/raid1/www/Hosts/bankrupt/CAR_Public/211019.mbx
C L A S S A C T I O N R E P O R T E R
Tuesday, October 19, 2021, Vol. 23, No. 203
Headlines
3M COMPANY: Court Dismisses Operative Complaint in Securities Suit
ABF FREIGHT: Bowman Wage-and-Hour Suit Removed to N.D. California
ADS-MYERS INC: Can Compel Arbitration in Quiroz FLSA Class Suit
AE OUTFITTERS: Salazar Sues Over Blind-Inaccessible Website
AIRDOCTOR LLC: Delacruz Files ADA Suit in S.D. New York
ALLIANZ GLOBAL: New York Court Narrows Claims in Alpha Series Suit
ALTICE USA: Barber Shop Owner Seeks $20M Damages in COVID-19 Suit
AMAZON.COM SERVICES: Puentes Suit Removed to W.D. Washington
AMAZON.COM: Vance Seeks to Certify Class of Illinois Residents
AMCOL SYSTEMS: Nyanjom Files FDCPA Suit in D. Kansas
AMERICAN HONDA: Discovery Replies Partly Compelled in Caracci Suit
AMERICAN HONDA: Faces Class Action Over Civic Refrigerant Leaks
AMPLIFY ENERGY: Huntington Beach Businesses File Oil Spill Lawsuit
AMPLIFY ENERGY: Seafood Cos. Among Oil Spill Class Suit Plaintiffs
AMPLIFY ENERGY: Two Law Firms File Class Action Over Oil Spill
ANDREW KREPS: Crumwell Files ADA Suit in S.D. New York
APPHARVEST INC: Levi & Korsinsky Reminds of Nov. 23 Deadline
APPLE INC: Appeals Ruling in App Store In-App Class Action
ARKANSAS: Wellpath's Bid to Dismiss Frazier v. DOC Partly Granted
ARROW SENIOR: Olin-Marquez Files Amended FLSA Class Status Bid
ATHIRA PHARMA: Nacif and Rafi Appointed as Co-Lead Plaintiffs
AURORA, CO: Bid to Amend Class Certification Due Jan. 13, 2022
AUSTRALIA: Class Action Over Climate Risk in Bonds Can Proceed
AUSTRALIAN PHARMACEUTICAL: Faces Priceline Franchisee Class Action
AVIATOR NATION: Alonzo Files ADA Suit in C.D. California
BANKSIA SECURITIES: Class Action Lawyers Faces Criminal Probe
BANKSIA SECURITIES: Judge Lashes Lawyers in Securities Class Action
BOEING CO: Judge to Pause 737 Max RICO Class Action
BOKF NATIONAL: Fifth Circuit Affirms Dismissal of Johnson Suit
BOPPY CO: Faces Recall Class Action Suit Over Defective Loungers
BUTTERBALL LLC: Faces Hiring Discrimination Class Action Lawsuit
BUTTERBALL LLC: Medical Marijuana Patient Denied Job, Suit Says
BYTEDANCE LTD: Settles TikTok Privacy Class Action for $92MM
C&W FACILITY: Knecht FLSA Suit Moved From S.D. Ohio to D. Mass.
CASEY M. KAPLAN: Crumwell Files ADA Suit in S.D. New York
CHARLESTON WATER: Judge Signs Off Flushed Wipes Settlement
CHARTER COMMUNICATIONS: Court Denies Bid to Remand Maharaj Suit
CLEVELAND INTEGRITY: Underpays Utility Inspectors, Stevenson Says
CLIENT SERVICES: Court Certifies Settlement Class in Militello
COLORADO: Collins Suit Seeks to Certify Class of Business Owners
CREDIT SUISSE: Greensill Fund Investor' Class Actions Ongoing
DISCOVER CONSTRUCTION: Pena Sues Over Unpaid Overtime Payments
DISTRICT OF COLUMBIA: Bids for Judgment in Smith Suit Partly OK'd
DOW CHEMICAL: Wins Bid for Partial Judgment on Pleadings in Guidry
EARGO INC: Robbins Geller Reminds of December 6 Deadline
ECO-CHIC LLC: Mason Sues Over Blind-Inaccessible Website
EDEN CREAMERY: Court Denies Kamal's Bid for Voluntary Dismissal
EDGEWELL PERSONAL: Moran Files Suit in N.D. California
EISAI INC: New York Mislabeling Class Suit Dismissed With Prejudice
EMPIRE SOLAR: Former Employees' Class Action Pending
ENDO HEALTH: Faces Antitrust Class Action Over Opana ER Products
EOS FITNESS: Alonzo Files ADA Suit in C.D. California
EQUIFAX INC: Unlawfully Reports Payday Loans Forgiven in Settlement
EQUIFAX INFORMATION: Faces Suit Over Inaccurate Consumer Reports
ESSENTIA HEALTH: Court Amends Scheduling Order in Kraft Suit
EYEBOBS LLC: Settlement Class in Murphy Suit Initially Certified
FACEBOOK INC: Bid to Strike Cain Declaration in Yuan Suit Granted
FARADAY FUTURE: Bernstein Litowitz Probes Securities Violations
FLRISH INC: Sued Over Unlawful Disclosure of Medical Information
FORD MOTOR: N.D. Illinois Narrows Claims in O'Connor Liability Suit
GEBRUEDER KNAUF: Bennett Suit Moved From N.D. Ala. to S.D. Ala.
GEBRUEDER KNAUF: Bennett Suit Moved From N.D. Ala. to S.D. Fla.
GEBRUEDER KNAUF: Bennett Suit Moved From N.D. Ala. to S.D. Tex.
GEBRUEDER KNAUF: Caranna Suit Moved From N.D. Ala. to S.D. Miss.
GEHL FOODS: Wiczek Sues Over Unpaid OT for Non-Exempt Employees
GOLDMAN SACHS: Tan Sues Over Unlawful Trading of Vipshop Stock
GONSALVES & SANTUCCI: Rodriguez Labor Suit Removed to N.D. Cal.
GOOGLE LLC: Motion to Dismiss Gambling Class Action Challenged
GRUBHUB INC: Lawson Labor Lawsuit Can't Proceed as Class Action
HAWX LLC: Collins Files TCPA Suit in N.D. Illinois
HEALTHCARE STAT: Edens Sues Over Unpaid Overtime for LPNs and CNAs
HENRY MCMCASTER: South Carolina Files Suit in D. South Carolina
HOMETOWN AMERICA: Opposition to Class Cert. Bid Due Feb. 3, 2022
IIP-STORES LLC: Alonzo Files ADA Suit in C.D. California
ILLINOIS: Class Certification Reply Extended to Nov. 19
INDIVIOR PLC: Jan. 6, 2022 Settlement Fairness Hearing Set
ISRAEL: Court Issues Interim Injunction in Immigration Class Action
ISRAEL: Hebrew Israelites' Immigration Class Action Ongoing
JAMAICA PUBLIC: Faces Suit Over Disruption of Electricity Supply
JAMES SCHIEBNER: Smith Files Petition in W.D. Michigan
JUUL LABS: Bangor School Dept. Sues Over Youth E-Cigarette Epidemic
JUUL LABS: Bangor Township Sues Over E-Cigarette Campaign to Youth
JUUL LABS: Baraboo School Sues Over Youth's E-Cigarette Addiction
JUUL LABS: Causes Youth E-Cigarette Crisis, Sullivan County Claims
JUUL LABS: Delton Kellogg Sues Over Youth Health Crisis in Michigan
JUUL LABS: E-Cigarette Ads Target Youth, Mason Schools Suit Claims
JUUL LABS: Faces McFarland Suit Over E-Cigarette Campaign to Youth
JUUL LABS: Faces Union City Suit Over Youth E-Cigarette Addiction
JUUL LABS: Hillsboro School District Sues Over E-Cigarette Crisis
JUUL LABS: Markets E-Cigarette to Youth, Chesaning Union Suit Says
KELLY SERVICES: Ill. Court Denies Bids to Dismiss Poonja TCPA Suit
KONINKLIJKE PHILIPS: George Files Suit in W.D. Pennsylvania
KONINKLIJKE PHILIPS: Scarella Sues Over Defective Machines
KRAFT HEINZ: Court Enters Preliminary Pretrial Conference Order
KROGER CO: White Sues Over Sun Care Products' Reef Friendly Label
KRS GLOBAL: Court Enters Jury Trial & Pretrial Scheduling Order
LAKEVIEW LOAN: Court Tosses Brown Bid for Class Certification
LAW ENFORCEMENT: Court Dismisses Vandermark Class Suit
LEWIS BROTHERS: Class Cert Bid Filing Extended to April 4, 2022
LIGHTSPEED COMMERCE: Pomerantz Law Discloses Class Action
LOUISIANA: Plaisance Bid to Certify Class Tossed without Prejudice
LUCKIN COFFEE: AP7 Hails U.S. Class Action Win As Lead Plaintiff
MAGNOLIA FLOORING: Ross Settlement Class Gets Final Certification
MATCH GROUP: Faces Age Discrimination Class Action in Canada
MATTEL INC: Court Certifies Class in Securities Suit
MCNEIL NUTRITIONALS: DiCroce Files Suit in D. Massachusetts
MDL 2543: Bid for Claim Payment in GM Ignition Switch Suit Denied
MEDROBOTICS INC: Court Enters Pretrial Scheduling Order in Spears
METALS CO: Rosen Law Discloses Probe of Potential Securities Claims
MICHAEL STINSON: Seeks Reconsideration of Sept. 30 Class Order
MIDLAND CREDIT: Stockman Suit Removed to N.D. Illinois
MR. BEAST BURGER: Faces Class Action Over Hidden Sales Tax
NANO-X IMAGING: Hagens Berman Reminds of December 6 Deadline
NATIONSTAR MORTGAGE: Court Narrows Claims in McAdams Class Suit
NEW YORK CITY, NY: Seeks Time Extension to Oppose Class Cert. Bid
NISSAN NORTH: Nov. 22 Headlamp Settlement Opt-Out Deadline Set
NORTHERN NATIONAL: Bid to Quash in De Leon Suit Moved to W.D. Texas
OHIO STATE UNIVERSITY: State Republicans Discuss Sexual Abuse Bill
OPTUM INC: Ct. Enters Class Cert. Hearing, Briefing Sched Order
OREGON: Settles Class Action Over Black Oregonians Pandemic Aid
PARADE INC: Bunting Files ADA Suit in E.D. New York
PERMANENT GENERAL: Connor Must File Class Cert. Bid by Dec. 11
PFIZER INC: Edwards Files Suit in E.D. Pennsylvania
PLAINS ALL: Morr Suit Loses Bid for Class Certification
PNC BANK: Sued Over Mortgage Forbearance Mandate Non-Compliance
POPULUS FINANCIAL: Barragan Wage-and-Hour Suit Goes to C.D. Cal.
PROBABLE CAUSE DIRECTOR: Smith Loses Bid for Class Certification
PROGRESSIVE MOUNTAIN: Brown Files Suit in N.D. Georgia
QUALCOMM INC: Averts Cellular Chip Licensing Class Action
R&S MOBILE HOME: McCorkle Sues Over Unpaid Minimum, Overtime Wages
RCD RESTORATIONS: Huertero Sues Over Unpaid Minimum, Overtime Wages
RECKITT BENCKISER: Loses Bid to Strike Submissions in Williams Suit
RESURGENT CAPITAL: Pruitt Files FDCPA Suit in D. Maryland
RITZ-CARLTON HOTEL: Opposition to Class Cert. Bid Due October 25
RUTHERFORD COUNTY, TN: Juvenile Justice System Probe Published
SALLY BEAUTY: Alonzo Sues Over Blind-Inaccessible Website
SEARS HOME: Appliance Warranty Complaints Lead to Class-Action
SIMM ASSOCIATES: Jones FDCPA Suit Removed to D. New Jersey
SK FOODS: Four In One's Bid for Cy Pres Fund Distribution Granted
SKYWEST INC: N.D. California Certifies Four Classes in Meek Suit
SOCLEAN INC: Landers Product Liability Suit Removed to E.D. Ark.
