defendant) in a position that Defendant
classified as non-exempt and/or hourly non-exempt and worked in
that capacity at Defendant's Fresno, Firebaugh, Hanford, Lemoore,
Gilroy and/or Williams facilities in California and for which Class
Members and FLSA Members were paid on a non-exempt basis (Covered
Position), at any time during the period from July 7, 2011 to
September 22, 2021 (Settled Period), or the estates of such
individuals."
For the purposes of settlement, the following collective action is
conditionally certified: "All persons who were employed by Olam
West Coast, Inc. (Defendant) at Defendant's Fresno, Firebaugh,
Hanford, Lemoore, Gilroy, and/or Williams locations in one or more
positions which were classified as non-exempt and/or hourly
non-exempt at any time during the period from July 7, 2011 to
September 22, 2021 (FLSA Members)."
Plaintiffs Thomas Beltran, Mario Martinez, Mario Claudia Obeso
Cota, Juan Rivera, and Alexander Solorio are appointed as the
representatives of the class action.
Edwin Aiwazian, Arby Aiwazian, and Joanna Ghosh of Lawyers for
Justice, PC are appointed as the class counsel.
Simpluris, Inc., is appointed as the settlement administrator.
The Rule 23 class action notice, FLSA collective action notice,
Rule 23 class action request for exclusion, and FLSA collective
action opt in forms are approved,
The matter is referred back to the magistrate judge to set a date
for a final-approval hearing and other scheduling matters.
A full-text copy of the Court's Sept. 22, 2021 Order is available
at https://tinyurl.com/ea46s3j7 from Leagle.com.
ORGAIN LLC: New York Court Dismisses Jones' 1st Amended Class Suit
------------------------------------------------------------------
In the case, TRACEY JONES, individually and on behalf of all others
similarly situated, Plaintiff v. ORGAIN, LLC, Defendant, Case No.
20 CV 8463 (VB) (S.D.N.Y.), Judge Vincent L. Briccetti of the U.S.
District Court for the Southern District of New York granted the
Defendant's motion to dismiss.
The Defendant moved to dismiss the Plaintiff's first amended
complaint ("FAC") pursuant to Rule 12(b)(6) of the Federal Rules of
Civil Procedure.
Background
Plaintiff Tracey Jones brings the putative class action against
Defendant Orgain, alleging claims for violation of Sections 349 and
350 of New York's General Business Law ("GBL"), negligent
misrepresentation, breach of express warranty, breach of implied
warranty of merchantability, violation of the Magnuson Moss
Warranty Act ("MMWA"), 15 U.S.C. Section 2301, fraud, and unjust
enrichment.
The Plaintiff alleges the Defendant "manufactures, distributes,
markets, labels and sells milk protein shakes," including a "Clean
Protein, Grass Fed Protein Shake, Vanilla Bean Flavor." She claims
that although the product is labeled as "Vanilla Bean Flavor,"
suggesting the product contains real vanilla, the product does not
disclose that it contains artificial vanilla flavoring. She further
alleges the product's ingredient list on the side of the packaging
lists neither vanilla, vanillin, nor "artificial" vanilla or
flavor. It does list as an ingredient "natural flavors." According
to the Plaintiff, this makes unclear the source of the vanilla
flavoring used in the product.
The Plaintiff alleges the product's labeling is misleading in two
respects. First, the Plaintiff alleges use of the phrase "Vanilla
Bean Flavor" on the packaging is misleading because laboratory
analysis of the product indicates it actually only contains "a
trace or de minimis amount of vanilla, boosted by synthetic
vanillin from wood pulp or petroleum derivatives." According to the
Plaintiff, the lack of qualifying terms regarding "Vanilla Bean
Flavor" -- such as if the packaging indicated the product contained
artificial vanilla flavor -- is likely to mislead reasonable
consumers.
Second, the Plaintiff alleges the "description of the Product as
'Clean'" is misleading, because consumers associate use of the word
"Clean" with products that "are free from artificial ingredients
and other ingredients consumers find undesirable," such as
"synthetic, artificial ingredients which can have a detrimental
effect on health." According to the Plaintiff, the product contains
the following artificial and synthetic ingredients: sodium
polyphosphate, tricalcium phosphate, magnesium phosphate, potassium
citrate, potassium chloride, cellulose, and gellan gum.
The Plaintiff claims she had expected a vanilla taste from the
product, she expected such vanilla taste would come exclusively or
predominantly from vanilla beans or vanilla extract, she did not
expect the product to taste of vanillin from artificial vanilla
flavors, and she expected the product would not contain "synthetic,
artificial ingredients which could pose risks to health." She
further claims she would have either declined to purchase the
product or would have paid less for it had the product not included
the allegedly deceptive labeling.
Now pending is the Defendant's motion to dismiss the FAC.
Discussion
I. New York General Business Law Claims
The Defendant argues the Plaintiff fails to state a claim under GBL
Sections 349 and 350 because she has not plausibly alleged a
reasonable consumer would find the product's labeling materially
deceptive or misleading.
Judge Briccetti agrees. First, he holds that the Plaintiff fails
plausibly to allege the product's labeling was deceptive. Nowhere
on the packaging does defendant promise that the product is
flavored with vanilla from an exclusive source or even mainly from
a certain source. The front label simply indicates the beverage is
vanilla flavored. The Plaintiff also presents no allegations that
would show her argument regarding the taste of vanilla is anything
but a subjective one, not shared by the reasonable consumer.
Accordingly, the Plaintiff fails plausibly to plead the packaging
is misleading or deceptive because the product does not taste like
vanilla.
The Plaintiff's argument that use of the word "Clean" on the front
of the packaging is misleading because the product contains
processed, synthetic, or artificial ingredients is also
unpersuasive, Judge Briccetti finds. He says, the Plaintiff fails
plausibly to allege the product packaging made any statement or
representation that it contained no processed, synthetic, or
artificial ingredients. Indeed, she cannot; although the back of
the packaging does state "No Artificial Sweeteners," nowhere on the
labeling does defendant make a sweeping representation that the
product contains no processed, synthetic, or artificial
ingredients. Considering the context of the packaging as a whole,
the Judge concludes the Plaintiff does not plausibly allege use of
the term "Clean" is likely to mislead a reasonable consumer acting
reasonably under the circumstances.
Accordingly, the Plaintiff's claims under GBL Sections 349 and 350
must be dismissed
II. Plaintiff's Other Claims
Because the Plaintiff has failed plausibly to allege her claims
under GBL Sections 349 and 350, Judge Briccetti holds that the
Plaintiff's claims for negligent misrepresentation, breach of
express warranty, breach of implied warranty of merchantability,
violation of the MMWA, fraud, and unjust enrichment also fail.
These causes of action are "all premised on the same contention:
Defendant's labeling of the Product is materially misleading."
Because, the Plaintiff fails plausibly to plead the product's
packaging is misleading or deceptive, the Plaintiff's other claims
must also be dismissed.
Conclusion
In light of the foregoing, Judge Briccetti granted the motion to
dismiss. The Clerk is instructed to terminate the motion and close
the case.
A full-text copy of the Court's Sept. 24, 2021 Opinion & Order is
available at https://tinyurl.com/4dcytxaw from Leagle.com.
PERI & SONS: Bid to Consolidate Guzman With PAGA Action Denied
--------------------------------------------------------------
In the case, LORENA SUAREZ GUZMAN, Plaintiff v. PERI & SONS FARMS
OF CALIFORNIA, LLC, et al., Defendants, Case No.
1:21-cv-00348-NONE-SKO (E.D. Cal.), Judge Dale A. Drozd of the U.S.
District Court for the Eastern District of California denied the
Defendants' renewed motion to consolidate the instant action with
the PAGA action.
The Plaintiff filed a class action complaint against Defendants
Peri & Sons and Roy Estrada in the Imperial County Superior Court,
alleging violations of applicable Industrial Welfare Commission
("IWC") Wage Orders, California Labor Code sections 201, 202, 226,
226.7, 510, 512, 1194, 1197, and the California Unfair Competition
Law, Cal. Bus. & Prof. Code Section 17200, et seq., on Aug. 31,
2020. The Defendants removed the action to the to the U.S. District
Court for the Southern District of California on Oct. 2, 2020,
asserting federal diversity jurisdiction and jurisdiction under the
Class Action Fairness Act ("CAFA"). The case was transferred to the
Court after the Defendants' motion to change venue was granted on
March 8, 2021.
The Plaintiff filed a representative action under the California
Labor Code Private Attorney Generals Act ("PAGA"), California Labor
Code Section 2698 et seq., against the Defendants in the Imperial
County Superior Court ("PAGA action") on Oct. 8, 2020. The
Defendants renewed their motion to consolidate the instant action
with the PAGA action on April 30, 2021. The matter was referred to
the assigned magistrate judge for the preparation of findings and
recommendations on May 4, 2021.
The magistrate judge issued findings and a recommendation on Aug.
2, 2021, recommending that the Defendant's motion to consolidate be
denied on the ground that the Court lacks jurisdiction over the
case sought to be consolidated with this one. The findings and
recommendation provided that any party could file objections
thereto within 21 days. To date, no objections have been filed.
In accordance with the provisions of 28 U.S.C. Section 636
(b)(1)(C), Judge Drozd has conducted a de novo review of the case.
Having carefully reviewed the entire file, he finds that the
findings and recommendation are supported by the record and proper
analysis.
Accordingly, Judge Drozd adopted in full the findings and
recommendation issued Aug. 2, 2021. He denied the motion to
consolidate.
A full-text copy of the Court's Sept. 22, 2021 Order is available
at https://tinyurl.com/yrdrkpy4 from Leagle.com.
POLARITYTE INC: Pomerantz Law Reminds of November 23 Deadline
-------------------------------------------------------------
Pomerantz LLP announces that a class action lawsuit has been filed
against PolarityTE, Inc. ("PolarityTE" or the "Company") (NASDAQ:
PTE) and certain of its officers. The class action, filed in the
United States District Court for the District of Utah, and docketed
under 21-cv-00561, is on behalf of a class consisting of all
persons and entities other than Defendants that purchased or
otherwise acquired PolarityTE securities between April 30, 2020 and
August 23, 2021, both dates inclusive (the "Class Period"), seeking
to recover damages caused by Defendants' violations of the federal
securities laws and to pursue remedies under Sections 10(b) and
20(a) of the Securities Exchange Act of 1934 (the "Exchange Act")
and Rule 10b-5 promulgated thereunder, against the Company and
certain of its top officials.
If you are a shareholder who purchased PolarityTE securities during
the Class Period, you have until November 23, 2021 to ask the Court
to appoint you as Lead Plaintiff for the class. A copy of the
Complaint can be obtained at www.pomerantzlaw.com. To discuss this
action, contact Robert S. Willoughby at newaction@pomlaw.com or
888.476.6529 (or 888.4-POMLAW), toll-free, Ext. 7980. Those who
inquire by e-mail are encouraged to include their mailing address,
telephone number, and the number of shares purchased.