SOUTHPOINT FINANCIAL: Nitschke Sues Over Unlawful Overdraft Fees
STATE COLLECTION: Vela FDCPA Suit Removed to N.D. Illinois
STATE FARM: Geist Insurance Contract Suit Goes to E.D. Pennsylvania
STATE FARM: Pete Must File Class Status Bid by Jan. 3, 2022
STEWART ENTERPRISES: Litigation Team Prevails in Fiduciary Lawsuit
STRADA SERVICES: Reyes Seeks Reconsideration of Cert. Denial
STRIVETIN OPERATING: Locklin Sues Over Deceptive Sunscreen Labeling
TAKEDA PHARMACEUTICAL: Ct. Extends Class Certification Schedule
TALOS ENERGY: Delaware Court Grants Bids to Toss Patel v. Duncan
TASTES ON THE FLY: Yepez Labor Suit Removed to N.D. California
TD BANK: Burns Consumer Class Suit Removed to D. New Jersey
TFORCE FREIGHT: Court Narrows Claims in Mish Suit
TOUR RESOURCE: Bid to Dismiss Certain Claims in Delcavo Suit Denied
TOYOTA MOTOR: Perez Sues Over Prius Vehicles' Defective HVAC System
TWIN CITY FIRE: Martin Files Suit in W.D. Pennsylvania
ULTA BEAUTY: Court Narrows Claims in Hansber Suit
UNITED STATES: Plaintiff No. 1's Bid for Certification Denied
US DOMINION: Cooper Files RICO Suit in D. Colorado
USF HOLLAND: Partial Bid to Dismiss EEOC's Complaint Granted
UTAH: Medina Suit Seeks to Certify Class of Detainees
VENTURE HOME: Lied About Electricity Offset, Class Action Says
VIEW HOMES: Vance FLSA Suit Moved From D. Colorado to W.D. Texas
VOLKSWAGEN GROUP: Class Status Hearing Continued to Jan. 7, 2022
WAUKESHA SCHOOL: Sued for Refusing to Implement COVID-19 Measures
WEINSTEIN KAPLAN: Dahan Files FDCPA Suit in E.D. New York
WELLS FARGO: Court Narrows Claims in Consolidated Securities Suit
WESTCO CHEMICALS: Draney's Bid to Certify Settlement Class Denied
WILL COUNTY, IL: Class of Detainees Certified in Walsh v. WCADF
WISCONSIN DOLLS: Initial Pretrial Conference Order Entered in Pike
WISCONSIN: Lawsuit Filed for Failing to Protect Kids From COVID-19
WOOLWORTHS LTD: Settles Employees' Class Action for $50 Million
[*] Australian Class Action Funding Reform May Limit Competition
[*] Baker McKenzie Provides Global Dispute Resolution Update
[*] Judge Won't Dismiss Zantac Consumer Class Actions
[*] Missouri AG's Class Action Over School Mask Mandates Pending
[*] U.S. Political Groups Involve in Unlawful Collection of Money
*********
3M COMPANY: Court Dismisses Operative Complaint in Securities Suit
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District Judge Nancy E. Brasel of the U.S. District Court for the
District of Minnesota grants the Defendants' motion to dismiss the
operative complaint in the lawsuit entitled In re 3M COMPANY
SECURITIES LITIGATION, Case No. 20-CV-2488 (NEB/KMM) (D. Minn.).
The Plaintiffs allege that 3M Company and certain of its chief
executives violated Sections 10(b) and 20(a) of the Securities
Exchange Act of 1934 ("Exchange Act") and SEC Rule 10b-5 by
materially understating 3M's potential legal and financial exposure
related to its historical manufacture, distribution, and disposal
of per- and polyfluoroalkyl substances ("PFAS").
The Defendants now move to dismiss the operative Complaint,
asserting that the Plaintiffs fail to meet the heightened pleading
burden under the Private Securities Litigation Reform Act
("PSLRA").
Background
Reduced to its essence, the Complaint alleges as follows: (1) 3M
has been sued repeatedly for damages relating to its manufacture
and disposal of PFAS, which are toxic chemicals; (2) 3M disclosed
the PFAS-related lawsuits to investors in various securities
filings; and (3) those disclosures--and attendant statements by 3M
executives--were inadequate to apprise investors of the potential
extent of 3M's PFAS-related liability.
The history of the manufacture of PFAS dates back to the 1940s.
Beginning approximately then, 3M developed "per- and
polyfluoroalkyl substances," or "PFAS," a class of synthetic
chemical compounds. These compounds were used to manufacture a
range of commercial and industrial products, including
high-temperature fire-fighting foam. 3M manufactured PFAS at
industrial facilities in Cottage Grove, Minnesota, as well as
chemical plants in Alabama and Illinois, and at sites in Belgium
and Germany.
3M allegedly disposed of PFAS and its waste byproducts into public
waterways and unlined dumps, leading to environmental contamination
near 3M facilities and hundreds of other sites. 3M claimed that
PFAS were safe and that they "created no risk of material
environmental or other liability" for 3M.
3M allegedly knew, but did not disclose, that it was selling "toxic
poisons" to the public for decades. Internal 3M documents suggest
that 3M had completed studies in the 1950s indicating the toxicity
of PFAS to animals and humans. In the 1960s, 3M allegedly knew that
PFAS would pollute American drinking water sources, and an internal
3M manual and study found PFAS to be toxic.
3M released a "trove" of scientific data to the United States
Environmental Protection Agency ("EPA") in 1998. In 2000, 3M
announced that it would begin to phase out its PFAS production. 3M
ended its production of PFAS in 2008.
In 2010, the Minnesota Attorney General sued 3M over its
manufacture and disposal of PFAS ("AG Litigation").
In May 2016, the EPA raised standards relating to PFAS and drinking
water safety, significantly expanding the scope of the
contamination problem for 3M. At the same time, 3M and others faced
multiple personal injury/toxic tort lawsuits over PFAS. In February
2017, E.I. du Pont de Nemours & Company--a PFAS customer of 3M--and
related companies agreed to pay $671 million to settle thousands of
personal injury lawsuits relating to PFAS exposure.
This lawsuit is not a toxic tort or personal injury lawsuit against
3M. Instead, it alleges securities fraud based on the way 3M
disclosed the underlying PFAS litigation. 3M's 2016 Form 10-K and
quarterly filings for 2017 disclosed particulars about the PFAS
litigation, including information about the AG litigation and
several lawsuits filed in Alabama and other states.
On July 8, 2019, 3M announced that it had begun to investigate
possible PFAS contamination in three municipal landfills that had
accepted waste from 3M's Alabama plant. 3M explained that for the
past several months, 3M has been conducting a thorough search for
former landfills to test for any waste that may include PFAS. The
price of 3M common stock fell 1.6% that day.
That same day, an analyst estimated that 3M's liability could be
anywhere from $6 billion (based on cases filed to date) to $22
billion (based on the contaminated sites identified to date). The
analyst also noted these estimates could prove to be conservative,
but that favorable trial verdicts for 3M could push the
manufacturer liability in the opposite direction.
After July 8, 2019, 3M took additional charges for PFAS-related
liabilities. In January 2020, 3M announced a litigation-related
pre-tax charge of $214 million in part because, during the fourth
quarter of 2019, 3M "updated its assessment of environmental
matters and litigation related to its historical PFAS manufacturing
operations and expanded its evaluation of the other 3M sites that
may have used certain PFAS-containing material and locations at
which they were disposed."
According to 3M's 2019 Form 10-K, 3M recorded liabilities of $445
million for its other PFAS-related environmental liabilities. 3M
continued to increase its accruals for PFAS-related environmental
liabilities during the first three quarters of 2020.
This Litigation
The Plaintiffs represent a putative class of purchasers of 3M
common stock between Feb. 9, 2017, and July 8, 2019 ("Class
Period"). They allege that 3M and the Individual Defendants (Roman,
Gangestad, and former 3M CEO Inge Thulin), knew, or were reckless
in not knowing, by Feb. 9, 2017 (the day after 3M filed its 2016
Form 10-K and eleven days before the AG Litigation settlement),
that 3M faced significant liabilities related to its manufacture,
distribution, and disposal of PFAS.
Count I alleges violations of Section 10(b) of the Exchange Act and
SEC Rule 10b-5 against all Defendants, and Count II alleges
violations of Section 20(a) of the Exchange Act against the
Individual Defendants.
Analysis
The Defendants assert that the Court should dismiss the Section
10(b) claim because it fails to plead an actionable misstatement
and fails to plead a strong inference of scienter.
A. Actionable Misstatement
The Defendants argue that the Complaint fails to comply with the
PSLRA because it amounts to "puzzle" or "kitchen sink" pleading.
Under this principle, courts are to disregard "catch-all" or
"blanket" assertions not meeting the particularity requirements,
Judge Brasel notes, citing Ferris, Baker Watts, Inc. v. Ernst &
Young, LLP, 395 F.3d 851, 853 (8th Cir. 2005).
The parties do not dispute that throughout the Class Period, 3M (1)
disclosed the nature of its PFAS-related contingent liabilities,
(2) accrued for some PFAS-related liabilities, and (3) stated that
it could not estimate the possible loss or range of loss for other
PFAS-related liabilities. The parties quarrel over whether the
Complaint adequately pleads that 3M's accruals and beliefs about
the effect of future PFAS-related charges were both (1) probable
and (2) reasonably estimable under ASC 450. And the Plaintiffs
maintain that Defendants failed in their duty to disclose an
estimate of the possible "range of loss" for the PFAS-related
liabilities.
For the reasons explained in this Order, the Court finds that the
Plaintiffs have not adequately alleged a material misrepresentation
based on 3M's failure to accrue or estimate a range of loss for
PFAS-related liabilities.
The Court also finds that the Complaint lacks facts showing that
the Defendants had actual knowledge of falsity. As a result, the
alleged forward-looking statements are not actionable. The Court,
thus, need not reach the issue as to whether the Defendants
accompanied their statements with meaningful cautionary language.
The Court further finds that the Complaint fails to plead the
existence of any facts or further particularities showing that the
Defendants had access to, or knowledge of, information
contradicting their public statements when they were made and,
thus, fails to satisfy the heightened PSLRA pleading requirement.
B. Scienter
In addition to meeting the requisite misstatement standard,
Plaintiffs must meet the PSLRA's scienter requirement. The
Plaintiffs can establish scienter from: (1) allegations of motive
and opportunity to defraud; (2) facts showing a mental state
embracing an intent to deceive, manipulate or defraud; or (3)
conduct that rises to severe recklessness.
The Defendants argue that the Complaint blocks each of the avenues
to scienter because it: (1) fails to plead motive to defraud, (2)
fails to plead intent to defraud, and (3) fails the standard for
severely reckless conduct.
Judge Brasel holds that the Complaint does not allege specific
facts suggesting that when 3M filed its 2017 Form 10-K, the
Defendants knew that the AG Litigation would likely settle and what
that settlement amount (or range of amounts) would be. The
Plaintiffs argue that it would be absurd to suggest that Defendants
were not aware of the probability that 3M would incur significant
PFAS-related liability, but they do not allege specific facts
suggesting that such liability was probable, that is, had "at least
a 70% chance of occurrence," Judge Brasel opines. Nor do they
allege that the Defendants were aware of, and did not disclose,
information from which they could reasonably estimate the
PFAS-related liability beyond what 3M had disclosed.
Moreover, the Defendants' scienter is contradicted: in response to
the SEC's request that 3M explain why it accrued nothing for the AG
Litigation before settlement, 3M offered the SEC a thorough
explanation of its decision.
Accepting all factual allegations as true and considering the
Complaint as a whole, the Court finds that the Complaint does not
allege facts showing a mental state embracing an intent to deceive,
manipulate, or defraud.
Because the Complaint does not satisfy the PSLRA's heightened
standard for pleading scienter, the Court grants the Defendants'
motion to dismiss Count I of the Complaint.
II. Section 20(a) Claim
Because the Plaintiffs fail to state a claim for securities fraud,
there can be no secondary liability against the Individual
Defendants as "controlling persons," Judge Brasel holds, citing
Parnes v. Gateway 2000, Inc., 122 F.3d 539, 550 n.12 (8th Cir.
1997). The Section 20(a) claim against the Individual Defendants
is, therefore, dismissed.
Conclusion
Based on the foregoing and on all the files, records, and
proceedings herein, the Defendants' Motion to Dismiss is granted.
The Complaint is dismissed.
A full-text copy of the Court's Order dated Sept. 30, 2021, is
available at https://tinyurl.com/dkk8wssd from Leagle.com.
ABF FREIGHT: Bowman Wage-and-Hour Suit Removed to N.D. California
-----------------------------------------------------------------
The case styled TERRY BOWMAN and MARIO SOTO, individually and on
behalf of all others similarly situated v. ABF FREIGHT SYSTEM, INC.
and DOES 1 through 100, inclusive, Case No. RG21111887, was removed
from the Superior Court of the State of California, County of
Alameda, to the U.S. District Court for the Northern District of
California on October 8, 2021.
The Clerk of Court for the Northern District of California assigned
Case No. 4:21-cv-07921 to the proceeding.
The case arises from the Defendant's alleged violations of the
California Labor Code including failure to pay the Plaintiff and
similarly situated over-the-road motor freight drivers overtime
wages, failure to provide them meal periods, failure to provide
them rest periods, failure to pay them minimum wages, failure to
provide them with accurate itemized statements, failure to pay
their wages due at termination of employment, and failure to
reimburse their business expenses.
ABF Freight System, Inc. is a freight company, headquartered in
Fort Smith, Arkansas. [BN]
The Defendant is represented by:
Emily Burkhardt Vicente, Esq.
Karen Evans, Esq.
HUNTON ANDREWS KURTH LLP
50 California Street, Suite 1700
San Francisco, CA 94111
Telephone: (415) 975-3700
Facsimile: (415) 975-3701
E-mail: ebvicente@HuntonAK.com
kevans@HuntonAK.com
ADS-MYERS INC: Can Compel Arbitration in Quiroz FLSA Class Suit
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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 issued an order on arbitration, and facts and
findings of law on contract formation.
Background
Plaintiffs Jenny Quiroz and Brayan Martinez Barrios, on behalf of
themselves and a putative class of similarly situated employees,
have sued ADS-Myers and its founder and CEO, Karoline Myers, for
claims under the Fair Labor Standards Act (FLSA), the California
Labor Code, the Unfair Competition Law, and Private Attorneys
General Act (PAGA). ADS provides janitorial services, and Quiroz
and Barrios are said to have worked for it in 2019.
The Court denied a motion to dismiss directed at Barrios because
fact disputes about his employment status were not suitable for
decision in a pleadings motion. Judge Donato's order resolves ADS'
motion to compel arbitration of Quiroz's non-PAGA claims. ADS says
Quiroz agreed to arbitration in an employment contract she signed.
Quiroz objects that an agreement to arbitrate was never formed
because the contract she signed was illegible, and if an agreement
was formed, it is unenforceable as unconscionable. See Dkt. No.
35.
In response to the contract formation objection, the Court
conducted a bench trial under Federal Rule of Civil Procedure 52
and the Federal Arbitration Act (FAA), which mandates that, when
the "making of the arbitration agreement or the failure, neglect,
or refusal to perform the same be in issue, the court will proceed
summarily to the trial thereof." The sole issue for trial was
whether Quiroz and ADS entered into a binding arbitration
agreement, with a focus on the legibility of the contract between
the parties. The Court heard testimony from four witnesses,
including Quiroz and Myers, and received documents into evidence.
Discussion
Judge Donato holds that the record demonstrates that Quiroz signed
an employment contract that contained a clause requiring
arbitration of disputes. Even assuming that the original contract
she signed looked like the faxed copy admitted into evidence --
which was not clearly established at trial and is an assumption in
Quiroz's favor -- the text is sufficiently clear to the naked eye
to be readable. Judge Donato had little trouble reading it without
visual enhancements of any sort, and Quiroz denied any vision
problems. In addition, the key portions of the agreement advising
Quiroz that she was consenting to arbitration and giving up the
right to a jury trial were presented in bigger and bolder typeface
than the rest of the document. So too for the closing admonition to
read the agreement before signing it. The acknowledgement that she
had done so stood out in distinctively italicized typeface.
The record also demonstrates that Quiroz made no objection to the
legibility of the contract at the time she signed it, Judge Donato
finds. She was perfectly free to express any concerns she might
have had on that score before she signed, but did not do so. The
same goes for handling the documents in a dark parking lot. Nothing
prevented Quiroz from asking for a light, or moving to a location
where she could find one. Quiroz rushed through signing the
documents to get back to work, but as her testimony made clear,
that was a voluntary decision on her part, and not something ADS
did to her.
Consequently, the facts demonstrate that a binding arbitration
agreement was made between Quiroz and ADS. Quiroz has normal
vision, and she voluntarily testified at trial in English and
without a translator. Nothing in the record indicates an inability
to read a document in English.
Ms. Quiroz suggests that the ADS hiring representatives
misrepresented or concealed the arbitration clause or the entire
employment contract itself. The record does not support that
contention, Judge Donato holds. He says, nothing in the testimony
at trial indicated that an ADS representative did anything to dupe
or confuse Quiroz, or deny her a fair opportunity to read and
review the contract before signing it. To the contrary, the record
shows that Quiroz voluntarily chose not to read through the
documents. In addition, as Quiroz's own case citations make clear,
ADS had no duty to spell out the terms of the contract and
arbitration clause to her. The decision not to read the contract
before signing was her responsibility alone.
Since an agreement to arbitrate was formed, the question now is
whether ADS is entitled to enforce it. The answer is yes, Judge
Donato declares. He says, the Court has detailed the strong
presumption in favor of arbitration, including in situations of
some doubt, in other decisions.
Overall, the circumstances here are not at all the same as the
"oppressive" ones found in Kho, which featured "an unusually high
degree of procedural unconscionability." To be sure, the employment
contract here, like most such agreements, had some indicia of
inequal bargaining power, but Quiroz has not demonstrated that it
was "imposed in such an unfair fashion and so unfairly one-sided
that it should not be enforced."
The parties did not address how an order compelling Quiroz to
arbitrate her claims might affect the putative class for which she
is a named plaintiff. The denial of the request to dismiss Barrios,
the other named plaintiff, is an additional factor. The issue of
the impact, if any, on the putative class will require resolution,
but the Court declines to reach it now in light of the parties'
failure to attend to it in the first instance. Pending further
order, the order compelling arbitration applies at this time only
to Quiroz herself.
Conclusion
After consideration of the evidence and testimony at trial, and the
parties' post-trial briefs, Judge Donato concludes that a binding
agreement to arbitrate was struck. He also concludes that the
agreement is not unconscionable.
Consequently, Quiroz is obligated to arbitrate all her claims
against ADS other than the PAGA claim. The parties agree, rightly,
that the PAGA claim is not subject to arbitration. Quiroz's portion
of the case is stayed and will be administratively closed pending
arbitration. The parties are directed to file joint status reports
on the arbitration every 90 days pending further order.
A full-text copy of the Court's Sept. 29, 2021 Order is available
at https://tinyurl.com/4b7hyjxd from Leagle.com.
AE OUTFITTERS: Salazar Sues Over Blind-Inaccessible Website
-----------------------------------------------------------
Vivian Salazar, individually and on behalf of all others similarly
situated v. AE OUTFITTERS RETAIL CO., a Delaware Corporation; and
DOES 1 to 10, inclusive, Case No. 2:21-cv-01810-JAM-JDP (E.D. Cal.,
Sept. 30, 2021), is brought to secure redress against the
Defendants for its failure to design, construct, maintain, and
operate its website to be fully and equally accessible to and
independently usable by Plaintiff and other blind or visually
impaired people.
The Defendant's denial of full and equal access to its website, and
therefore denial of its products and services offered thereby and
in conjunction with its physical location, is a violation of the
Plaintiff's rights under the Americans with Disabilities Act and
California's Unruh Civil Rights Act. Because the Defendant's
website, https://www.ae.com/, is not fully or equally accessible to
blind and visually-impaired consumers in violation of the ADA, the
Plaintiff seeks a permanent injunction to cause a change in the
Defendant's corporate policies, practices, and procedures so that
the Defendant's website will become and remain accessible to blind
and visually impaired consumers, says the complaint.
The Plaintiff is a visually impaired and legally blind person who
requires screen-reading software to read website content using his
computer.
The Defendant's website provides consumers access to "high-quality,
on-trend clothing, accessories and personal care products at
affordable prices."[BN]
The Plaintiff is represented by:
Thiago Coelho, Esq.
Jasmine Behroozan, Esq.
Binyamin I. Manoucheri, Esq.
WILSHIRE LAW FIRM
3055 Wilshire Blvd., 12th Floor
Los Angeles, CA 90010
Phone: (213) 381-9988
Facsimile: (213) 381-9989
Email: thiago@whilshirelawfirm.com
jamine@wilshirelawfirm.com
binyamin@wilshirelawfirm.com
AIRDOCTOR LLC: Delacruz Files ADA Suit in S.D. New York
-------------------------------------------------------
A class action lawsuit has been filed against Airdoctor, LLC. The
case is styled as Emanuel Delacruz, on behalf of himself and all
other persons similarly situated v. Airdoctor, LLC, Case No.
1:21-cv-08423-JPO (S.D.N.Y., Oct. 12, 2021).
The lawsuit is brought over alleged violation of the Americans with
Disabilities Act.
Air Doctor, LLC -- https://airdoctorpro.com/ -- was founded in
2012. The company's line of business includes providing plumbing,
heating, air-conditioning, and similar work.[BN]
The Plaintiff is represented by:
Jeffrey Michael Gottlieb, Esq.
Michael A. LaBollita, Esq.
GOTTLIEB & ASSOCIATES
150 E. 18 St., Suite PHR
New York, NY 10003
Phone: (212) 228-9795
Email: nyjg@aol.com
michael@gottlieb.legal
ALLIANZ GLOBAL: New York Court Narrows Claims in Alpha Series Suit
------------------------------------------------------------------
The U.S. District Court for the Southern District of New York
granted in part and denied in part the Defendant's omnibus motion
to dismiss in part the Plaintiffs' complaints in the first 12 of
the related cases in the matter styled In re: ALLIANZ GLOBAL
INVESTORS U.S. LLC ALPHA SERIES LITIGATION, Case Nos. 20 Civ. 5615
(KPF), 20 Civ. 5817 (KPF), 20 Civ. 7061 (KPF), 20 Civ. 7154 (KPF),
20 Civ. 7606 (KPF), 20 Civ. 7842 (KPF), 20 Civ. 7952 (KPF), 20 Civ.
8642 (KPF), 20 Civ. 9478 (KPF), 20 Civ. 9479 (KPF), 20 Civ. 9587
(KPF), 20 Civ. 10028 (KPF) (S.D.N.Y.).
The Plaintiffs, large institutional investors, have brought more
than a dozen related actions, including two putative class actions,
against Defendant Allianz Global Investors U.S. LLC ("AllianzGI")
arising out of the collapse of a series of Structured Alpha Funds
(the "Funds") in which the Plaintiffs had invested. The Funds lost
much of their value, and in some instances collapsed completely, in
February and March of 2020 during the market turmoil caused by the
COVID-19 pandemic.