PolarityTE, a biotechnology company, develops and commercializes a
range of regenerative tissue products and biomaterials for the
fields of medicine, biomedical engineering, and material sciences
in the United States. The Company operates through two segments,
Regenerative Medicine Products and Contract Services. It offers
SkinTE, a tissue product used to repair, reconstruct, replace, and
supplement skin in patients for the treatment of acute or chronic
wounds, burns, surgical reconstruction events, scar revision, or
removal of dysfunctional skin grafts, as well as contract research
services.
On April 30, 2020, PolarityTE issued a press release announcing
that the Company had decided to pursue a plan to submit an
Investigational New Drug Application ("IND") and thereafter a
Biologics License Application to the U.S. Food and Drug
Administration ("FDA") for SkinTE.
On July 23, 2021, PolarityTE submitted an IND to the FDA seeking
authorization to commence a clinical trial to evaluate SkinTE for
the proposed indication of treatment of chronic cutaneous ulcers
(the "SkinTE IND").
The complaint alleges that, throughout the Class Period, Defendants
made materially false and misleading statements regarding the
Company's business, operational and compliance policies.
Specifically, Defendants made false and/or misleading statements
and/or failed to disclose that: (i) the SkinTE IND was deficient
with respect to certain Chemistry, Manufacturing, and Control
items; (ii) as a result, it was unlikely that the FDA would approve
the SkinTE IND in its current form; (iii) accordingly, the Company
had materially overstated the likelihood that the SkinTE IND would
obtain FDA approval; and (iv) as a result, the Company's public
statements were materially false and misleading at all relevant
times.
On August 24, 2021, PolarityTE issued a press release "provid[ing]
an update regarding correspondence from the U.S. Food and Drug
Administration (FDA) related to its Investigational New Drug
Application (IND) for SkinTE(R) with a proposed indication for
chronic cutaneous ulcers, which was filed on July 23, 2021. The FDA
provided feedback that certain Chemistry, Manufacturing, and
Control items need to be addressed prior to proceeding with a
pivotal study. As a result, the study proposed in the IND has been
placed on clinical hold. In accordance with standard practice and
regulations, the FDA has advised that it will issue a clinical hold
letter providing details on the basis for the hold to the Company
by September 21, 2021."
On this news, PolarityTE's stock price fell $0.08 per share, or
9.52%, to close at $0.76 per share on August 24, 2021.
The Pomerantz Firm, with offices in New York, Chicago, Los Angeles,
and Paris is acknowledged as one of the premier firms in the areas
of corporate, securities, and antitrust class litigation. Founded
by the late Abraham L. Pomerantz, known as the dean of the class
action bar, the Pomerantz Firm pioneered the field of securities
class actions. Today, more than 80 years later, the Pomerantz Firm
continues in the tradition he established, fighting for the rights
of the victims of securities fraud, breaches of fiduciary duty, and
corporate misconduct. The Firm has recovered numerous
multimillion-dollar damages awards on behalf of class members. See
www.pomerantzlaw.com[GN]
PORTFOLIO RECOVERY: New Jersey Court Narrows Claims in North Suit
-----------------------------------------------------------------
In the case, TODD M. NORTH, individually and on behalf of all
others similarly situated, Plaintiff v. PORTFOLIO RECOVERY
ASSOCIATES, LLC; and JOHN DOES 1 to 10, Defendants, Case No.
2:20-cv-20190 (BRM) (JSA) (D.N.J.), Judge Brian R. Martinotti of
the U.S. District Court for the District of New Jersey granted in
part and denied in part the Defendant's Motion for Judgment on the
Pleadings.
Before the Court is Defendant Portfolio Recovery Associates, LLC's
("Defendant") Motion for Judgment on the Pleadings pursuant to
Federal Rule of Civil Procedure 12(c). Plaintiff Todd M. North
("Plaintiff") opposes the Motion.
Background
The case arises from the Defendant's attempts to collect a debt
owed by the Plaintiff. On Aug. 6, 2019, the Plaintiff filed a
putative class-action Complaint in the Superior Court of New
Jersey, Law Division, Essex County asserting three claims against
the Defendant for violations of the New Jersey Consumer Finance
Licensing Act, N.J. Stat. Ann. Section 17:11C, et seq., the New
Jersey Consumer Fraud Act, N.J. Stat. Ann. Section 56:8, et seq.
("CFA"), and unjust enrichment.
The Plaintiff defines the class and subclass as:
a. Class: All natural persons with addresses in the State of
New Jersey who are listed as the borrower or purchaser in an
account assigned to Portfolio Recovery Associates, LLC, or any of
its sister or parent entities, at any time prior to the date the
respective entity obtained a license to engage in business as a
sales finance company or a consumer lender pursuant to the CFLA, at
N.J.S.A. 17:11C-3.
b. Subclass: All members of the Class who paid any money or
from whom Portfolio Recovery Associates, LLC, or any of its sister
or parent entities, directly or indirectly through its agents,
collected any money on the assigned account.
The Plaintiff alleges that, "sometime prior to the date" the
Complaint was filed, the "Defendant allegedly purchased and
attempted to take assignment of a WebBank/Fingerhut account that
had been extended to the Plaintiff." The WebBank/Fingerhut Account
was used for personal, family, or household purposes. Thereafter,
the Plaintiff defaulted on the WebBank/Fingerhut Account and
Defendant purchased a pool of defaulted consumer accounts,
including the WebBank/Fingerhut Account.
On March 30, 2015, the WebBank/Fingerhut Account was placed with
the Defendant. The Defendant commenced collection activities
against the Plaintiff, when it was not properly licensed to do so,
by causing the Plaintiff to make payments towards the
WebBank/Fingerhut Account on May 18, 2015, June 16, 2015, and July
16, 2015.
To date, and upon information and belief, the Plaintiff alleges
approximately $391 was wrongfully collected by the Defendant.
According to the Plaintiff, "as a result of the Defendant's
unlawful actions, the Plaintiff suffered an ascertainable loss,
specifically the amount the Plaintiff paid towards the
WebBank/Fingerhut Account." "During the six years prior to the date
when the Plaintiff's Complaint was filed, numerous New Jersey
consumers made payments to the Defendant for accounts assigned to
it when it was not properly licensed."
On Sept. 13, 2019, the Defendant first removed the action to
federal court on grounds of diversity jurisdiction pursuant to 28
U.S.C. Section 1332, which provides federal courts with
jurisdiction over "all civil actions where the matter in
controversy exceeds the sum or value of $75,000 and is between
citizens of different States." On Oct. 2, 2019, the Plaintiff moved
to remand the action to state court. On May 6, 2020, the Court
granted the Plaintiff's motion to remand, citing the amount in
controversy requirement had not been satisfied.
On Dec. 22, 2020, the Defendant, for the second time, removed this
action to federal court, alleging the Court has jurisdiction
pursuant to the Class Action Fairness Act of 2005, 28 U.S.C.
Section 1332(d)(11) ("CAFA") and arguing, inter alia, (1) CAFA's
jurisdictional requirements have been satisfied; and (2) removal is
timely. On Jan. 21, 2021, the Plaintiff filed a motion to remand
arguing, inter alia, (1) the Defendant's notice of removal is
untimely as it was filed more than 30 days after it was aware the
Court had CAFA jurisdiction; and (2) the Court lacks jurisdiction
over this matter pursuant to the Rooker-Feldman doctrine.
On Feb. 16, 2021, the Defendant filed an opposition to the motion
to remand. On Feb. 22, 2021, the Plaintiff filed a reply in support
of the motion to remand. On Feb. 26, 2021, the Defendant filed a
motion for leave to file a sur-reply in opposition to the motion to
remand, which, on March 30, 2021, the Court granted.
On April 9, 2021, the Defendant filed a Motion for Judgment on the
Pleadings arguing, inter alia, (1) the Plaintiff's Complaint fails
to state any viable cause of action and (2) any cause of action
against the Defendant is barred by the entire controversy doctrine
and/or res judicata.
On May 3, 2021, the Plaintiff filed an Opposition arguing, inter
alia, (1) the Plaintiff stated viable claims against the Defendant;
and (2) the entire controversy doctrine and/or res judicata are not
applicable. On May 10, 2021, the Defendant filed a Reply. On Aug.
30, 2021, the Court found the Defendant's removal timely and denied
the Plaintiff's motion to remand the action to the Superior Court
of New Jersey. The Defendant's Motion for Judgment on the Pleadings
is now properly before the Court.
Discussion
The Defendant argues the Plaintiff's Complaint fails to allege any
viable causes of action against it, and therefore, the Complaint
should be dismissed with prejudice. Specifically, the Defendant
argues: (1) the Complaint fails to state a claim for declaratory
judgment or injunctive relief because the Plaintiff does not have a
private cause of action to enforce the Licensing Act; (2) the CFA
does not apply to the Defendant; and (3) no viable unjust
enrichment claim exists against the Defendant. Finally, the
Defendant argues any cause of action against the Defendant is
barred by the entire controversy doctrine and/or res judicata.
A. The Licensing Act
The Defendant contends the Plaintiff's claim under the Licensing
Act must be dismissed because, as the Plaintiff does not appear to
dispute, courts in this district have held that there is no private
right of action for violations of the Licensing Act. Further, the
Defendant contends the Plaintiff cannot seek to "circumvent the
lack of a private right of action to enforce the Licensing Act by
seeking declaratory relief under the Uniform Declaratory Judgments
Act, N.J. Stat. Ann. 2A:16-62.
Judge Martinotti agrees. To be sure, because the Licensing Act does
not contain a private right of action, he says, the Plaintiff
cannot seek to enforce the Licensing Act directly or indirectly
through the Uniform Declaratory Judgments Act. The Judge sees no
reason to depart from those decisions, and the Plaintiff's
Licensing Act claim is dismissed with prejudice. Accordingly, the
Defendant's Motion for Judgment on the Pleadings as to the
Licensing Act claim is granted with prejudice.
B. The CFA
The Defendant maintains the Plaintiff has failed to state a claim
under the CFA. Specifically, Defendant contends the CFA is
inapplicable to his claim because the CFA does not cover the debt
collection conduct of a defendant debt buyer, such as the
Defendant, which purchases a consumer's defaulted and
non-performing debt obligation from a third-party, because the debt
buyer (i.e., the Defendant) did not itself sell merchandise or real
estate to the plaintiff-consumer nor is it involved with a
continuing performance of the debt. Further, the Defendant claims
the Plaintiff failed to meet the heightened pleading standard set
by Fed. R. Civ. P. 9(b) applicable to fraud claims.
The Plaintiff opposes arguing, inter alia, "since the CFA applies
to a sale of credit, an assignee of the credit contract is also
subject to the CFA." Therefore, according to the Plaintiff, the CFA
is applicable to a buyer of debt, like the Defendant. He also
contends the Complaint advises the Defendant of the basis for the
CFA claim with "sufficiently particularity required by Rule 9(b)."