The Plaintiffs allege that the Defendant's mismanagement and
self-dealing caused the Funds' precipitous collapse in value, and
they assert claims under the Employee Retirement Income Security
Act of 1974 ("ERISA"), and at common law for breach of contract,
breach of fiduciary duty, and negligence. One Plaintiff also
asserts claims for fraud and misrepresentation.
District Judge Katherine Polk Failla notes that her Opinion and
Order draws its facts from the Plaintiffs' complaints and amended
complaints, the well-pleaded allegations of which are taken as true
for purposes of the instant motion. See Ark. Tchr. Ret. Sys. v.
AllianzGI, et al. ("ATRS"), No. 20 Civ. 05615 (KPF); Ret. Program
for Emps. of the Town of Fairfield, et al. v. AllianzGI
("FFLD/NEHC"), No. 20 Civ. 5817 (KPF); Lehigh Univ. v. AllianzGI
("Lehigh"), No. 20 Civ. 7061 (KPF); Teamster Members Ret. Plan, et
al. v. AllianzGI ("TMRT/BLYR"), No. 20 Civ. 7154 (KPF); Blue Cross
& Blue Shield Ass'n Nat'l Emp. Benefits Comm. v. AllianzGI, et al.
("BCBS"), No. 20 Civ. 7606 (KPF); Metro. Transp. Auth. Defined
Benefit Pension Plan Master Tr., et al. v. AllianzGI ("MTA"), No.
20 Civ. 7842 (KPF); Chi. Area I.B.T. Pension Plan & Tr., et al. v.
AllianzGI ("CPPT"), No. 20 Civ. 7952 (KPF); Emps.' Ret. Sys. of the
City of Milwaukee v. AllianzGI, et al. ("CMERS"), No. 20 Civ. 8642
(KPF); Chi. & Vicinity Laborers' Dist. Council Pension Fund, et al.
v. AllianzGI, et al. ("CLPF"), No. 20 Civ. 9478 (KPF); Bds. of Trs.
for the Carpenters Health & Sec. Tr. of W. Wash., et al. v.
AllianzGI, et al. ("CTWW"), No. 20 Civ. 9479 (KPF); United Food &
Com. Workers Unions & Emps. Midwest Pension Fund, et al. v.
AllianzGI, et al. ("UFCW"), No. 20 Civ. 9587 (KPF); Bd. of Trs. of
the Int'l Bhd. of Elec. Workers, Local No. 38 Pension Fund Pension
Plan v. AllianzGI ("IBEW"), No. 20 Civ. 10028 (KPF). For ease of
reference, citations to the docket in this Opinion are to the
docket in the lead case, Arkansas Teacher Retirement System v.
AllianzGI, et al., No. 20 Civ. 5615 (KPF), unless otherwise
specified.
Background
The Related Cases encompass 12 actions, each with a unique
complaint containing extensive factual allegations. The Defendant
moves to dismiss only certain of the Plaintiffs' claims in each
complaint. As such, the Court relays in this Opinion only those
facts relevant to resolving the instant motions to dismiss.
The Plaintiffs are institutional investors with millions, if not
billions, of dollars of investments under management. Most
Plaintiffs are fiduciaries that owe duties to the individuals or
entities whose assets they have been entrusted to invest. Some
Plaintiffs utilize the services of independent investment advisors.
Eight of the 12 Related Cases -- the BCBS, CLPF, CPPT, CTWW,
FFLD/NEHC, IBEW, TMRT/BLYR, and UFCW actions -- involve the
Plaintiffs that are subject to ERISA. Across the Related Cases, the
Plaintiffs invested in more than a dozen of the Defendant's
Structured Alpha Funds.
The Defendant is a Delaware limited liability company and
registered investment advisor under the Investment Advisers Act of
1940, with its principal office in New York City. The Defendant is
the investment manager for the Funds. ATRS, the first of the
Plaintiffs to invest in the Funds, did so in April 2009, and the
last investment made by any of the Plaintiffs occurred in November
2019.
The Defendant's Investment Strategy
The parties agree that the Funds are governed by a series of
documents: a Limited Liability Company Agreement ("LLC Agreement"),
a Confidential Private Placement Memorandum ("PPM"), and a
Subscription Agreement ("SA," and collectively with the LLC
Agreement and PPM, the "Governing Documents").
Broadly speaking, the Plaintiffs allege that the Defendant marketed
the Funds as relatively safe investments, pitching a multi-pronged
investment strategy designed to both provide "broad market
exposure" and achieve "targeted positive return potential," while
still maintaining "structural risk protections" to safeguard
against losses in the event of a market crash. The key to the
Funds' investment strategy was the implementation of "alpha" and
"beta" components.
The "beta" component consisted of investments that sought to
deliver a return equivalent to a specified "benchmark" index (PPM
1), essentially aiming to replicate the return of a selected market
index or other passive investment strategy. Depending on the Fund,
the beta component could be comprised of investments that tracked
different market indices. The "alpha" component, by contrast,
sought to generate returns above the benchmark index, using the
underlying investments of the beta component as collateral (PPM
1-2) in order to execute an options-based strategy.
The Plaintiffs allege that the Defendant marketed the alpha
component as a strategy for trading options aimed at delivering a
steady, resilient return stream with a fundamental emphasis on risk
management. In other words, the alpha component was pitched to the
Plaintiffs as a way of achieving relatively safe, risk-managed
returns that were uncorrelated with market performance. As such,
the Defendant told the Plaintiffs that it would never make a
forecast on the direction of equities or volatility.
Judge Failla finds that the Plaintiffs' complaints are replete with
particularized examples of the Defendant touting the risk
management benefits of investing in the Funds.
The Funds and the Governing Documents
Each Fund was a separate Limited Liability Company ("LLC")
organized under Delaware law, with the Defendant as the managing
member. To invest in the Funds (i.e., to become a non-managing
member of the LLC), each Plaintiff agreed to the terms and
conditions set forth in the Subscription Agreement, in the PPM of
the Fund, and in the Limited Liability Company Agreement of the
Fund.
In the LLC Agreement, the Defendant accepted appointment as, inter
alia, the Investment Manager of the Fund, with "duties" that
included management of the Fund's assets. Section 2.12 of the LLC
Agreement provides that in the event that any assets of the Fund
are subject to fiduciary duty rules of ERISA, the Defendant, in its
capacity as investment manager, acknowledges that it will be a
fiduciary with respect to such assets.
In other words, when the Funds' assets were considered "plan
assets" under ERISA--meaning 25% or more of the Funds' assets were
invested by ERISA benefit plans--the Defendant agreed to abide by
the standard of care imposed on fiduciaries under ERISA (the
"Contractual ERISA Standard of Care"). The PPM imposes similar
duties, stating that for so long as the assets of the Fund are
treated as "plan assets" for purposes of ERISA, the Managing Member
is a "fiduciary," as such term is defined by ERISA.
With respect to non-ERISA plan assets, the Defendant agreed to use
its reasonable best efforts to discharge its duties consistent with
the standard of care under Section 404(a)(1)(B) of ERISA [29 U.S.C.
Section 1104(a)(1)(B)], but not any other provisions of ERISA (the
"Contractual Non-ERISA Standard of Care," together with the
Contractual ERISA Standard of Care, the "Contractual Standard of
Care").
The LLC Agreement states that when the Fund assets were not plan
assets under ERISA, the Defendant could "consider its own
interests" when making decisions in its "discretion."
The Defendant did not receive a flat asset-based fee to manage the
Funds. Instead, it received a performance-based fee, equal to 30
percent of the Fund's quarterly returns in excess of the relevant
benchmark index, but only if those returns exceeded the aggregate
amount of any past underperformance from prior periods when
compared to the benchmark index. As such, if the Defendant
underperformed, it received nothing--and would have to recover the
amount of any underperformance before it could begin receiving fees
again.
The Funds were exempt from registration under the Securities Act of
1933 and the Investment Company Act of 1940 because, inter alia,
interests in the Funds were sold only to sophisticated investors,
who understood the nature of the investment, did not require more
than limited liquidity in the investment and could bear the
economic risks of the investment, including loss of principal. As
such, Fund investors, including the Plaintiffs, were required to be
"accredited investors" under the Securities Act and "qualified
clients" under the Investment Advisers Act.
Similarly, in signing the Subscription Agreement, each Plaintiff
represented that it had made an independent decision to invest in
the Fund and that, in making its decision to subscribe for an
Interest, the Investor [i.e., the Plaintiff] has relied solely upon
the PPM, the LLC Agreement and independent investigations made by
the Investor. The PPM included disclosures about the risks
Plaintiffs undertook in investing in the Funds, including that
unexpected volatility in the markets in which the Funds directly or
indirectly hold positions could impair the Funds' ability to carry
out their business or cause them to incur losses.
The Funds' Collapse
The Plaintiffs allege that throughout 2019 and 2020, the Defendant
secretly abandoned its investment and risk management strategies.
They allege that these changes constituted imprudent, disloyal
actions that subjected the Plaintiffs' investments in the Funds to
undisclosed risk and ultimately led to the massive losses the Funds
incurred in February and March of 2020.
The Plaintiffs allege that Defendant made these changes because
doing so was cheaper than implementing the risk management
practices that the Defendant had promised to maintain, and,
further, that these activities allowed the Defendant to inflate
profits from its range-bound and directional spreads, while still
claiming that it was managing risk. More importantly, the
Plaintiffs allege that each of these actions left the portfolio
effectively unhedged and exposed to losses far beyond those the
Defendant had presented as possible. In consequence, the Plaintiffs
allege that going into late February and early March 2020, the
Funds were highly exposed to market volatility.
Throughout January and early February 2020, the Chicago Board
Options Exchange Volatility Index remained relatively low and the
S&P 500 remained relatively stable before the market began to
decline and volatility spiked in the second half of February and
March 2020. Yet despite the Defendant's knowledge in early February
2020 that COVID-19 would cascade throughout the global economy and
cause major disruption, rather than holding hedges to expiration to
lock in minimal losses, the Defendant sold the hedges it had in
place, replaced them with long puts much further out of the money,
and used the proceeds to close out existing positions and sell new
risk-bearing positions.
The Plaintiffs contend that the Defendant should have kept the
hedges in place and accepted modest losses to act in the best
interest of the Funds' investors, but that the structure of the
Defendant's performance-based compensation incentivized the
Defendant to take a risky gamble that the market would recover
quickly. The Defendant's bet on a market recovery only compounded
the Funds' losses.
By mid-March 2020, many of the Funds had suffered losses great
enough that they faced margin calls, lost most of their value, or
were liquidated completely. After two Funds were liquidated, the
Plaintiffs withdrew from the remaining Funds. The Plaintiffs
collectively lost more than $4 billion during February and March
2020.
Procedural Background
The Plaintiffs in the ATRS case initiated the first of the Related
Cases on July 20, 2020, and the Plaintiffs in the remaining cases
filed their initial complaints over the course of the following
three months, with the last of the Related Cases commenced on Nov.
30, 2020. On Sept. 11, 2020, the Court granted the Defendant's
request to delay briefing on the Defendant's anticipated motion to
dismiss in part until after the initial pretrial conference
("IPTC") in mid-November of that year, citing a desire to
coordinate motion practice and discovery in as many of the Related
Cases as possible, to the greatest extent possible.
On Nov. 17, 2020, the parties attended an IPTC conducted via
videoconference, at which conference the parties discussed, inter
alia, (i) pursuing consolidated motion practice due to the
significant overlap among Plaintiffs' claims, the Governing
Documents, and Defendant's anticipated grounds for dismissal; (ii)
streamlining the claims at issue by dismissing AllianzGI affiliates
from certain of Plaintiffs' complaints; and (iii) preparing a
proposed stipulation and order to govern discovery, the filing of
amended complaints, and Defendant's anticipated motions to dismiss.
The Defendant also indicated that it did not plan to move to
dismiss the Plaintiffs' claims that alleged breaches of the
Contractual Standard of Care.
The parties submitted their proposed case management plan and
scheduling order on Dec. 3, 2020, which plan the Court adopted with
slight modifications.
Over the course of the following several months, the Plaintiffs
voluntarily dismissed claims against the AllianzGI affiliates
without prejudice, filed amended complaints, and voluntarily
dismissed certain claims without prejudice to streamline litigation
in the Related Cases. The parties also began discovery.
The Defendant filed its consolidated motion to dismiss in part and
supporting papers on Feb. 25, 2021; the Plaintiffs filed their
consolidated opposition and supporting papers on April 26, 2021;
and the Defendant filed its reply on May 26, 2021. Accordingly, the
Defendant's motions to dismiss in part are fully briefed and ripe
for decision.
Discussion
The Defendant does not move to dismiss the Plaintiffs' claims
arising under Section 2.12 of the LLC Agreement for breach of the
Contractual Standard of Care. Rather, in the instant motion, the
Defendant asks the Court to "trim" the Plaintiffs' "blunderbuss"
complaints of the following claims: (i) common-law claims where
preempted by ERISA; (ii) breach of contract (and quasi-contract)
claims based on contractual duties purportedly arising from sources
other than Section 2.12; and (iii) tort claims (common-law
negligence and breach of fiduciary duty) as duplicative of the
Plaintiffs' ERISA or contract claims and for various other
reasons.
In a supplemental motion, the Defendant moves to dismiss Lehigh's
securities fraud, common-law fraud, and misrepresentation claims.
The Defendant moves to dismiss several of the Plaintiffs' state-law
claims.
The LLC and Subscription Agreements contain choice of law
provisions that specify that the documents are governed by Delaware
law, and the PPM is incorporated by reference into the Subscription
Agreement. The parties do not dispute that Plaintiffs' contract
claims are governed by Delaware law, and accordingly, the Court
applies Delaware law to resolve the Defendant's motion to dismiss
the Plaintiff's breach of contract claims. The Court also applies
Delaware law to the Plaintiffs' claims asserting breach of the
implied covenant of good faith and fair dealing.
The Plaintiffs' negligence claims are governed by New York law
because they allege that the tortious conduct (i.e., mismanagement
and related negligence) occurred in New York, where the Defendant
is headquartered, Judge Failla holds. The Court finds that to the
extent the Plaintiffs' common-law breach of fiduciary duty claims
are premised on duties the Defendant allegedly owed as an
investment advisor or pursuant to public policy, New York law
applies to those claims as well. Conversely, to the extent those
claims arise out of duties the Defendant owed as Managing Member of
the Funds, all of which were Delaware LLCs, Delaware law applies.
Judge Failla holds that the Defendant's motion to dismiss the
Plaintiffs' state-law claims as preempted by ERISA is denied as
premature. Accordingly, the Defendant's motion to dismiss on
preemption grounds is denied as premature.
Judge Failla rules that the Defendant's motion to dismiss the
Plaintiffs' contract claims is granted in part and denied in part.
Judge Failla finds that the Plaintiffs adequately plead contract
claims arising out of the Defendant's obligations under the PPM.
Accordingly, the Court declines to delineate the scope of the
Defendant's contractual obligations under those provisions on this
motion, and denies the Defendant's motion to dismiss the
Plaintiff's breach of contract claims to the extent they are
premised on the Defendant's purported breach of its commitments (i)
that the assets of the Funds be invested in accordance with the
investment policies and objectives in the PPM, or (ii) to implement
the Funds' investment strategy.
The Court finds that the Plaintiffs adequately plead certain
failure to notify claims. While the Defendant argues that by
February 2020, the Plaintiffs would have been unable to take any
action to respond to the change in strategy and would have incurred
losses even with notice, the Court cannot draw that inference in
the Defendant's favor on a motion to dismiss. Accordingly, the
Defendant's motion to dismiss the Plaintiffs' breach of contract
claims for failure to notify is denied, except as to BCBS.
The Court also finds that the Plaintiffs adequately plead certain
breach of implied covenant of good faith and fair dealing claims.
In sum, the Court dismisses claims for a breach of the implied
covenant of good faith and fair dealing in the FFLD/NEHC and
TMRT/BLYR actions, but denies the motion to dismiss as to the IBEW,
Lehigh, and MTA actions.
Judge Failla rules that the Defendant's motion to dismiss the
Plaintiffs' tort claims is granted in part and denied in part. The
Plaintiffs assert state-law claims for negligence and breach of
fiduciary duty that exist separately from their claims of breach of
the Contractual Standard of Care.
The Defendants move to dismiss these claims on myriad grounds,
arguing that: (i) the claims are not "direct" and belong to the
Funds, not the Plaintiffs; (ii) the claims are duplicative of the
Plaintiffs' breach of contract claims; and (iii) the economic loss
doctrine bars the Plaintiffs' tort claims.
The Court agrees in part, and:
-- grants the Defendant's motion to dismiss as to the
Plaintiffs' tort claims to the extent premised on
mismanagement as impermissibly duplicative;
-- denies the Defendant's motion to dismiss as to the
Plaintiffs' negligence claims to the extent premised on a
duty imposed by the Defendant's extracontractual
representations; and
-- grants the Defendant's motion to dismiss as to the
Plaintiffs' breach of fiduciary duty claims in part as
duplicative and in part as derivative.
Judge Failla also grants in part and denies in part the Defendant's
motion to dismiss the Plaintiffs' self-dealing claims. The
Plaintiffs allege that the Defendant violated its duty of loyalty
by, for example: (i) abandoning its risk management strategy in the
hopes of chasing additional return; (ii) failing to disclose
material facts; and (iii) further repudiating its risk management
strategy in late February and early March 2020 precisely because
the Funds' compensation structure would prevent the Defendant from
earning compensation unless it gambled with the Plaintiffs'
investments.
These allegations suffice to plead that the Defendant acted against
the Funds' interest with the purpose of benefiting itself, Judge
Failla holds, citing Moreno v. Deutsche Bank Ams. Holding Corp.,
No. 15 Civ. 9936 (LGS), 2016 WL 5957307, at *6 (S.D.N.Y. Oct. 13,
2016).
Similarly, the Court finds, the Plaintiffs adequately allege that
the Defendant violated Section 406 of ERISA, 29 U.S.C. Section
1106(b), which prohibits a plan fiduciary from engaging in certain
prohibited transactions, including by dealing with the assets of
the plan in his own interest or for his own account. The
Plaintiffs' contention that the Defendant managed the Funds against
the Plaintiffs' interests in order to preserve its own ability to
profit from managing the Funds adequately pleads a prohibited
transaction, and the Defendant's motion to dismiss Plaintiffs'
Section 406 claims is denied.
The Defendant separately moves to dismiss claims brought by Lehigh
for securities fraud pursuant to Section 10(b) of the Securities
Exchange Act, common-law fraud, and negligent misrepresentation. In
brief, Lehigh alleges that the Defendant wrongfully concealed
material changes to its investment strategy at least as early as
March 2019, inducing Lehigh to make additional investments in the
Funds and denying Lehigh the opportunity to exit the Funds.
The Defendant argues that dismissal is warranted because: (i)
Lehigh's additional investment in the Funds took place before the
Defendant's purported misconduct occurred; (ii) Lehigh's holder
claims are barred by New York law; and Lehigh fails to adequately
plead: (iii) material misrepresentation, (iv) scienter, and (v)
reliance. The Court denies the Defendant's supplemental motion.
According to its First Amended Complaint (or "FAC"), Lehigh began
investing in one of the Funds in 2011. It transferred its
investment to a different Fund in 2013; increased its investments
in that Fund in 2015 and 2016; and then transferred $35 million
into a third Fund over the course of four transactions in March,
April, May, and November 2019.
Judge Failla finds that Lehigh's 2019 investment does not post-date
the Defendant's purported fraud or misrepresentations. Thus, the
Court declines to limit Lehigh's claims arising out of its 2019
investments in the Global Fund. Judge Failla also finds that
Lehigh's "Holder" claim is not barred by New York law. Thus,
because Lehigh alleges specific, verifiable out-of-pocket losses
associated with the Defendant's purported fraud and
misrepresentation, dismissal for violation of New York's
out-of-pocket rule is inappropriate.
Judge Failla also holds, among other things, that Lehigh adequately
pleads actionable misrepresentations and adequately pleads
scienter. In sum, Lehigh has adequately pleaded the requisite
elements of its securities fraud, common-law fraud, and negligent
misrepresentation claims. Therefore, the Defendant's supplemental
motion to dismiss those claims must be denied.
The Court Grants Leave to Amend in Part
The Plaintiffs request leave to amend their pleadings to the extent
the Court has concluded that their claims are deficient.
Given the opportunities to amend the Plaintiffs have already been
afforded, as well as the granularity with which the Defendant's
dismissal arguments were discussed at the pre-motion conference,
the Court is reluctant to grant the Plaintiffs open-ended leave to
amend their pleadings. However, the Court is cognizant that the
Plaintiffs may have come into possession of meaningful information
either during the briefing schedule or subsequent to the completion
of their briefing. Indeed, at least one Plaintiff has indicated as
much.
To account for this possibility, the Court will permit the
Plaintiffs leave to amend insofar as they have acquired additional
documents that may serve as a basis for amendment, or for other
similar good cause shown. The Court adopts this approach to balance
the liberal amendment standard with the risk of undue prejudice
that may flow to the Defendant from permitting the Plaintiffs, some
of whom have already amended, a chance to do so yet again,
irrespective of whether they have come into possession of
additional information.
Conclusion
For the reasons set forth, the Defendant's motions to dismiss are
granted in part and denied in part as set forth in this Opinion.
The Plaintiffs are ordered to notify the Court, on October 30,
2020, regarding whether they will file amended pleadings.
The Clerk of Court is directed to docket the Opinion in case
numbers No. 20 Civ. 5615, No. 20 Civ. 5817, No. 20 Civ. 7061, No.
20 Civ. 7154, No. 20 Civ. 7606, No. 20 Civ. 7842, No. 20 Civ. 7952,
No. 20 Civ. 8642, No. 20 Civ. 9478, No. 20 Civ. 9479, No. 20 Civ.
9587, and No. 20 Civ. 10028.
The Clerk of Court is further directed to terminate the motions
pending at No. 20 Civ. 5615, Dkt. #82; No. 20 Civ. 5817, Dkt. #54;
No. 20 Civ. 7061, Dkt. #54; No. 20 Civ. 7154, Dkt. #70; No. 20 Civ.
7606, Dkt. #71; No. 20 Civ. 7842, Dkt. #52; No. 20 Civ. 7952, Dkt.
#70; No. 20 Civ. 9478, Dkt. #62; No. 20 Civ. 9479, Dkt. #62; No. 20
Civ. 9587, Dkt. #51; and No. 20 Civ. 10028, Dkt. #44.
A full-text copy of the Court's Opinion and Order dated Sept. 30,
2021, is available at https://tinyurl.com/42cdbj77 from
Leagle.com.
ALTICE USA: Barber Shop Owner Seeks $20M Damages in COVID-19 Suit
-----------------------------------------------------------------
Jeff baumgartner at lightreading.com reports that a barber shop
owner in the Bronx has slapped Altice USA with a class action suit
seeking a $20 million judgment over allegations that the service
provider did not live up to its commitment to the FCC's "Keeping
Americans Connected" pledge by terminating phone and broadband
services, and then seeking additional fees to get those services
restored.
The suit, filed October 6 on behalf of Artem Shalomayev in the
Eastern District of New York, alleges that Altice USA "exploited
the COVID-19 pandemic for profits, causing severe damages to small
businesses in New York and the United States."
Altice USA has been asked for comment.