Taken together and accepting the Plaintiff's pleadings as true as
is required at this stage of the litigation, Judge Martinotti finds
that the Plaintiff has asserted allegations that may establish a
claim for CFA liability based on the Plaintiff's allegation
Defendant engaged in "unconscionable commercial practices." Indeed,
the New Jersey Supreme Court has stated that "unconscionability is
an 'amorphous concept obviously designed to establish a broad
business ethic.'" Where an alleged CFA violation consists of an
"unconscionable commercial practice," the standard for
unconscionability is a "lack of good faith, honesty in fact and
observance of fair dealing."
Turning to whether the Plaintiff's allegations meet Rule 9(b)'s
particularity standard, Judge Martinotti finds that the Plaintiff
has adequately plead fraud claims against the Defendant by alleging
that, among other things, after the WebBank/Fingerhut Account was
placed with the Defendant on March 30, 2015, the Defendant
wrongfully caused the Plaintiff to make payments toward the
WebBank/Fingerhut Account on May 18, 2015, June 16, 2015, and July
16, 2015, even though the Defendant was not properly authorized to
collect on the debt. The Judge finds the Plaintiff has included the
factual basis for the allegations of fraud with sufficient
specificity to put the Defendant on notice of the "precise
misconduct with which it is charged."
Accordingly, the Defendant's Motion for Judgment on the Pleadings
as to the CFA claim is denied without prejudice.
C. Unjust Enrichment
The Defendant argues the Plaintiff's unjust enrichment claim fails
for a variety of reasons, including: (1) where the underlying tort
claims are dismissed, the unjust enrichment claim must be dismissed
because "New Jersey does not recognize unjust enrichment as a
solely independent[] cause of action"; (2) "the existence of an
express contract on the same subject matter wholly precludes the
awarding of relief under an alternative theory of unjust
enrichment"; and (3) the Plaintiff cannot plead the required
elements of unjust enrichment.
The Plaintiff opposes, arguing, among other things, there are
"factual issues" as to whether "(i) if it has any rights to any
contract with the Plaintiff and (ii) even if there is an assignment
whether it is legally enforceable since [Defendant] was unlicensed
when it was allegedly made."
Judge Martinotti agrees with the Defendant that the claim should be
dismissed for failure to state a claim but not for the precise
reason the Defendant argued. He holds that the Complaint makes
clear the Plaintiff did not expect anything in return for the $391.
Therefore, the Plaintiff insufficiently pleads a claim for unjust
enrichment under New Jersey law. Accordingly, the Defendant's
Motion for Judgment on the Pleadings as to the unjust enrichment
claim is granted without prejudice.
D. Entire Controversy doctrine and/or res judicata
Judge Martinotti now turns to the Defendant's contention the Court
lacks jurisdiction over this matter pursuant to the entire
controversy doctrine and/or res judicata. Specifically, according
to the Defendant, both the entire controversy doctrine and res
judicata "require dismissal of the claims in the Plaintiff's
Complaint arising out of the Defendant's collection actions in a
state court." The Plaintiff opposes arguing, among other things,
"without a prior action identified neither defense of the entire
controversy doctrine or res judicata can be established" to bar the
Plaintiff's claims.
Judge Martinotti finds the entire controversy doctrine is
inapplicable in the case because there is no evidence of a final
judgment entered in state court. In fact, he says, the Defendant
contends "the Complaint is devoid of any allegation that it ever
filed a civil collection complaint against the Plaintiff." The
Third Circuit has held that, as a species of res judicata, the
entire controversy doctrine is inapplicable prior to the entry of a
final judgment, citing Rycoline, 109 F.3d at 889; see Youssef v.
Department of Health & Senior Svcs., 423 F. App'x 221, 223 (3d Cir.
2011). If no final judgment has been entered in the state court,
then there is no prior judgment. Therefore, because there is no
evidence of a prior final judgment on the merits, and the Defendant
is unable to point to one, Judge Martinotti must deny the
application of the entire controversy doctrine and res judicata.
Conclusion
For the reasons he set forth, Judge Martinotti granted in part and
denied in part the Defendant's Motion for Judgment on the
Pleadings. An appropriate order follows.
A full-text copy of the Court's Sept. 24, 2021 Opinion is available
at https://tinyurl.com/2hkvc63s from Leagle.com.
S.C. JOHNSON: Rivera Class Suit Dismissed With Leave to Amend
-------------------------------------------------------------
In the case, CARMEN RIVERA, LETISHA WILLIAMS, LISA MACK, ROSEMARY
VAVITSAS, Plaintiffs v. S.C. JOHNSON & SON, INC., Defendant, Case
No. 20-CV-3588 (RA) (S.D.N.Y.), Judge Ronnie Abrams of the U.S.
District Court for the Southern District of New York granted the
Defendant's motion to dismiss.
Background
The Plaintiffs Carmen Rivera bring the putative class action
against Defendant S.C. Johnson asserting violations of the New York
General Business Law's prohibition on deceptive marketing. The
Plaintiffs allege that S.C. Johnson's labeling of its Windex
cleaning products as "Non-Toxic" is misleading to consumers because
those products contain ingredients that may be harmful to humans,
pets, or the environment.
The Plaintiffs are each citizens of New York who purchased one of
the following cleaning products in that state in 2019 or 2020:
Windex Original Non-Toxic Formula, Windex Vinegar Non-Toxic
Formula, and Windex Ammonia-Free Non-Toxic Formula. Defendant S.C
Johnson is a Wisconsin corporation that "manufactures, distributes,
markets, labels, and sells cleaning solutions under its popular
'Windex' brand."
The Company prominently labels a number of its Windex products as
consisting of a "Non-Toxic Formula," in particular the following
four: "Original Non-Toxic Formula, Vinegar Non-Toxic Formula,
Ammonia-Free Non-Toxic Formula and Multi-Surface Non-Toxic
Formula." In each case, the label at the top of the bottle reads
"NON-TOXIC FORMULA" in capital letters.
The Plaintiffs allege that this labeling scheme is part of the
Company's efforts to "market and sell the Products as
environmentally-friendly alternatives to traditional window and
glass cleaning products," and that they purchased the Products "in
reliance on the representations that they were non-toxic," "because
they wanted to avoid harm caused by harsh chemicals." The
Plaintiffs would buy the Products again "if assured they did not
contain components which were toxic and had harsh physical and
environmental effects."
According to the Plaintiffs, "the Products' 'non-toxic' claims
signify to reasonable consumers that the Products will not be
harmful to people (including small children), common pets or the
environment." The National Advertising Division of the Council of
Better Business Bureaus Inc. has found, based on an investigation
into the Products' use of the phrase "non-toxic," that "the term
'non-toxic' as used by the Products signifies to reasonable
consumers" that those Products will not cause "harm," meaning
"various types of temporary physical illness, such as vomiting,
rash, and gastrointestinal upset."
Based on this understanding of "toxic," the Plaintiffs allege that
the Products contain several ingredients that are inconsistent with
"the Products' claims of being 'non-toxic.'" These allegedly
harmful ingredients include "acetic acid, alkylbenzene sulfonate,
ammonium hydroxide, benzyl benzoate, fragrance components,
isopropanolamine, lactic acid, lauramine oxide, propylene glycol,
sodium hydroxide, sodium petroleum sulfonate, sodium xylene
sulfronate, [and] 2-(hexyloxy)-ethanol." Each of the four Products
contains one or more of these ingredients in different
combinations.
The Complaint alleges that these ingredients are capable of causing
certain harmful effects at their "in-use concentrations" in the
Products. As for the remaining ingredients, they allege that each,
at its in-use concentration, causes some form of skin irritation
such as erythema, desquamation, drying of the skin, or fissuring.
The Plaintiffs further allege that S.C. Johnson "has sold more of
the Products and at higher prices per unit than it would have" had
it not falsely represented its Products as "non-toxic," but that
their value in fact was "materially less" than that represented by
the Company.According to the Complaint, the "false and misleading
label" allows S.C. Johnson to sell the "Products at a premium
price, approximately $3.17 for containers of 23 OZ, compared to
other similar products represented in a non-misleading way." Had
they "known the truth," the Plaintiffs allege, "they would not have
bought the Products or would have paid less for them."
Former Plaintiff Katherine Shimanovsky initiated this action on
behalf of herself and all others similarly situated on May 7, 2020.
The Company moved to dismiss on Sept. 8, 2020, principally arguing
that Ms. Shimanovsky lacked standing to sue over products that she
never purchased. The Plaintiffs responded by filing the operative
Complaint, which no longer lists Ms. Shimanovsky as a plaintiff.
The Plaintiffs now seek to represent a class consisting of "all
purchasers of the Products in New York from Oct. 16, 2014 to time
of judgment. They seek class-wide injunctive relief based on Rule
23(b)(2) in addition to monetary relief based on Rule 23(b)(3).
The Complaint asserts three causes of action: 1) violation of New
York General Business Law ("GBL") Section 349; 2) violation of New
York GBL Section 350; and 3) unjust enrichment.
S.C. Johnson subsequently filed the instant motion to dismiss
pursuant to Fed. R. Civ. P. 12(b)(6), along with a request for
judicial notice in support of that motion. The request for judicial
notice encompasses the Company's publicly available ingredient
lists for each of the four Products, the Merriam-Webster.com entry
for "toxic," and the "Green Guides Statement of Basis and Purpose"
published by the Federal Trade Commission ("FTC").
Discussion
I. Whether Plaintiffs State a Claim Under the New York General
Business Law
The Plaintiffs' first two causes of action arise under Sections 349
and 350 of the New York GBL. Section 349 prohibits "deceptive acts
or practices in the conduct of any business, trade or commerce,"
whereas Section 350 prohibits "false advertising in the conduct of
any business, trade or commerce." To assert a claim under either
section, "a plaintiff must allege that a defendant has engaged in
(1) consumer-oriented conduct that is (2) materially misleading and
that (3) plaintiff suffered injury as a result of the allegedly
deceptive act or practice."
S.C. Johnson argues that the Complaint fails to satisfy the second
and third elements of a GBL claim because the "Non-Toxic" labels
are not misleading as a matter of law and because the Plaintiffs
have failed to properly allege any cognizable injury.
Judge Abrams' view, although the Plaintiffs have plausibly alleged
that a reasonable consumer might share their understanding of the
meaning of "non-toxic," they have not adequately alleged that the
product is actually toxic, even according to their own definition.
The Judge is not persuaded that the Plaintiffs' allegations as to
how a reasonable consumer would interpret "Non-Toxic" are
implausible, let alone contrary to the dictionary definition. The
Plaintiffs' allegations of how a reasonable consumer would
interpret the challenged labels are not necessarily inconsistent
with the dictionary definition of "toxic." The independent
substantiation of a reasonable consumer's understanding of
"non-toxic" helps nudge the claims "across the line from
conceivable to plausible."
The Plaintiffs' claims still fail, however, because the Complaint
does not adequately allege that the Products are toxic, even
according to the Plaintiffs' own definition, Judge Abrams opines.
The question raised by the motion is whether the Plaintiffs have
plausibly alleged that the Products are actually, in their current
form, capable of causing harm.