The complaint stems back to an FCC program launched March 13, 2020
that called on service providers to agree not to terminate services
for residential and small business owners during the pandemic due
to financial constraints, and to likewise waive any late fees for
that group - until at least June 15, 2020. Dozens of US service
providers, including Altice USA, backed the program, with many also
extending certain commitments to the Pledge through the rest of
2020.
The suit notes that Shalomayev was forced to close his barber shop
for almost four months in 2020 amid state shutdown orders for
businesses deemed "non-essential." Upon returning to the barber
shop in June 2020, Shalomayev claims he was greeted with three
invoices, from March through June 2020, from Altice USA for
Internet and phone services that Shalomayev had no use for during
that period. He claims he likewise discovered that services from
the operator had been terminated.
The complaint holds that Shalomayev proceeded to inquire with
Altice USA about the situation and was told that, regardless of the
Pledge, small business customers were still obligated to pay their
bills in a timely manner and that failing to do so would
automatically result in termination of services.
Shalomayev claims that situation forced him to pay the outstanding
bills to Altice USA and also to pay a "one time activity" fee of
$180 to reactivate phone and broadband services. He claimed further
that Altice USA told him the company had to perform an installation
of new equipment in order to restore services at Shalomayev's shop.
The suit also holds that the barber shop owner had previously paid
a one-time activity fee and an installation fee back in February
2020, when the shop's service plan with Altice USA was upgraded.
"Altice not only sought to recoup payments for the charges which it
had pledged not to collect, but worse still, Altice coerced small
businesses into entering new service agreements - imposing an
exorbitant one-time 'start-up' fee - in order to restart their
telephone and Internet services for their businesses," the suit
alleges.
The class action suit is seeking a judgment of $20 million - $10
million for actual and statutory damages, $10 million for punitive
damages, plus attorney fees and other expenses.
"We estimate tens of thousands of businesses have been affected,"
Jon Norinsberg, attorney for Shalomayev, said in a statement. [GN]
AMAZON.COM SERVICES: Puentes Suit Removed to W.D. Washington
------------------------------------------------------------
The case styled as Alejandro Garcia Puentes, on behalf of himself,
and all others similarly situated v. Amazon.com Services LLC,
Amazon Flex, a business entity of unknown form, Amazon Logistics
Inc., Does 1 through 20, inclusive, Case No. 2:21-cv-00414 was
removed from the United States District Court for the Central
District of California to the United States District Court for the
Western District of Washington on Sept. 30, 2021.
The District Court Clerk assigned Case No. 2:21-cv-01370 to the
proceeding.
The nature of suit is stated as Other Labor.
Amazon Services LLC -- https://www.amazon.com/ -- offers many of
the Web service platforms that are Amazon offer.[BN]
The Plaintiff is represented by:
Ramin R Younessi, Esq.
Jason James Buccat, Esq.
Liliuokalani Martin, Esq.
Mae-Elaine Q Del Santos, Esq.
LAW OFFICES OF RAMIN R. YOUNESSI APLC
3435 Wilshire Boulevard, Suite 2200
Los Angeles, CA 90010
Phone: (213) 480-6200
Fax: (213) 480-6201
Email: ryounessi@younessilaw.com
jbuccat@younessilaw.com
lmartin@younessilaw.com
mdelossantos@younessilaw.com
- and -
Zekiah N Wright, Esq.
DOWNTOWN L.A. LAW GROUP, LLP
601 North Vermont Avenue
Los Angeles, CA 90004
Phone: (213) 465-2608
Fax: (877) 389-2775
Email: zwright@younessilaw.com
The Defendant is represented by:
Lauren M. Blas, Esq.
Michael J. Holecek, Esq.
GIBSON DUNN AND CRUTCHER LLP
333 South Grand Avenue
Los Angeles, CA 90071-3197
Phone: (213) 229-7000
Fax: (213) 229-7520
Email: lblas@gibsondunn.com
mholecek@gibsondunn.com
- and -
Megan M Cooney, Esq.
GIBSON DUNN & CRUTCHER (IRVINE)
3161 MICHELSON DR STE 1200
IRVINE, CA 92612-4412
Phone: (949) 451-4087
Email: MCooney@gibsondunn.com
AMAZON.COM: Vance Seeks to Certify Class of Illinois Residents
--------------------------------------------------------------
In the class action lawsuit captioned as STEVEN VANCE, et al., v.
AMAZON.COM, INC., Case No. 2:20-cv-01084-JLR (W.D. Wash.), the
Plaintiffs ask the Court to enter an order:
1. certifying the proposed Classes:
-- Class
"All Illinois residents whose faces appear in
photographs linked to in the DiF Dataset Defendant
obtained;" and
-- Alternative Subclass
"All Illinois residents whose faces appear in
photographs linked to in the Diversity in Faces (DiF)
Dataset Defendant obtained and who uploaded the
photographs to Flickr;"
2. appointing Steven Vance and Tim Janecyk to represent the
Classes; and
3. appointing Carlson Lynch LLP and Loevy & Loevy as Class
Counsel.
This case arises out of the alleged unlawful obtainment by Amazon
in 2019 of the biometric identifiers and biometric information
("Biometric Data") of Illinois residents through its acquisition of
the DiF Dataset.
The DiF Dataset was released by International Business Machines
Corporation ("IBM") in 2019 and consisted of, inter alia: (a) URL
links to approximately one million photographs posted on the
photo-sharing website Flickr that contained facial images; and (b)
Biometric Data related to those linked images -- e.g., facial key
points extracted via a scan of the face geometry of the facial
images and related craniofacial measurements. By obtaining and
using the DiF Dataset without providing notice to, or obtaining the
written consent of, Illinois residents whose Biometric Data was
contained in the dataset, Defendant: (a) deprived those residents
of their ability to control their Biometric Data; (b) violated
Illinois' Biometric Information Privacy Act ("BIPA"), which
provides special protections of the data at issue; and (c) unjustly
enriched itself.
On July 14, 2020, the Plaintiffs filed this putative class action
against Defendant for its unlawful conduct, alleging, among other
things, a violation of BIPA section 15(b) (Count One) and unjust
enrichment (Count Three). Resolution of the merits of those claims
is not presently before the Court.
Amazon.com, Inc. is an American multinational technology company
which focuses on e-commerce, cloud computing, digital streaming,
and artificial intelligence.
A copy of the the Plaintiffs' motion to certify class dated Oct. 7,
2021 is available from PacerMonitor.com at https://bit.ly/3APA0gd
at no extra charge.[CC]
The Plaintiffs are represented by:
Scott R. Drury, Esq.
David B. Owens, Esq.
Mike Kanovitz, Esq.
LOEVY & LOEVY
100 S. King Street, Suite 100
Seattle, WA 98104
Telephone: (312) 243-5900
Facsimile: (312) 243-5092
E-mail: david@loevy.com
drury@loevy.com
mike@loevy.com
- and -
Katrina Carroll, Esq.
Nicholas R. Lange, Esq.
Gary Lynch, Esq.
CARLSON LYNCH LLP
111 West Washington Street, Suite 1240
Chicago, IL 60602
Telephone: (312) 750-1265
E-mail: kcarroll@carlsonlynch.com
nlange@carlsonlynch.com
glynch@carlsonlynch.com
AMCOL SYSTEMS: Nyanjom Files FDCPA Suit in D. Kansas
----------------------------------------------------
A class action lawsuit has been filed against AMCOL Systems, Inc.
The case is styled as Harold M. Nyanjom, on behalf of himself and
others similarly situated v. AMCOL Systems, Inc., Case No.
6:21-cv-01247 (D. Kan., Oct. 12, 2021).
The lawsuit is brought over alleged violation of the Fair Debt
Collection Practices Act.
AMCOL Systems -- https://www.amcolsystems.com/ -- is a health
insurance agency in St. Andrews, South Carolina.[BN]
The Plaintiff is represented by:
Anthony E. LaCroix, Esq.
LaCROIX LAW FIRM, LLC
1600 Genessee, Suite 956
Kansas City, MO 64102
Phone: (816) 399-4380
Fax: (816) 399-4380
Email: tony@lacroixlawkc.com
AMERICAN HONDA: Discovery Replies Partly Compelled in Caracci Suit
------------------------------------------------------------------
In the case, JAY CARACCI, Plaintiff v. AMERICAN HONDA MOTOR
COMPANY, INC., Defendant, Case No. 19-cv-2796 (N.D. Ill.),
Magistrate Judge Jeffrey I. Cummings of the U.S. District Court for
the Northern District of Illinois, Eastern Division:
(i) granted in part and denied without prejudice in part Jay
Caracci's motion to compel the Defendant to produce
amended discovery responses; and
(ii) granted the Plaintiff's motion for leave to file a second
supplement to his motion to compel.
Background
Mr. Caracci alleges in his Second Amended Complaint that he
purchased a 2015 Honda CR-V from Honda on Nov. 17, 2015. In
connection with this purchase, Honda issued a three-year "new
vehicle warranty," which covered electrical wiring but excluded
damage caused by "acts of nature." In December 2017 -- two years
after purchasing the CR-V -- Caracci experienced a complete loss of
power steering while operating the vehicle. When he took the
vehicle in for inspection, Honda staff informed him that the CR-V's
electrical wiring "had been chewed and/or eaten." Specifically, the
Torque Sensor Harness ("part 22") and the Motor ("part 23") of the
vehicle's Power Steering Gearbox had been damaged by rodent
chewing. Though the new vehicle warranty remained in effect, Honda
informed Caracci that the chewing damage constituted an "act of
nature" and was not covered by the warranty. Caracci paid for the
repairs himself.
Prior to Caracci's purchase of his CR-V, Honda had begun the
process of making its vehicles more "eco-friendly." In pursuit of
this goal, Honda allegedly sought out suppliers who "used
epoxidized soybean oil and other bio-based parts" for its
electronic power steering gearbox parts. It has received hundreds
of complaints regarding extensive damage from rodents and some
consumers have speculated the damage is connected to Honda's shift
to eco-friendly materials.
Mr. Caracci further alleges that Honda began developing a potential
solution in the form of "Rodent Tape," which could be wrapped
around wiring to deter rodent attacks. Honda directed one of its
suppliers to apply Rodent Tape to a knock sensor harness in other
Honda vehicles, but not to harnesses within the 2015-2018 CR-V's.
Moreover, Honda did not instruct CR-V customers to apply the tape
as a preventative measure, nor did it inform customers that repairs
for such damage would not be covered under its warranty agreement.
Mr. Caracci filed the putative class action against Honda alleging
that Honda violated the Illinois Consumer Fraud and Deceptive
Business Practices Act ("ICFA"), 815 ILCS 505/2, and breached its
implied and express warranties.
In Count I, Caracci alleges that Honda violated the ICFA by failing
to take action to protect the wiring prior to sale or cover
expenses for damage from these attacks, despite its knowledge that
the electrical wiring connected to its engine compartments was
vulnerable to rodent chewing. Caracci further alleges that Honda's
failure to adequately inform consumers that (1) the wiring system
was vulnerable to rodent attack; (2) Rodent Tape should be applied
as a preventative measure; or (3) Honda would consider repairs
necessitated by rodent damage to be "acts of nature" outside the
scope of the warranty coverage, constituted "unfair acts" in
violation of the ICFA.
In Count II, Caracci alleges that Honda breached its implied
warranty of merchantability and fitness for ordinary purpose by
selling cars that "include wiring that acts as food for rodents"
and then failing to repair or replace the damaged wiring and
component parts.
Finally, in Count III, Caracci alleges that Honda breached its
express "new vehicle" warranty when it refused to cover rodent
damage that was caused, not by an act of nature, but by "a failure
in Honda's product materials." Caracci seeks damages and legal
costs.
Discovery in the matter is ongoing. Caracci served his first set of
written discovery in October 2019. Honda served its initial
interrogatory answers on Nov. 14, 2019 and its document production
response on Feb. 21, 2020. After the parties met and conferred,
Honda provided amended discovery responses in May 2020 and July
2020.