In Judge Abrams' view, without more factual content about the
makeup of the Products or any evidence that these Products have
caused harm in the real world, the Complaint pleads facts that are
"merely consistent with a defendant's liability," thereby "stopping
short of the line between possibility and plausibility of
entitlement to relief." First, even if the precise specifications
of the Products are in the Company's exclusive control, information
about the effect of those ingredients in their current
concentrations is not. Second, the Plaintiffs might have attempted
to analyze the Products, which are widely available. Finally, the
Plaintiffs could have consulted with experts in the field who might
have been able to provide even minimal support for their bald
assertion that "the ingredients' likely concentrations or
percentages by weight" are sufficient to cause harm.
For these reasons, Judge Abrams concludes that the Plaintiffs have
not met that obligation, and their GBL claims are accordingly
dismissed without prejudice. The Plaintiffs will be granted leave
to replead, should they have a good-faith basis to correct the
deficiencies identified. To state a claim, an amended complaint
will have to do some combination of the following: Substantiate the
Plaintiffs' claims that the in-use concentration of the potentially
harmful ingredients in the Products are sufficient to cause harm,
demonstrate that the Products have actually caused some of the
harms Plaintiffs say they can cause, and/or significantly
strengthen the Plaintiffs' allegations that the information
necessary to state a claim is exclusively in the Defendant's
control.
B. Allegations of Injury
Although the analysis could end there, Judge Abrams proceeds to
address the Company's remaining arguments for dismissal, as they
may be relevant in the event that the Plaintiffs choose to amend
the Complaint. The Company contends that the Plaintiffs have failed
to plausibly allege an injury cognizable under GBL Sections 349 and
350.
Although the allegations would benefit from more factual support --
as to the amount of premium that a Non-Toxic cleaner may enjoy as
compared to a similar cleaning product that makes no such
representation, for example -- Judge Abrams finds that they suffice
to plausibly allege injury at the pleading stage. These allegations
are comparable to what numerous other judges in this district have
deemed adequate to survive a motion to dismiss.
Finding the Complaint's allegations sufficient to plead injury
under the GBL, Judge Abrams declines to dismiss the Plaintiffs'
claims on that basis.
III. Issues of Article III Standing
The Company also argues that the "Plaintiffs lack standing to bring
this action because they sue over a Product they never purchased
and allege far too speculative an injury to seek injunctive
relief." Judge Abrams notes as an initial matter that the Complaint
does contain allegations that the Plaintiffs purchased three of the
four products, and that the Plaintiffs seek monetary as well as
injunctive relief. As a result, even if the Judge were to accept
both of the Company's arguments about Article III standing, that
would not be a sufficient basis to dismiss the entire action
pursuant to Fed. R. Civ. P. 12(b)(1).
Judge Abrams holds that because the Plaintiffs lack standing to
pursue injunctive relief, on their own behalf or on behalf of a
class, he dismisses all claims for injunctive relief pursuant to
Rule 12(b)(1) with prejudice. He cannot conceive of a scenario in
which these Plaintiffs would again be deceived by the Products'
allegedly misleading representations, let alone what kind of
injunctive relief would prevent such deception.
Judge Abrams also holds that the fact that the Plaintiffs did not
purchase Windex Multi-Surface Cleaner does not furnish a basis to
dismiss the claims involving that product.
Conclusion
For the foregoing reasons, Judge Abrams granted S.C. Johnson's
motion to dismiss. The Complaint is dismissed without prejudice,
except with respect to the Plaintiffs' prayers for injunctive
relief, which are dismissed with prejudice. The Plaintiffs may file
an amended complaint that corrects the deficiencies identified
above, should they have a good-faith basis to do so. Any amended
complaint is due within three weeks of the date of the Order,
although to the extent the Plaintiffs need a brief extension of
time to investigate, they may request it.
The post-discovery conference previously scheduled for Oct. 1, 2021
is adjourned sine die.
The Clerk of Court is respectfully directed to amend the caption,
and to terminate the motion pending at Dkt. 27.
A full-text copy of the Court's Sept. 24, 2021 Opinion & Order is
available at https://tinyurl.com/4v74j3xr from Leagle.com.
SABOR TROPICAL: Ramirez Sues Over Delivery Workers' Unpaid Wages
----------------------------------------------------------------
ENRIQUE HERNANDEZ RAMIREZ, individually and on behalf of others
similarly situated, Plaintiff v. SABOR TROPICAL RESTAURANT CORP.
(D/B/A SABOR TROPICAL), DIANELBA EUSTATE SANTOS, and JOSE EUSTATE
SANTOS, Defendants, Case No. 1:21-cv-08019 (S.D.N.Y., Sept. 27,
2021) arises from the Defendants' failure to pay minimum and
overtime wages, failure to provide a written wage notice, failure
to furnish accurate wage statements, failure to reimburse
business-related expenses, and failure to pay on a regular weekly
basis, all in violation of the Fair Labor Standards Act and the New
York Labor Law.
The Defendants own, operate, or control a Dominican restaurant,
located in New York under the name "Sabor Tropical." Plaintiff
Hernandez was employed as a delivery worker at the restaurant from
approximately September 2020 until September 4, 2021. [BN]
The Plaintiff is represented by:
Michael Faillace, Esq.
MICHAEL FAILLACE & ASSOCIATES, P.C.
60 East 42nd Street, Suite 4510
New York, NY 10165
Telephone: (212) 317-1200
Facsimile: (212) 317-1620
SOUTH CENTRAL: Hearing on Class Action Suit for Students Delayed
----------------------------------------------------------------
Greg Sapp at thexradio.com reports that the State Department of
Public Health has changed language in revised health guidelines for
schools which has caused lawsuits against the South Central and
Odin School Districts that were scheduled for hearings to be
delayed.
WJBD Radio in Salem reports the attorney for students in both
school districts seeking class action status on behalf of all
students not to wear masks unless they are quarantined by public
health officials asked for a continuance to refile the lawsuits as
a result. Thomas DeVore had been successful in getting the mask ban
lifted for students in the Carlyle School District and individual
students in several other school districts before State Public
Health Officials revised the guidance in their emergency public
health order.
The attorney for the Odin School District, Christian Miller, sited
the revised guidance in his answer to DeVore's lawsuit. Miller says
the new guidance requires all teachers, staff, and visitors to
pre-school to 12 grade facilities to wear a mask while indoors
regardless of vaccination status. As a result, Miller says the
temporary restraining order lacks legal support under the Public
Health Act.
Before the change, DeVore argued successfully that the masks are
designed to prevent the spread of illness and there was no health
regulation to require healthy students to wear masks. The South
Central Lawsuit was brought by Elaine Owens as the guardian of two
students and the Odin lawsuit by Ashley Holland as a parent of a
student. [GN]
ST. ELIZABETH: Obtains Favorable Ruling in Vaccine Rule Lawsuit
---------------------------------------------------------------
Kake.com reports that a federal judge has ruled that a Ohio
healthcare provider could require its employees get vaccinated
against COVID-19 or risk losing their job. It is considered to be
the first ruling of its kind for a private employer in America.
The employees of St. Elizabeth Healthcare were unable to show the
judge that their individual liberties were being violated by the
vaccine requirement of the hospital operator, which has the right
to set the employment terms, said U.S. District Judge David Bunning
in Covington, Kentucky.
The employees need to be vaccinated by Oct. 1. The widespread
availability of vaccines in the United States helped to reduce
infections in the spring and early summer but the Delta variant has
led to a new spike in cases and hospitalizations.
The person who represented the employees, Alan Statman, said that
the group is looking at its next steps.
Bunning's ruling is the first involving a request for an injunction
against a private employer's COVID-19 vaccine mandate, said Mark
Guilfoyle, a lawyer who represented St. Elizabeth.
Also on Sept. 24, the Biden Administration spelled out plans to
require federal contractors to get vaccinated, which will apply to
tens of millions of Americans.
Employer vaccine requirements have spawned numerous lawsuits,
although most are still in the initial stages and the ones that
have proceeded to a judge have been tossed. A federal judge in June
dismissed a lawsuit against Houston Methodist Hospital under Texas
wrongful termination law.
The class action on behalf of St. Elizabeth employees was based in
part worries that the vaccine wasn't as effective as it could be,
among other claims.
Bunning said that their suspicions couldn't override the law.
"If an employee believes his or her individual liberties are more
important than legally permissible conditions on his or her
employment, that employee can and should choose to exercise another
individual liberty, no less significant -- the right to seek other
employment," wrote Bunning. [GN]
STATE FARM: New Jersey Court Dismisses Fox's Amended Class Suit
---------------------------------------------------------------
In the case, KEVIN FOX, individually and on behalf of a class of
similarly situated persons, Plaintiff v. STATE FARM FIRE AND
CASUALTY COMPANY, Defendant, Case No. 2:20-cv-18131 (BRM) (ESK)
(D.N.J.), Judge Brian R. Martinotti of the U.S. District Court for
the District of New Jersey granted State Farm's Motion to Dismiss
Plaintiff Fox's Amended Complaint.
Background
The action concerns a dispute over insurance coverage. At all times
relevant to the Amended Complaint, the Plaintiff was the owner of
real property located at 16 Falcon Run, Kinnelon, New Jersey 07405.
The Property was insured under a policy issued by State Farm.
On April 13, 2020, the Property suffered damage from a covered
event under the Policy. The Plaintiff reported the occurrence to
State Farm, which opened a claim file, but he was not satisfied
with State Farm's handling of the claim and hired North Jersey
Public Adjusters Inc. to adjust the claim on his behalf.
On May 6, 2020, North Jersey emailed a construction cost estimate
to State Farm with a replacement cost of $145,816.88. On July 8,
2020, State Farm responded to the estimate and stated the
Plaintiff's estimate from North Jersey included items that exceeded
the scope of repairs pertaining to the loss, but did not specify
which items were considered beyond the scope of repairs. In its
response, State Farm included its own estimate, which indicated a
replacement cost for the Property of $28,536.76.
The Plaintiff claims State Farm's estimate used "a format and
methodology that significantly differed from the North Jersey
estimate, such that it was, as a practical matter, virtually
impossible for the Plaintiff or his adjuster to determine how and
to what extent State Farm was claiming a difference in the 'scope'
of the necessary repairs."
On July 17, 2020, North Jersey sent State Farm an email with an
Agreement for Submission to Appraisers attached. On July 20, 2020,
State Farm sent North Jersey a letter refusing to submit to an
appraisal of the claim. On July 21, 2020, North Jersey sent State
Farm estimates from Plaintiff's contractor, American Eagle Ext.
LLC, totaling about $88,000. The American Eagle invoices
represented the Property's repair using construction methods
inferior to what the Plaintiff was entitled "in an effort to
compromise his demand" and resolve the dispute over the amount of
loss.
On July 29, 2020, North Jersey sent State Farm an email attempting
to comply with State Farm's demand for a detailed itemization, even
though, according to the Plaintiff, State Farm had no basis for
making such a demand which placed unauthorized preconditions on
Plaintiff's right to appraisal. On Aug. 7, 2020, State Farm again
refused to submit to appraisal because appraisal "does not apply to
disputes as to the extent of damage, the scope of work required,
the cause of damage, or other coverage questions." That is, State
Farm refused to comply with the Plaintiff's demand for appraisal
because his contractor proposed to fix the Property's damaged roof
by replacing all of it, whereas State Farm's contractor would fix
the roof by only replacing the damaged portions.