The instant motion to compel was filed on Oct. 22, 2020. Since this
motion was filed, discovery has continued to progress. On Oct. 29
and 30, 2020, Honda supplemented its document production with
15,410 pages of additional documents. On Dec. 11, 2020, Caracci
filed a supplement asking the Court to compel Honda to produce
specific testing data from one of Honda's Japanese suppliers,
Sumitomo, as well as any other rodent or "chew" testing data in
Honda's possession performed by any other supplier since 2003.
Caracci asserts this data is relevant to Interrogatory No. 24 and
Document Production Requests Nos. 26 and 31.
Analysis
Mr. Caracci asserts that Honda's responses to (1) Interrogatory No.
9; (2) Document Production Request No. 38; and (3) Interrogatory
No. 24 and Document Production Requests Nos. 26 and 31 remain
deficient. These requests seek the following
information/documents:
a. Interrogatory No. 9: State whether there were any tests or
inspections concerning use, safety, environmental impact, and/or
durability conducted on any of the P.S. Gearbox components and
describe when such tests were performed and whether the results are
in Honda's possession.
b. Document Production Request No. 38: All studies or expert
reports commissioned by Honda relating to the use of soy-based
epoxy coating in vehicle wiring.
c. Interrogatory No. 24: Identify the creator of the product
now known as Honda Rodent Tape, describe when Honda first began
branding Rodent Tape as its own, and from whom Honda obtained the
branding rights.
d. Document Production Request No. 26: All documents
discussing Honda's marketing, sale, and distribution of
Honda-branded Rodent Tape.
e. Document Production Request No. 31: All correspondence
with the original manufacturer(s) and supplier(s) of Honda-branded
Rodent Tape relating to its use, functionality, composition, and
application.
Mr. Caracci seeks an order compelling Honda to supplement its
answers and responses to these requests and, where warranted, to
produce a privilege log detailing its claims of privilege. Judge
Cummings addresses each category of requests in turn and agrees --
at least in part -- that further supplementation is required.
A. Honda must provide a revised answer to Interrogatory No. 9.
Honda asserts that this interrogatory is overly broad and seeks
responsive information that is protected by the attorney work
product doctrine, the attorney client privilege, and/or the
consulting expert privilege. Caracci responds that the scope of the
interrogatory is sufficiently tailored because it is limited to the
39 parts of the Gearbox, rather than the CR-V as a whole.
First, Judge Cummings finds it helpful to consider Interrogatory
No. 9 in the context of what Caracci hopes information obtained
through discovery will explain: namely, why parts 22 and 23 of the
Gearbox were susceptible to chewing. Accordingly, he overrules the
"scope of the damage" portion of Honda's objection and finds that
Honda has inappropriately limited its disclosures to information on
parts 22 and 23 of the Gearbox.
Second, Judge Cummings finds that Interrogatory No. 9 is, indeed,
overbroad considering the type of the damage at issue in the case.
Nonetheless, he orders Honda to amend its answer to Interrogatory
No. 9 on or before Oct. 27, 2021 by: (1) stating whether any tests
or inspections concerning rodent damage have been conducted on any
of the P.S. Gearbox components; (2) describing when such tests were
performed; and (3) stating whether the results of any such tests
are in Honda's possession. This information, he says, is clearly
relevant to Caracci's claims and the Court notes that Honda has not
argued the production of such an answer would be overly
burdensome.
Third, if Honda maintains that Interrogatory No. 9 seeks privileged
information, it must submit a privilege log, Judge Cummings finds.
The Juduge explains that Honda has not made any disclosures that
would allow Caracci -- or the Court -- to determine what documents
are at issue or even whether any responsive documents exist at all.
Thus, the Judge grants this part of Caracci's motion and orders
Honda to answer Interrogatory No. 9 as limited. He doubts that
answering this interrogatory will reveal any privileged information
because the interrogatory requests essentially the same information
that must be disclosed in a privilege log under Rule 26(b)(5):
namely, whether the specified tests were performed, when they were
performed, and whether Honda possesses the results.4 Nonetheless,
if Honda persists in its belief that answering this interrogatory
would reveal privileged information, it must produce a privilege
log that is compliant with Federal Rule of Civil Procedure
26(b)(5).
B. Caracci's request for the production of studies on the use of
soy-based epoxy coating (Request No. 38) is denied in light of
Honda's amended disclosures.
In Request for Production No. 38, Caracci originally sought "all
studies or expert reports commissioned by Honda relating to the use
of soy-based epoxy coating in vehicle wiring." Honda committed to
producing only "documents concerning studies or expert reports
commissioned in the regular course of business, if any, relating to
the alleged presence of soy-based wiring insulation in the Torque
Sensor Harness [part 22] or rodent damage to the Torque Sensor
Harness in 2015-2016 CR-Vs." Shortly after Caracci filed the motion
to compel, Honda served an amended response stating that "there are
no responsive documents relating to the two parts at issue."
Later in the discovery process, Honda made another disclosure
regarding the presence of soy-based wiring in the Gearbox as a
whole (rather than only part 22). In its reply to Caracci's
supplement, Honda stated that it had produced evidence to Caracci
proving "there was no soy in the wiring contained anywhere in
Plaintiff's original equipment electronic power steering gear box."
If that is correct, Honda has no documents in its possession that
are responsive to Request No. 38. To eliminate any question on this
issue, Judge Cummings orders Honda is ordered to certify, by Oct.
19, 2021, that it did not use soy-based epoxy in any of the
2015-2016 CR-V Gearbox components.
C. Honda must produce the Sumitomo testing documents and any other
rodent tape-related testing data it received from other suppliers.
Judge Cummings finds that discovery should not be limited to the
two parts chewed in Caracci's own vehicle though it must be focused
on information related to Caracci's theory of liability. He states
that this theory is not limited to the chemical composition of the
vehicle's parts. Rather, any evidence related to Honda's alleged
failure to take preventative action to protect CR-V consumers from
foreseeable rodent damage is relevant. This includes its decision
to develop Rodent Tape and apply it to some wires, but not others,
before sale. Accordingly, Judge Cummings finds that Honda must
produce the Sumitomo testing documents referenced by Golding and
any other rodent or "chew" testing results performed by Honda's
other suppliers and given to Honda in the regular course of
business since 2003. The chemical composition of the wires used in
the rodent tape tests is irrelevant to whether such tests must be
produced.
Conclusion
For the foregoing reasons, Judge Cummings granted in part the
Plaintiff's motion to compel. By Oct. 27, 2021, the Defendant is
ordered to amend its answer to Interrogatory No. 9 and to produce
the Sumitomo testing documents referenced by Golding and any other
rodent or "chew" testing results performed by Honda's other
suppliers (Nippon Seiko Co., Ltd., NSK Steering System America
Inc., or American Showa Blanchester) since 2003. Honda must also
certify that there is no soy-based epoxy in any Gearbox components
by Oct. 21, 2021. The Plaintiff's motion to compel is otherwise
denied. The Plaintiff's motion for leave to file a second
supplement to his motion to compel is granted.
A full-text copy of the Court's Sept. 29, 2021 Memorandum Opinion &
Order is available at https://tinyurl.com/237mpsv7 from
Leagle.com.
AMERICAN HONDA: Faces Class Action Over Civic Refrigerant Leaks
---------------------------------------------------------------
David A. Wood, writing for CarComplaints.com, reports that if your
Honda Civic AC is not working, two lawsuits have been consolidated
into one class action lawsuit related to 2016-2020 Honda Civic (2-
and 4-Door), 2017-2021 Honda Civic (Hatchback) and 2017-2021 Civic
Type R cars.
Eleven Honda Civic owners filed the lawsuit alleging their air
conditioners stopped working due to cracks and leaks of refrigerant
which caused a loss of pressure within the AC systems.
The consolidated Civic AC class action includes plaintiffs in two
related actions: Wong v. American Honda, and Munoz v. American
Honda.
A separate case, Elkins v. American Honda, had already been
dismissed by the same judge now hearing the consolidated class
action lawsuit.
The new class action includes these 11 plaintiffs who allege their
Honda Civic AC systems stopped working.
Andre Wong / California / 2016 Honda Civic
Amado Munoz / California / 2017 Honda Civic
Frank Costobile / Pennsylvania / 2016 Honda Civic
Rachel Fairchild / Florida / 2016 Honda Civic
Carolyn Heier / Virginia / 2016 Honda Civic
Ben Hu / California / 2016 Honda Civic
Matthew Robinson / Florida / 2016 Honda Civic LX
Michael Schwartz / Oregon / 2017 Honda Civic
Gary Tetrault / Connecticut / 2016 Honda Civic
James Tillery / Virginia / 2016 Honda Civic
Lingyang Yin / Washington / 2016 Honda Civic
The Honda Civic customers who allege their AC stopped working claim
Honda knows about the problems but won't recall the cars to fix
them properly.
The class action also alleges the Civics use R-1234yf refrigerant
which is supposed to be more friendly to the environment than
R-134a refrigerant. However, the Honda class action alleges the AC
stops working because the system can't handle the R-1234yf
refrigerant, causing the AC to stop working to cool the Civic
cabin.
Leaks in the condensers or compressors cause AC problems, but the
plaintiffs claim failures can also occur to the evaporators and
discharge and suction lines.
Additionally, the lawsuit alleges dealers often claim the AC
stopped working because of impacts with road debris, and sometimes
dealers allegedly tell Civic owners no leaks can be found.
Honda Civic AC Failures Under Warranty
If a Honda Civic owner visits a dealership to repair the AC that
stopped working, those owners are allegedly charged diagnostic fees
even when the cars are covered by warranties.
Honda Civic owners allegedly pay $150 to $2,000 to repair the AC
systems when they stop working, and the repairs are also allegedly
useless because Honda uses the same defective parts as
replacements.
"Regardless of whether Honda provides warranty coverage for one
failed component or claims it has permanently repaired the AC
System, its repair efforts typically prove ineffective: other AC
System components invariably fail outside the warranty period,
forcing Class members into a never-ending and expensive game of
whack-a-mole involving a vehicle for which they have already paid
tens of thousands of dollars." -- Honda Civic AC class action
lawsuit
Replacement air conditioning parts are allegedly on backorder
because so many Civic cooling systems have defects that cause the
systems to fail. Civic owners are allegedly faced with either going
without the AC or purchasing aftermarket components at their own
expense.
Then Honda's warranties allegedly claim the use of aftermarket
parts to repair the AC systems will preclude Honda Civic customers
from participating in any recall campaigns.
According to the consolidated class action lawsuit:
"Honda did not disclose any of the Defect's potential failure modes
to prospective customers until three months after the filing of the
original complaint in Elkins v. Honda when it issued TSB 19-091,
extending the warranty on the AC condenser only to 10 years from
the original date of purchase on Model Year 2016-2018 Honda Civic
vehicles." -- Honda Civic AC class action
The TSB (technical service bulletin) says, "[t]he A/C condenser was
not manufactured to specification. As a result, tiny holes may
develop in the condenser tube walls that allows the refrigerant to
leak out."
The plaintiffs claim Honda used the TSB as the main reason the
Elkins case should be dismissed, and it was dismissed. But the
current lawsuit alleges the extended warranty and free repairs
offered by Honda didn't include all the affected vehicles.
"Honda also concealed that the problem was not limited to the AC
condenser as it had represented in TSB 19-091 and to this Court,
but rather, that AC compressors had been failing in record numbers
as well. Honda was aware of this at least prior to December 20,
2019, when it first informed its American dealerships it had become
aware of 'an unprecedented demand for A/C compressors which, at
times has created a backorder situation.'" -- Honda Civic AC
lawsuit
Honda later issued TSB 21-014 to include more vehicles, but the
lawsuit alleges the bulletin fails to properly address the AC
problems.