The Plaintiff and State Farm agreed the Property's roof had been
damaged, was in need of repair, the occurrence resulting in the
damaged roof was a covered event, and the repair of the roof was a
covered item under the Policy. They disagreed over what method to
use to repair the roof, which resulted in a failure to agree on the
cost of the job.
The Plaintiff further asserts State Farm mischaracterized the
dispute as relating to the extent of coverage and scope of work
required to repair the damage to the Property and contends the
actual dispute stems from a failure to agree on the value of the
loss. As a result, the Plaintiff alleges State Farm "has deviated
from the statutory appraisal requirement." Upon information and
belief, the Plaintiff alleges State Farm has engaged in the above
conduct "with such frequency as to indicate a general business
practice," which violates N.J. Stat. Ann. Section 17:29-4.
On Nov. 3, 2020, the Plaintiff filed a Complaint in the Superior
Court of New Jersey, Law Division, Morris County. State Farm
received notice of the Plaintiff's Complaint on Nov. 4, 2020 and
removed the action to the Court on Dec. 4, 2020. On Dec. 28, 2020,
State Farm filed a motion to dismiss the Plaintiff's Complaint
pursuant to Federal Rule of Civil Procedure 12(b)(6). On Feb. 11,
2021, the Court administratively terminated State Farm's initial
Motion to Dismiss and directed the Plaintiff to address the
deficiencies noted in State Farm's Motion and Reply in an amended
complaint.
On March 5, 2021, the Plaintiff filed the Amended Complaint
currently before the Court alleging Declaratory
Judgment/Reformation (Count One), Breach of Contract (Count Two),
Breach of Covenants (Count Three), and Consumer Fraud (Count Four)
against State Farm. The Plaintiff's Amended Complaint also asserts
class action allegations for Declaratory Judgment/Reformation on
behalf of Class A1 (Count Five), Breach of Contract on behalf of
Subclass A-12 (Count Six), Breach of Contract on behalf of Subclass
A-2 (Count Seven), Breach of Covenants on behalf of Subclass A-2
(Count Eight), and Consumer Fraud on behalf of Subclass A-2 (Count
Nine).
On April 2, 2021, State Farm filed a Motion to Dismiss Plaintiff's
Amended Complaint pursuant to Federal Rule of Civil Procedure
12(b)(6). On April 5, 2021, the Plaintiff opposed the Motion, and
on April 26, 2021, State Farm replied.
Discussion
State Farm argues the Plaintiff's individual claims under Counts
One, Two, Three, and Four each fail to state a claim, which renders
Plaintiff's class action claims subject to dismissal under Federal
Rule of Civil Procedure 12(b)(6). The Plaintiff argues each of his
individual claims properly state a claim.
A. Count One: Declaratory Judgment or Reformation of the Policy
The Plaintiff alleges he is entitled to reformation of the Policy's
appraisal provision because "the belief of the parties that all of
the provisions were in compliance with New Jersey law constituted a
mutual mistake of fact." He asserts State Farm relied on the
approval of the Commissioner of the New Jersey Department of
Banking and Insurance ("DOBI") that the provisions of his policy
complied with New Jersey, but the Policy's provisions did not
comply with N.J. Stat. Ann. Section 17:36-5.20 because the Policy
did not provide the Plaintiff "with substantially equivalent or
more favorable terms than those contained in N.J. Stat. Ann.
Section 17:36-5.20."
Accordingly, the Plaintiff asks the Court to declare the appraisal
provision contained in HW-2130 of the Policy "does not provide
substantially equivalent or more favorable terms than those
contained in N.J. Stat. Ann. Section 17:36-5.20" and reform the
Policy's language by replacing its appraisal provision with the
standard appraisal language found in N.J. Stat. Ann. Section
17:36-5.20.
State Farm contends the Plaintiff fails to state a claim under
Count One because (1) he cannot challenge the DOBI Commissioner's
approval of Form HW-2130 and (2) he has not alleged a mutual
mistake of fact. The Plaintiff argues N.J. Stat. Ann. Section
17:36-5.20 gives the DOBI Commissioner power to approve forms for
expanding rights granted under that statute, but "never for the
purposes of abridging them."
Judge Martinotti opines that the Plaintiff has not established a
mutual mistake of fact between the parties that would justify
reformation of the Policy. Among other things, the Judge finds that
(i) the Plaintiff offers no argument as to how the appraisal
provision in HW-2130 deviates from N.J. Stat. Ann. Section
17:36-5.20 such that the DOBI, viewing the Policy in its entirety,
could find HW-2130 is not substantially or equivalent to or more
favorable to the insured; and (ii) the Plaintiff does not allege
the existence of a prior agreement between the parties that would
justify reformation on basis of mutual mistake, as the Policy was
the only agreement between the parties. Accordingly, the
Plaintiff's claim for Declaratory Judgment or Reformation of the
Policy under Count One is dismissed.
B. Count Two: Breach of Contract
The Plaintiff alleges State Farm "breached the terms of the
contract of insurance, both as originally written and, to the
extent that the relief sought in Count One above is granted, as
reformed by the Court." Specifically, he contends State Farm
breached the insurance contract when it "demanded the Plaintiff
provide an itemization of disputed issues" and "mischaracterized
disagreements over the cost of repairs as disputes over 'scope.'"
State Farm argues it could not have breached the Policy by
requesting an itemization required by the Policy because the
Plaintiff's claim for reformation fails as a matter of law, and
even if it didn't, the Plaintiff's breach of contract claim would
still fail because he was not harmed by the itemization
requirement. Further, State Farm argues its choice to decline to
appraise the issues under the Policy that are not appraisable in
the first place does not constitute breach.
Judge Martinotti dismissed the Plaintiff's breach of contract claim
under Count Two. He finds that reformation is improper because
there is no prior agreement that could serve as the basis of mutual
mistake as required by New Jersey law. State Farm merely enforced
the Policy by requiring Plaintiff to provide an itemization of
disputed issues. Therefore, Plaintiff has not adequately alleged
that State Farm breached the Policy by requiring the Plaintiff to
provide an itemization of issues in dispute.
The Judge further finds that the Plaintiff does not offer a
competing theory of causation and merely argues State Farm
mischaracterized issues of cost to avoid the appraisal process.
Therefore, because the parties' dispute centered on the Policy's
coverage and the cause of the damage, the Plaintiff has not
properly alleged that State Farm breached the appraisal provision
of the Policy by denying Plaintiff's demand for appraisal.
C. Count Three: Breach of the Covenant of Good Faith and Fair
Dealing
In Count Three, the Plaintiff alleges if "State Farm is found not
to have violated the express terms of the insurance contract, it
has nevertheless acted tortiously and in bad faith, and has
breached the covenants of good faith and fair dealing." State Farm
argues this claim should be dismissed "because it is duplicative
and fails to satisfy the pleading requirements for a bad faith
claim." The Plaintiff argues his claim for breach of the implied
covenant of good faith and fair dealing "does not put it in danger
of a duplication of damages."
Judge Martinotti finds that the Plaintiff's allegations underlying
his breach of the implied covenant of good faith claim are based
upon the same conduct as his allegations underlying his breach of
contract claim. For clarity, the Plaintiff's main allegations under
his breach of contract claim are that State Farm breached the
Policy by requiring him to provide an itemization of disputed
issues and by mischaracterizing disagreements over the cost of
repairs as disputes over the Policy's scope, which are repeated in
his allegations underlying his claim for breach of the implied
covenant of good faith and fair dealing because the Plaintiff's
claim for breach of the implied covenant of good faith and fair
dealing is duplicative of his breach of contract claim, the
Plaintiff fails to state a claim under Count Three. Accordingly,
the Plaintiff's claim for breach of the implied covenant of good
faith and fair dealing under Count Three is dismissed.
D. Count Four: Violation of the New Jersey Consumer Fraud Act
The Plaintiff alleges State Farm's refusal to submit his claim to
appraisal "constituted an unconscionable commercial practice,
deception, fraud, false pretense, false promise, and
misrepresentation" which violates the New Jersey Consumer Fraud Act
("CFA"), N.J. Stat. Ann. Section 56:8-1, et seq. He points toward
State Farm's demand that Plaintiff provide an itemization of
disputed issues and mischaracterization of disagreements over the
cost of repairs as examples of violations.
State Farm argues the CFA does not apply to claims arising from the
denial of insurance benefits, and even if it did, the Plaintiff
fails to state a claim under the CFA. The Plaintiff contends that
while the Supreme Court of New Jersey has not decided whether the
CFA applied to fraudulent conduct in the servicing of policies, the
Third Circuit has predicted the New Jersey Supreme Court would find
the CFA applicable when an insurance company is alleged to have
fraudulently performed an insurance contract with an insured.
Since the Plaintiff is seeking damages under the CFA arising from
State Farm's denial of his appraisal benefit, Judge Martinotti
holds that CFA is not applicable. Even if the CFA applied to State
Farm's denial of the Plaintiff's demand for appraisal, the
Plaintiff fails to state a claim under the CFA. The Plaintiff
provides vague allegations to support his CFA claim that do not
satisfy Rule 9(b)'s heightened pleading requirements. These
conclusory allegations do not satisfy Rule 8's lower pleading
standards, let alone Rule 9(b)'s heightened pleading requirements.
Therefore, the Plaintiff's claim for violation of the CFA under
Count Four is dismissed.
E. Plaintiff's Class Action Allegations
In addition to the Plaintiff's individual claims, he asserts class
action claims on behalf of "all State Farm fire insurance
policyholders insured for property located in New Jersey, whose
policy includes endorsement HW-2130." State Farm argues the
Plaintiff's class claims should be dismissed because his individual
claims fail.
Judge Martinotti finds that the Plaintiff does not offer any
argument in opposition on this issue, but generally asserts State
Farm's Motion "should be denied in its entirety, and as to all
counts." At this stage in the litigation, the class Plaintiff seeks
to establish has not been certified. When, a court dismisses a
named plaintiff's individual allegations, the plaintiff's class
allegations will also be dismissed. Accordingly, because he has
dismissed each of the Plaintiff's individual claims and because the
Plaintiff's purported class has not yet been certified, Judge
Martinotti dismissed the Plaintiff's class allegations.
Conclusion
For the reasons he set forth, Judge Martinotti granted State Farm's
Motion to Dismiss Plaintiff's Amended Complaint, and dismissed the
Plaintiff's Amended Complaint. An appropriate order will follow.
A full-text copy of the Court's Sept. 24, 2021 Opinion is available
at https://tinyurl.com/yj39urmd from Leagle.com.
TAWKIFY INC: Stanfield Appeals Summary Judgment Ruling to 9th Cir.
------------------------------------------------------------------
Plaintiff Jeremy Stanfield filed an appeal from a court ruling
entered in the lawsuit entitled JEREMY STANFIELD, Plaintiff v.
TAWKIFY, INC., Defendant, Case No. 3:20-cv-07000-WHA, in the U.S.
District Court for the Northern District of California, San
Francisco.
Tawkify is a dating website. Mr. Stanfield had paid $3,700 to
Tawkify to arrange six dates, two of which occurred but not to his
satisfaction. He sought to cancel the contract and demanded a full
refund. After obtaining only a partial refund, Stanfield filed this
lawsuit, anchoring his claims in California's Dating Services
Contract Act. Then he received a full refund.
Tawkify sought to compel arbitration of the matter. Judge William
Alsup denied the Defendant's motion to compel arbitration.
On Sep. 15, 2021, the Court entered summary judgment in favor of
Defendant. The Plaintiff seeks a review of this ruling.
The appellate case is captioned as Jeremy Stanfield v. Tawkify,
Inc., Case No. 21-16570, in the United States Court of Appeals for
the Ninth Circuit, filed on Sept. 24, 2021.
The briefing schedule in the Appellate Case states that:
-- Appellant Jeremy Stanfield Mediation Questionnaire was due on
Oct. 1, 2021;
-- Transcript shall be ordered by Oct. 25, 2021;
-- Transcript is due on Nov. 23, 2021;
-- Appellant Jeremy Stanfield opening brief is due on Jan. 3,
2022;
-- Appellee Tawkify, Inc. answering brief is due on Feb. 3,
2022; and
-- Appellant's optional reply brief is due 21 days after service
of the answering brief.[BN]
Plaintiff-Appellant JEREMY STANFIELD, on behalf of himself and all
others similarly situated, is represented by:
Elliot Jason Conn, Esq.
CONN LAW, PC
354 Pine Street, 5th Floor
San Francisco, CA 94104
Telephone: (415) 417-2780
E-mail: elliot@connlawpc.com
- and -
Monique Olivier, Esq.
Christian Schreiber, Esq.
OLIVIER SCHREIBER & CHAO LLP
201 Filbert Street, Suite 201
San Francisco, CA 94133
Telephone: (415) 484-0980
E-mail: monique@osclegal.com
christian@osclegal.com
Defendant-Appellee TAWKIFY, INC. is represented by:
Jahmy S. Graham, Esq.
Priscilla Szeto, Esq.
NELSON MULLINS RILEY & SCARBOROUGH LLP
19191 South Vermont Avenue
Torrance, CA 90502
Telephone: (424) 221-7400
E-mail: jahmy.graham@nelsonmullins.com
priscilla.szeto@nelsonmullins.com
TRAVELERS INDEMNITY: Poughkeepsie Suit Dismissed With Prejudice
---------------------------------------------------------------
In the case, POUGHKEEPSIE WATERFRONT DEVELOPMENT, LLC, Plaintiff v.
THE TRAVELERS INDEMNITY COMPANY OF AMERICA, et al., Defendants,
Case No. 20-CV-4890 (KMK) (S.D.N.Y.), Judge Kenneth M. Karas of the
U.S. District Court for the Southern District of New York grants
the Defendants' Motion to Dismiss.
Poughkeepsie brings the case as a proposed class action on behalf
of itself and all others similarly situated, against the Travelers
Indemnity Company of America and the Travelers Companies, Inc. for
breach of contract claims and declaratory judgment under the
Business Income and Civil Authority provisions of an insurance
policy issued by the Defendants for its property located at 176
Rinaldi Boulevard, in Poughkeepsie, New York for losses related to
the COVID-19 pandemic and government orders issued in connection
with it. The Plaintiff submitted a claim for coverage under the
Policy, which the Defendants denied.
Before the Court is the Defendants' Motion to Dismiss.
For the reasons articulated in the Court's recent decision in the
related case, WM Bang LLC, et al. v. Travelers Casualty Insurance
Company of America, No. 20-CV-4540, 2021 WL 4150844 (S.D.N.Y. Sept.
13, 2021), Judge Karas grants the Defendants' Motion To Dismiss.
First, Judge Karas finds that the Plaintiff has failed to state a
claim for Business Income, Extra Expense, or Extended Business
Income coverage because the Complaint does not plead facts to
support an essential requirement to trigger coverage under the
Policy: The existence of "direct physical loss of or damage to
property at the described premises" which is "caused by or
resulting from a Covered Cause of Loss."
Second, the Complaint fails to allege facts that would establish
the critical elements for Civil Authority coverage, including that
the Orders prohibited access to the Plaintiff's Property and that
the Orders were issued in response to prior direct physical loss of
or damage to property other than the insured premises that was
caused by a Covered Cause of Loss.
Third and finally, even if the Plaintiff could establish "direct
physical loss of or damage to property," which it has not done, the
alleged loss was not caused by or resulted from a Covered Cause of
Loss, as required by the Policy. In fact, the Policy contains an
explicit exclusion of property coverage for "loss or damage caused
by or resulting from any virus that induces or is capable of
inducing physical distress, illness or disease." Based on this
identical Virus Exclusion, the Court and others have concluded that
coverage on the Policy was precluded.
Because the Complaint does not plead facts sufficient to support
the Plaintiff's entitlement to coverage under the Policy, the
breach of contract claim fails as a matter of law, and the
Plaintiff is not entitled to declaratory relief.
For the foregoing reasons, Judge Karas granted the Defendant's
Motion and dismissed the Complaint with prejudice. The Clerk of
Court is respectfully directed to terminate the pending Motion and
close the case.
A full-text copy of the Court's Sept. 24, 2021 Order is available
at https://tinyurl.com/vn3hrd2r from Leagle.com.
TRIHEALTH INC: Court Dismisses Forman's Amended Class Complaint
---------------------------------------------------------------
In the case, DANIELLE FORMAN, et al., Plaintiffs v. TRIHEALTH,
INC., and the TRIHEALTH 401(K) RETIREMENT SAVINGS PLAN RETIREMENT
COMMITTEE, Defendants, Case No. 1:19-cv-613 (S.D. Ohio), Judge
Matthew W. McFarland of the U.S. District Court for the Southern
District of Ohio, Western Division, Cincinnati, granted Defendant
TriHealth's Motion to Dismiss Plaintiffs' Amended Class Action
Complaint.
Background
The Plaintiffs contend that Defendants TriHealth, Inc. and the
TriHealth 401(k) Retirement Savings Plan Retirement Committee
breached their duties of prudence and loyalty to the Plaintiffs in
administering their retirement savings plan, a defined contribution
plan. The Plan is sizeable, having more than 10,000 participants
since 2013. n 2013, its assets exceeded $100 million, and in 2017,
its assets exceeded $457 million. The Plan offered "about 25
different investment choices to its participants."
According to the Plaintiffs, the Defendants breached their
fiduciary duties in two ways: permitting the Plan to incur high
administrative fees and offering and failing to remove
underperforming funds with higher fees when there were other,
similar funds that charged lower fees and achieved higher returns.
Indeed, the Plaintiffs allege that "for every year between 2013 and
2017, the administrative fees charged to Plan participants are
greater than the fees of more than 90% of comparable 401(k) plans,
when fees are calculated as cost per participant or when fees are
calculated as a percent of total assets."
The Plaintiffs base this allegation on a benchmarking analysis used
to analyze the fees over the identified period. They alleged that
the Plan's fees were "excessive when compared with other comparable
401K plans offered by other sponsors that had similar numbers of
plan participants, and similar amounts of money under management."
These excessive fees thus led to lower net returns as compared to
other comparable 401K plans. The Plaintiffs argued that the Plan's
fees could have been reduced many times by simply "electing a
different share class offered by the same issuer, or substantially
identical fund from a different issuer."
The Plaintiffs initially challenge 17 of the mutual funds offered
in the Plan. According to them, the issuers of these 17 mutual
funds "offered different share classes that charged lower fees, and
had materially better rates of return. The holders of different
share classes held the same investments, and were subject to the
same restrictions concerning deposits and withdrawals." Indeed, the
Plaintiffs allege the "only difference between share classes was
that the lower-cost share classes were available only to Plans that
had larger investments -- but in all cases, the Plan with more than
$200 million in assets, was large enough to qualify for the lower
cost share class."
The Plaintiffs included a chart showing the 17 fund and share
classes, the fee (measured by basis points), and the three-year
annualized return as compared with the "Lower Cost Available Share
Class," its fees, and three-year annualized returns. This chart
reflects that the Plan's fee was higher for each fund than the
"lower cost" fund, and similarly shows that the Plan's three-year
annualized return was less than the "lower cost" fund -- by less
than one percent, and for many, by less than half a percent. It is
not clear in the chart precisely which years are included in this
three-year annualized number, and it also does not identify the
annual returns in any way.
The Plaintiffs continue that the remaining shares of the Plan's
investment funds "were materially more expensive, and the fees' net
return materially worse, than available alternatives in the same
investment style." This chart similarly reflects that the Plan's
fee was higher for each fund than the "lower cost" fund, and
similarly shows that the Plan's three-year annualized return was
less than the identified "lower cost" fund -- by no more than just
over two percentage points for two funds and less than one
percentage point for most.
The Plaintiffs contend they had "no knowledge of defendant's
process for selecting investments and monitoring them to ensure
they remained prudent. They also had no knowledge of how the fees
charged to and paid by TriHealth Plan participants compared to any
other funds." The Plaintiffs also had no information pertaining to
less expensive and better-performing investment options the
Defendants did not offer, as the Defendants did not provide any
"comparative information to permit the Plaintiffs to evaluate the
Defendants' investment options."
Thus, according to the Plaintiffs, "by selecting and retaining the
Plan's unreasonably expensive cost investments while failing to
adequately investigate the use of lower cost share classes, offered
by the same investment companies, or superior, lower-cost mutual
funds from other fund companies that were readily available to the
Plan," they lost millions of dollars "through unreasonable fees and
poorly performing investments."
The Plaintiffs further allege that the Defendants failed to employ
a prudent and loyal process by failing to critically or objectively
evaluate the cost and performance of the Plan's investments and
fees in comparison to other investment options. The Defendants
selected and retained for years as Plan investment options mutual
funds with high expenses relative to other investment options that
were readily available to the Plan at all relevant times.
Finally, the Plaintiffs maintain that the Defendants failed to
engage in a prudent process for monitoring the Plan's investments
and removing imprudent ones within a reasonable period. This
resulted in the Plan continuing to offer unreasonably expensive
funds and share classes compared to equivalent and/or comparable
low-cost alternatives that were available to the Plan. Through
these actions and omissions, the Defendants failed to discharge its
duties with respect to the Plan in violation of its fiduciary duty
of loyalty under 29 USC 1104(a)(1)(A).
The case is before the Court on TriHealth's Motion to Dismiss. The
Plaintiffs filed their Response in Opposition, to which the
Defendant filed a Reply. Subsequently, the parties filed numerous
Notices of Supplemental Authority for the Court's consideration.
Analysis
The Defendants move to dismiss the Amended Complaint for failure to
state a claim, making two arguments. First, they argue that the
Plaintiffs' claims are barred by the applicable statute of
limitations, and second, that the Plaintiffs failed to adequately
plead their breach of the duty of prudence and loyalty claims such
that dismissal is required.
A. The Extraneous Documents Filed by Defendants
Before addressing the Defendants' substantive arguments, Judge
McFarland must first address whether it can consider the extraneous
documents filed by the Defendants in support of their Motion to
Dismiss, which they contend are properly before the Court because
the documents are either referenced in the Complaint or integral to
the Plaintiffs' claims. The Plaintiffs disagree.
The Defendants rely on these extraneous documents primarily to
support their argument that the Plaintiffs' claims are barred by
the statute of limitations. However, Judge McFarland holds that
these documents are no longer relevant to that analysis. Although
the Defendants cite to Exhibits G and H in support of their failure
to state a claim argument, they do so in support of the proposition
that Defendants documented and disclosed their decision-making
process to the Plaintiffs. But, at this juncture, it is not the
Court's role to bless the Plan or the Defendants' processes
associated with it.
As such, this argument is not relevant to the adjudication of the
Defendants' arguments, and the Court need not consider them.
Accordingly, McFarland has decided the Motion without consideration
of these extraneous documents and thus need not decide whether such
documents are properly before the Court.
B. Statute of Limitations
The Defendants' first argument is that the Plaintiffs' claim is
time-barred. They argue that the Plaintiffs' claims are time-barred
under the three-year statute of limitations of subsection (2)
because the Plaintiffs had "actual knowledge" of the Plan's
offerings, performance, and fees -- the "relevant facts and
information supporting their claims" -- since at least March 2013.
Judge McFarland holds that nothing in the Amended Complaint
reflects the Plaintiffs' receipt or review of any disclosures. And
Defendants do not contend Plaintiffs actually reviewed the
disclosures. Indeed, the Defendants base their arguments solely on
the disclosure being sufficient to establish actual knowledge. But
Intel Corp. Inv. Policy Comm. v. Sulyma, 140 S.Ct. 768 (2020) makes
clear that disclosure is insufficient to satisfy the "actual
knowledge" requirement -- a defendant must show that a plaintiff
was actually aware of that relevant information.
Because statute of limitations is an affirmative defense, thus
placing the burden of proof and persuasion on a defendant, award of
judgment on this basis is generally inappropriate at the motion to
dismiss stage. The Defendants have not argued, nor do the pleadings
show, that the Plaintiffs were actually aware of the information
allegedly disclosed to them. Accordingly, at this preliminary
juncture, Judge McFarland cannot conclude that the Plaintiffs'
claims are barred by Section 1113(2).
C. Failure to State a Claim
The Defendants next argue that the Court should dismiss the
Plaintiffs' Amended Complaint because the Plaintiffs have not
alleged sufficient facts to plausibly state a claim for which they
would be entitled to relief. The Plaintiffs allege that the
Defendants breached their duty of prudence and their duty of
loyalty.
First, Judge McFarland holds that the Plaintiffs have failed to
identify a meaningful benchmark and have not alleged sufficient
underperformance to demonstrate that the funds they have identified
were imprudently retained by the Defendants. The facts as plead do
not permit an inference supporting a plausible claim that the
Defendants behaved imprudently.
Second, Judge McFarland holds that the Plaintiffs fail to
sufficiently allege a breach of loyalty claim. They do not assert
any allegations of self-dealing, nor do they sufficiently allege
facts to show that Defendants' actions were for their own benefit,
or for the benefit of someone else other than the beneficiaries.
Indeed, their allegations pertaining to the breach of the duty of
loyalty primarily reincorporate their breach of the duty of
prudence allegations. This is plainly insufficient.
Conclusion
For the reasons he discussed, Judge McFarland granted the
Defendants' Motion to Dismiss. The facts as pled do not raise a
plausible inference that the Defendants breached their fiduciary
duties.
A full-text copy of the Court's Sept. 24, 2021 Order is available
at https://tinyurl.com/ynt22ecx from Leagle.com.
UNITED AIRLINES: Faces Employee Discrimination Lawsuit in Texas
---------------------------------------------------------------
mustreadalaska.com reports that six United Airlines employees filed
a federal lawsuit in Texas that claims the airlines is
discriminating against employees who ask for a religious or medical
exemptions from the company's Covid-19 vaccine mandate.
The class action lawsuit asked for a temporary restraining order or
a preliminary injunction.
"United's actions have left Plaintiffs with the impossible choice
of either taking the COVID-19 vaccine, at the expense of their
religious beliefs and their health, or losing their livelihoods. In
doing so, United has violated Title VII and the ADA by failing to
engage in the interactive process and provide reasonable
accommodations, and also by retaliating against employees who
engaged in protected activity," the lawsuit contends.
Two of the plaintiffs are captains who were denied his request for
a religious exemption. At least one of them also wanted a medical
exemption but the online system for claiming an exemption only
allowed for one or the other. The same with a jet mechanic, who
wanted to declare both exemptions.
"Because United stated that it was no longer accepting requests
through its online accommodation request system on August 31, 2021,
which was the only formal mechanism United offered its employees to
submit an accommodation request, Mr. Castillo made the unilateral
decision to request these accommodations through his supervisor. A
United Human Resources representative has now informed Mr. Castillo
through his supervisor that the religious accommodation request is
untimely, but that Mr. Castillo may submit his medical request. Mr.
Castillo's religious accommodation request has thus been
administratively denied," the lawsuit says.
A station operations representative with United requested a
religious accommodation from United's vaccine mandate, to which
United responded by offering only an indefinite period of unpaid
leave as a "reasonable accommodation."
According to United's rules, employees must receive their first
dose of vaccine by Sept. 27 or face termination.
The lawsuit also notes that United no longer requires deep cleaning
of its aircraft after each flight, as it did at the beginning of
the pandemic, instead burdening employees with having to submit to
a medical procedure -- a shot -- in order to try to ensure a safe
environment.
United flies to and from Anchorage and places like Chicago, Denver,
San Antonio, Houston, Los Angeles, Pittsburgh, Cleveland, and many
other major airline hubs. [GN]
VELVET YOGURT: Faces Perez Suit Over Failure to Pay Proper Wages
----------------------------------------------------------------
MAYTE PEREZ, an individual, on behalf of herself and others
similarly situated, Plaintiff v. VELVET YOGURT, INC. d/b/a ACTIVE
CULTURE, a California corporation; and DOES 1 through 50,
inclusive, Defendants, Case No. 30-2021-01221399-CU-OE-CXC (Cal.
Super., Orange Cty., Sept. 15, 2021) arises from the Defendants'
failure to pay all wages, failure to pay overtime wages, failure to
provide meal periods or compensation, failure to permit rest
periods or provide compensation, failure to provide accurate
itemized wage statements, waiting time penalties, failure to
reimburse business expenses, and for violation of the Unfair
Competition Law.
The Plaintiff was employed by the Defendant as a non-exempt
employee.
Velvet Yogurt, Inc., d/b/a Active Culture, is a corporation doing
business throughout the State of California, with its principal
place of business in Orange County.[BN]
The Plaintiff is represented by:
Jose R. Garay, Esq.
JOSE GARAY, APLC
249 E. Ocean Blvd. #814
Long Beach, CA 90802
Telephone: (949) 208-3400
Facsimile: (562) 590-8400
E-mail: jose@garaylaw.com
- and -
Daniel J. Hyun, Esq.
Shelly D. Song, Esq.
LAW OFFICE OF DANIEL J. HYUN
1100 West Town and Country Road, Suite 1250
Orange, CA 92868
Telephone: (949) 596-4782
Facsimile: (949) 528-2596
E-mail: dh@danielhyunlaw.com
ss@danielhyunlaw.com
VERSACE BERTONI: Fails to Pay Proper Overtime Wages, Barboza Says
-----------------------------------------------------------------
CESAR GUSTAVO BARBOZA, and other similarly situated individuals,
Plaintiff v. VERSACE BERTONI GELATO LLC d/b/a KONOS; GV AVENTURA
LLC d/b/a KONOS; GV SUNNYISLES LLC d/b/a KONOS; and STEFANO
VERSACE, Defendants, Case No. 1:21-cv-23437 (S.D. Fla., Sept. 24,
2021) is a class action seeking to recover money damages for unpaid
overtime wages pursuant to the Fair Labor Standards Act.
According to the complaint, between June 10, 2019, and July 17,
2020, Plaintiff worked in excess of 40 hours in a workweek without
being compensated at the rate of not less than one- and one-half
times the regular rate at which he was employed. He was employed as
a production worker and pizza maker, performing the same or similar
duties as that of those other similarly situated production workers
and pizza makers whom Plaintiff observed working in excess of 40
hours per week without overtime compensation.
The Corporate Defendants are engaged in providing food items and
services in Miami-Dade County, Florida.[BN]
The Plaintiff is represented by:
Tanesha Walls Blye, Esq.
Aron Smukler, Esq.
R. Martin Saenz, Esq.
SAENZ & ANDERSON, PLLC
20900 NE 30th Avenue, Ste. 800
Aventura, FL 33180
Telephone: (305) 503-5131
Facsimile: (888) 270-5549
E-mail: tblye@saenzanderson.com
asmukler@saenzanderson.com
msaenz@saenzanderson.com
WAITR HOLDINGS: Wins Partial Summary Judgment in Bobby's Suit
-------------------------------------------------------------
In the case, BOBBY'S COUNTRY COOKIN', LLC, v. WAITR HOLDINGS, INC.,
Civil Action No. 2:19-CV-00552 (W.D. La.), Judge Terry A. Doughty
of the U.S. District Court for the Western District of Louisiana,
Lake Charles Division, granted in part and denied in part Waitr's
Motion for Partial Summary Judgment.
Background
Before the Court is the Motion for Partial Summary Judgment filed
by Defendant Waitr. An Opposition was filed by Plaintiffs Bobby's,
Casa Manana, Inc., Que Pasa Taqueria, LLC, and Casa Tu Sulphur,
LLC, on Sept. 15, 2021. A Reply was filed by Waitr on Sept. 22,
2021.
On April 30, 2019, Bobby's filed a Class Action Complaint
individually, and on behalf of all persons or entities nationwide
who are similarly situated. Bobby's Complaint alleged breach of
contract (Count I), violation of the duty of good faith and fair
dealing in the breach of contract (Count II); and unjust enrichment
(Count III).
Waitr operates an online food and delivery platform contracting
with restaurant partners to be part of its network of restaurants
from which customers place orders for delivery of food. Waitr
drivers pick up orders from a restaurant partner and deliver it to
the customer. The customer's payment is then processed through an
online payment system that automatically pays the restaurant and
remits a Service Transaction Fee ("STF") to Waitr.
Bobby's entered into a Master Service Agreement ("MSA") with Waitr
on July 27, 2017. The STF was 10% of the transaction amount. The
STF was increased by Waitr to 15% on Aug. 13, 2018.
Casa Manana entered into a Subscription Service Agreement ("SSA")
with Waitr on Oct. 15, 2015. The STF was initially 3.5%, but was
increased by Waitr on Nov. 1, 2017 to 15%, and increased again on
June 20, 2020 to 25%.
Que Pasa entered into a SSA with Waitr on Feb. 10, 2016. The STF
was initially 3.5%, but was increased by Waitr on Nov. 1, 2017 to
15%, and increased again on June 24, 2020 to 25%.
Casa Tu entered into a SSA with Waitr on Feb. 10, 2016. The STF was
initially 3.5%, but was increased by Waitr on Nov. 1, 2017 to 15%,
and increased again on Oct. 12, 2019 to 20%.
Beginning in the fall of 2017, Waitr sent written notification to
the Plaintiffs of their intention to increase the STF to 15%.
Written notification sent to Bobby's, Casa Manana, Que Pasa, and
Casa Tu, and are attached to the Declaration of Mark Killebrew.
On March 19, 2020, a First Amended and Supplemental Class Action
Complaint was filed by Bobby's, which added Casa Manana, Que Pasa
and Casa Tu. In this amended complaint, Plaintiffs proposed two
classes: (1) The Service Transaction Fee Increase Class, and (2)
The Agreement Termination Class. In addition to the previous three
counts, Plaintiffs added Count IV and Count V, alleging breach of
duty and good faith and unjust enrichment on behalf of The
Agreement Termination Class.
The pending Motion for Partial Summary Judgment addresses the
claims against Waitr on behalf of The Service Transaction Fee
Increase Class.
Discussion
Count I (breach of contract), Count II (bad faith breach of
contract), and Count III (unjust enrichment) are at issue in the
Motion for Partial Summary Judgment regarding The Service
Transaction Fee ("STF") Increase Class.
A. Breach of Contract
Waitr maintains that after the STF increase notifications were sent
to the Plaintiffs, none of the Plaintiffs raised an objection until
the Class Action Complaint was filed on April 30, 2018. It argues
that Bobby's continued receiving and fulfilling orders through the
Waitr platform with 15% STF through June 25, 2019. Waitr also
maintains that Casa Manana, Casa Tu and Que Pasa continued to
accept and fulfill orders from Waitr's food platform until July 19,
2019. It therefore argues that due to the Plaintiffs' silence and
acquiescence after being notified of the STF increase, the
Plaintiffs agreed to the increased STF and are estopped from
alleging breach of contract.
According to the arguments of the Plaintiffs, the specific language
of the MSA and the SSAs required a modification of the agreement to
be in writing and signed by both parties. Since this did not occur,
the Plaintiffs argue that their agreements with Waitr were not
modified by Waitr's Written Notification to the Plaintiffs.
Judge Doughty disagrees with Waitr. He says the wording of the
contracts is clear and unambiguous. The contract requires a writing
signed by both parties to amend it. The contracts cannot be amended
orally or by silence. Even if Waitr is correct that a written
contract with a merger clause can be amended by silence and/or
acquiescence, there is still a material issue of fact as to whether
there was any intent by Plaintiffs to modify the contracts by
silence. Although the Plaintiffs do not contest the fact that they
continued to use Waitr and to pay the increased STF, they certainly
do not admit that they had any intent to modify or amend the
contracts.
Therefore, Judge Doughty holds that the Plaintiffs' argument that
parol evidence cannot be admitted to modify a contract that has an
integration clause and a merger clause, has merit. Waitr will not
be allowed to introduce evidence of any modification of the
contracts by silence, oral agreement, or acquiescence. Waitr's
Motion for Partial Summary Judgment is denied as to Count I and
II.
B. Unjust Enrichment
In Count III, the Plaintiffs claim unjust enrichment. Waitr is
entitled to summary judgment on Count III because the availability
of another remedy at law (the existence of contracts) bars the
claim. One of the required elements of a claim for unjust
enrichment is that the Plaintiff does not have any other remedy at
law.
Conclusion
For the reasons he set forth, Judge Doughty granted in part and
denied in part Waitr's Motion for Partial Summary Judgment. The
Motion is denied as to Count I and Count II and is granted as to
Count III.
A full-text copy of the Court's Sept. 24, 2021 Memorandum Ruling
Order is available at https://tinyurl.com/5bfv3ad2 from
Leagle.com.
WASHINGTON, DC: Female Officers Accuse of Discrimination in Lawsuit
-------------------------------------------------------------------
Rachel Pilgrim at theroot.com reports that Black women have to
carefully navigate the workplace to avoid the Angry Black Woman
trope when speaking up about injustice. This much is true for the
former and current Black women officers who filed a class-action
lawsuit against the Metropolitan Police Department in Washington,
D.C.
According to CNN, the lawsuit alleges that the women experienced
racial and sexual discrimination, intimidation and a hostile,
corrupt workplace.
"We were labeled as troublemakers, angry Black women, and I'm here
to say that we are not angry Black women," Tabatha Knight, one of
the 10 plaintiffs, at news conference, said. "We are tired women
and no one should have to endure what we did."
CNN reports that Knight along with former officers Sinobia
Brinkley, Kia Mitchell, and Regenna Grier, say they were forced out
of the department. Among the rest of the plaintiffs are the current
assistant police chief Chanel Dickerson and a former officer and
2019 "Officer of the Year" Tiara Brown.
NBC News affiliate News4 Washington reports that each plaintiff had
their multiple complaints of harassment, misconduct and
inappropriate behavior ignored by both their superiors and the
department's Equal Employment Opportunity division, which handles
these complaints. In some instances, the women say they experienced
systemic retaliation for speaking up.
From News4:
[block quote] Several MPD EEO investigators say they were forced to
record all EEO interviews, and the EEO manager would play the tapes
for management officers accused of discrimination before the
investigators had a chance to speak with them, according to the
lawsuit.
"Even worse, the investigative reports of claims of racism and
sexism were often altered and fraudulently modified to exonerate
management personnel. In four years, the MPD EEO Department did not
substantiate a single claim of race or gender discrimination," the
firm said. [end block quotes]
The women are seeking $100 million in compensatory damages,
according to CNN, and requesting a special master to oversee and
restructure the department's EEO division and personnel practices.
The suit also includes many of the troubling experiences the
officers experienced.
Former officer Mitchell says she complained about a white officer
pulling out his penis to urinate in a bottle while in a van with
her and other male officers. CNN reports that the officer was not
disciplined and was promoted to lieutenant later on. The suit also
claims that she and former officer Brinkley experienced retaliation
after they complained about riding in a flea-infested vehicle.
Officer Leslie Clark, who is still on the force, reported a fellow
officer who allegedly showed her a picture of a gun he said he was
going to use to assassinate former first lady Michelle Obama. The
lawsuit states that after her complaint, her husband, another
fellow officer, had to start responding to her calls for backup
because other officers would not show up.
Another egregious story came from former Officer Knight, who
testified before the City Council last year that MPD managers were
allegedly changing arrest and crime records to reflect more serious
crimes, News4 reports.
Their attorneys claim MPD management refused to transfer all the
women from abusive superiors or discipline the alleged offenders.
"They have all reported up the chain of command. Some have
testified to the City Council. Most have reached out to the mayor's
office and they have been disbelieved ignored and set aside," lead
attorney Pam Keith, according to News4.
The filing accuses MPD chiefs of police of removing the Black women
officers from assignments and interfering with their work schedules
after they complained. Allegedly, EEO officials also referred the
complainants to the Internal Affairs Division to be investigated,
News4 reports.
The MPD issued the following statement, according to both CNN and
News4:
"While we cannot discuss the specific allegations due to pending
litigation, the Metropolitan Police Department is committed to
treating all members fairly and equitably throughout our
organization. We take these allegations seriously and we will be
reviewing them thoroughly and responding accordingly."
CNN reports the state's attorney general's office said they have
not been served yet and cannot make a comment. [GN]
[*] Andalucia Supreme Court Orders Into Pending Class Actions
-------------------------------------------------------------
EuroWeekly reports that THE ANDALUCIA Supreme Court has ordered a
report into the number of class action cases currently pending
trial.
The report was ordered by the Andalucia Supreme Court president,
Lorenzo del Rio, following concerns that class action cases were
clogging up courts in Andalucia and preventing other cases being
heard.
Mr del Rio has asked the presidents of four sections of the Sevilla
criminal court to send him a report on how many class action cases
have already been processed by their courts.
He has also asked the presidents to tell him how many defendants
there are in each case, which will be used to determine how long a
case is expected to take.
There are reportedly currently more than 170 cases pending trial at
the Sevilla criminal court. The number of cases waiting to be
heard in Sevilla has caused concerns of delays in the courts and
that the workload is causing judges to leave and move to other
areas of Spain.
Officials are also introducing new measures to move more cases
through the courts in Andalucia.
The measures include the creation of a new criminal court section
as well as the expansion of judges in the current criminal courts
so that they will have a total of six judges each, which would
allow these sections to be divided up to hold more trials in court.
[GN]
[*] Class Action Lawsuit Launched on Behalf of Indigenous Mothers
-----------------------------------------------------------------
slatervecchio.com reports that this September, a class action
lawsuit was started in BC on behalf of mothers who had their
newborns taken from them due to a 'birth alert'. A 'birth alert'
occurs when a social worker tags pregnant women, so that child
protection authorities appear in the hospital as the child is being
born. In almost 1/3 of cases, the newborn is taken from the mother
due to "speculative child protection concerns".
The lawsuit claims that this practice often occurs without evidence
and is based on discriminatory assumptions about the mother. The
National Inquiry into Missing and Murdered Indigenous Women and
Girls report noted that this birth alert practice occurs
predominantly to marginalized individuals, including Indigenous
mothers. The report furthers that these birth alerts are "racist,
discriminatory and a gross violation of human rights".
British Columbia had stopped the formal process of birth alerts a
couple of years ago, but these alerts have been found to have a
long-lasting effect on both mothers and children. Further, in cases
surrounding abuse, assault, and systemic mistreatment, there is no
limitation date. This means that if an individual was abused by the
state 30 years ago, they can still file a lawsuit.
The Ministry of Children and Family Development stated that there
were around 444 birth alerts in BC from January 2018 until August
2019. Out of these 444 alerts, 257 of them, around 58%, dealt with
Indigenous mothers. Unfortunately, most of these mothers aren't
told they're subject to a birth alert, which can increase stress
and trauma.
The results of a Freedom of Information request showed that the BC
Ministry of Attorney General concluded that hospital alerts that
involve the disclosure of information without parental consent, are
illegal in British Columbia law, and may even be unconstitutional
on a federal level. This decision, along with the National Inquiry
into Missing and Murdered Indigenous Women and Girls report, were
the two main reasons that BC decided to end its hospital alert
system in September 2019.
The goal of the class action lawsuit is to seek justice for
individuals that have been negatively impacted and targeted by this
system, along with creating a precedent that can be used in future
cases regarding the mistreatment of marginalized groups of people.
[GN]
*********
S U B S C R I P T I O N I N F O R M A T I O N
Class Action Reporter is a daily newsletter, co-published by
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.
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