The Honda Civic AC lawsuit was filed in the U.S. District Court for
the Central District of California: Wong, et al., v. American Honda
Motor Co., Inc., et al.
The plaintiffs are represented by McCune Wright Arevalo LLP,
Milberg Coleman Bryson Phillips Grossman PLLC, Bradley/Grombacher
LLP, Cafferty Clobes Meriwether & Sprengel LLP, and Berger Montague
PC. [GN]
AMPLIFY ENERGY: Huntington Beach Businesses File Oil Spill Lawsuit
------------------------------------------------------------------
Attorneys representing several beach businesses in Orange County
announced that they've filed a class action lawsuit against Amplify
Energy and it's subsidiaries for the financial loss suffered
following the oil spill off the coast.
The suit was filed on behalf of Banzai Surf School and other local
business owners.
With beaches still off limits to surfers, swimmers and boaters, the
lack of traffic in the area means fewer dollars for numerous shops
like Trip Outdoor. Owner Billy Stade said his business has dropped
by some 90%.
"It's a ghost town. There's nobody here. We're hoping for a swift
cleanup. We're hoping authorities respond responsibly," Stade
said.
As cleanup efforts continue in Huntington Beach, the city announced
the cancellation of several popular events, including the Rockin'
Fig Vintage Surf Festival, Surf City Days and the Huntington Beach
Surf Contest. An additional three events scheduled for this month
have also been postponed.
The mayor estimates financial losses have already reached the
hundreds of thousands of dollars and said it's the local merchants
who really suffer in situations like this.
"These were events that the locals were looking forward to and we
know that there's visitors from out of town that come in, that
reserve hotels for this. And obviously all of the bars and
restaurants in the area, they all gear up for these big events. So,
it's really unfortunate we have to cancel all these things right
now," Huntington Beach Mayor Kim Carr said.
Additional events could be affected until crews remove enough of
the oil that spilled into waters off OC.
As for Stade, he's hoping for the beaches can be safely opened as
soon as possible.
"A few weeks we could handle, but months could be detrimental to
our business," he said.
Attorneys said more businesses, like lobster and clam fisherman,
are expected to join the class-action lawsuit. [GN]
AMPLIFY ENERGY: Seafood Cos. Among Oil Spill Class Suit Plaintiffs
------------------------------------------------------------------
Patch reports that Redondo Beach market Quality Seafood is among
plaintiffs in a proposed class-action suit against pipeline company
Amplify Energy Corp. on behalf of commercial fishing, diving and
seafood companies seeking damages for expected lost revenue as a
result of last weekend's massive oil spill.
Plaintiffs in the lawsuit include LBC Seafood Inc., a family-owned
wholesaler that purchases lobsters from fishers in Orange County
with sales to wholesalers and distributors who distribute the
product throughout California and the world.
Also named is Jack Buttler, a San Pedro-based urchin diver, and
Steve Legere, a lobster, crab, and sheephead fisher based out of
Marina del Rey and Newport Beach.
"We have brought this case on behalf of arguably the most affected
industry -- commercial fishers, divers, and retail and wholesale
markets," said Matthew Maclear, one of the plaintiffs' attorneys.
"This generational- defining event has impacted fishers, sellers
and consumers in profound ways that need to remedied promptly to
avoid collapse of one of Southern California's most diverse
fisheries. The pollution caused by the oil spill has had impacted
so many and our clients came together to protect their livelihoods
and Southern California's pristine coastline."
A message seeking comment from a representative of Amplify Energy
was not immediately answered.
According to the complaint, filed late on Oct. 8 in Santa Ana
federal court, many Quality Seafood customers are hesitant to
purchase seafood. With the opening last week of the commercial
lobster season -- which runs through March -- the market's owners
have "serious concerns that the economic loss from lobsters will be
enormous as recent and expected prices were predicted to be high,"
the suit states.
Losses from other types of seafood, including red snapper, halibut,
rock cod, sardines and anchovies were also expected.
As the spill has apparently tainted the waters from San Clemente to
Newport where he usually harvests urchins, Buttler now must drive
his boat to locations upward of 65 miles away to dive for the spiny
marine animal, according to the lawsuit.
The suit contends that Buttler typically sells 500-700 pounds of
urchin each week to Quality Seafood, and the spill has severely
disrupted his ability to continue generating the same or similar
income as compared to before the accident.
"Due to the spill, he is no longer permitted to harvest in the
areas upon which he relies, causing significant financial
hardship," attorneys for the plaintiffs wrote.
Prior to the spill, Legere expected to fish almost year-round for
sheephead, in addition to fishing during lobster and crab seasons
in what are now tainted waters, the suit alleges. In past seasons,
Legere would catch 500-600 pounds of lobster per day, but in the
opening days of the 2021-22 season, the catch is down by about
two-thirds, and the price has fallen correspondingly, according to
the lawsuit.
Legere believes the negative consequences of the spill "will
continue to impair his ability to earn a living catching sheephead,
lobster and crab indefinitely," the suit states.
Houston-based Amplify Energy's "acts and omissions have therefore
caused present injury to Legere, as well as the concrete risk of
imminent, additional injury," according to the complaint, which
seeks at least $5 million on behalf of the plaintiffs.
The ruptured underwater pipeline off the coast of Huntington Beach
that leaked thousands of gallons of oil into the ocean may have
been damaged several months to a year ago, the U.S. Coast Guard's
lead investigator said on Oct. 8, adding that it was unclear when
the crack occurred or when oil began seeping into the water.
Authorities estimated that as much as 144,000 gallons of oil may
have leaked from the damaged pipeline, but officials subsequently
said the actual amount is likely much lower, although there is
still no firm number. At a news conference on Oct. 7, the Coast
Guard estimated that roughly 588 barrels of oil had spilled, which
would equate to about 24,700 gallons. That's being considered a
minimum amount leaked, but officials were unsure of a possible
maximum number.
Crews responded to the leak on the morning of Oct. 2, and Orange
County beaches were quickly closed as authorities realized the size
and scope of the oil slick.
Laguna Beach has since reopened and Newport Beach offered some
access, with visitors welcome to go on the sand, but not in the
water. Newport Harbor also reopened on Oct. 8. [GN]
AMPLIFY ENERGY: Two Law Firms File Class Action Over Oil Spill
--------------------------------------------------------------
The law firms Lieff Cabraser and Robertson & Associates, LLP
announced the filing of a federal class action lawsuit in the
Central District of California on behalf of Davey's Locker
Sportfishing, Inc.; Blue Pacific Fisheries; Ivar Southern and Linda
Southern; Newport Landing Sportfishing, Inc.; San Pedro Bait Co.;
Donald C. Brockman, individually and as trustee of the Donald C.
Brockman Trust and Heidi M. Jacques, individually and as trustee of
the Heidi M. Brockman Trust; Gregory Hexberg, individually and as
trustee of The Gregory C. and Deborah L. Hexberg Family Trust,
individually and on behalf of others similarly situated, against
Amplify Energy Corporation, Beta Operating Company, and San Pedro
Bay Pipeline Company over the October 2021 pipeline rupture and
resulting catastrophic oil spill that dumped up to 131,000 gallons
of highly toxic crude oil. The spill killed fish and wildlife,
forced the closure of fishing blocks and harbors, and soiled
world-famous Southern California beaches and beachfront
communities.
As of a result of the spill, 23 miles of formerly pristine
California coastline, from Huntington Beach to Dana Point, were
restricted to the public as the oil spill engulfed beaches,
protected wetlands, and harbors. Tar balls likely related to the
spill also began washing up on San Diego's beaches.
As stated in the complaint, "On the evening of Friday, October 1,
2021, an offshore pipeline, owned and operated by Defendants,
ruptured. For Defendants, a major oil spill was only a matter of
time: federal agencies have cited Defendants for over 125 safety
and maintenance violations since 1980, including an oil spill. Of
these violations, 72 were so severe that drilling had to be stopped
and the problem fixed before operations could be resumed. The most
recent safety warning was issued on September 29, 2021, just days
before the spill."
What makes this failure and spill so disastrous is that this
pipeline runs under the Pacific Ocean through a precious maritime
ecosystem and nearby heavily populated Orange County.
"It is appalling that this spill by Amplify and its partners
occurred in the face of more than 125 prior safety and maintenance
violations," stated Lieff Cabraser partner Lexi J. Hazam, who
represents the plaintiffs. "These formerly pristine waters are home
to hundreds of sensitive animal species, including whales sea and
sea turtles, as well as schools of commercial fish and shellfish
that serve as the backbone for the local commercial fishing, sports
fishing and whale watching industries." These industries will
suffer harms for months if not longer, as the toxic oil fouls the
local ecosystems and fisheries.
These industries were not the only victims of this disaster.
Property owners and lessees along the coast saw gallons of toxic
crude oil wash onto their beaches, fouling their properties and the
water that they swim in, and tarnishing the sands and beach
activities they enjoy.
"I grew up in Newport and Laguna Beach, where I learned to surf and
fish as a teenager," stated Robertson & Associates partner
Alexander "Trey" Robertson IV, who also represents the plaintiffs.
"Anyone who has lived here understands how special it is, and has a
deep connection to the ocean and beaches. To think that this oil
spill could have been averted is deeply disturbing and I look
forward to helping hold the responsible parties accountable for
this horrific environmental disaster."
"It is perhaps most disturbing that Amplify and the other
co-defendants could have averted this monstrous spill," noted Lieff
Cabraser partner Robert J. Nelson, another attorney on the
plaintiffs' team. "Their failure to maintain and monitor the
pipeline led to its rupture. Moreover, their failure to discover
their own leak for many hours turned what could have been a
containable rupture into an unmitigated environmental disaster."
The Complaint goes on to note that Amplify and its partners "either
lacked or ignored the basic industry-standard safety equipment that
would have recognized the telltale signs of a spill: a decrease in
the pressure of the pipeline and a change in the flow rate of oil.
As recently as 2016, Defendants claimed that their safety system
would detect a spill of this magnitude in a matter of minutes.
Instead, local residents, fishermen, and other entities were the
first to learn of the spill and notify authorities after smelling
toxic oil and seeing a massive oil sheen on the water."
Indeed, as the Complaint continues, "Because Defendants failed to
detect the spill, they also failed to stop pumping copious amounts
of oil through the ruptured pipeline, and failed to close valves
that could have prevented oil from escaping. Defendants did not
notify the authorities until over 15 hours after the spill began --
and only after consulting the company's risk management firm --
impeding clean-up efforts and violating Defendants' own policies.
In short, because of Defendants' incompetence and callous disregard
of industry-standard safety measures, the disaster engulfing
Southern California continues to unfold."
The Complaint states claims for strict liability under the
Lempert-Keene-Seastrand Oil Spill Prevention and Response Act,
strict liability for ultra-hazardous activity, violation of the Oil
Pollution Act of 1990, negligence, public nuisance, negligent
interference with prospective economic advantage, trespass, and
continuing private nuisance, and seeks all recoverable
compensatory, statutory, and other damages, including remediation
costs, as well as injunctive relief.
"It is clear that spills like this will continue to occur and
devastate beaches, marine preserves, homes, businesses, and our
coastal environments as a whole," added Lexi Hazam, "unless
plaintiffs like those bringing this lawsuit are able to use the
civil justice system to redress the consequences of oil companies'
disregard for safety and continued cavalier and destructive
behavior."
The complaint includes class representatives who fish commercially
for lobster, squid, rock crab, groundfish, and baitfish, as well as
sport fishing and whale watching charters. Representatives of
Plaintiff Davey's Locker Sportfishing had this to say about the
spill:
"For decades, Newport Landing and Davey's Locker (est. 1958) have
been providing sport fishing, whale watching and harbor cruises to
residents and visitors to southern California. In sharing our love
of the ocean and the life therein with so many hundreds of
thousands of people, all of us at Newport Landing and Davey's
Locker take very seriously our role in helping to protect and
sustain the local marine environment. We have been deeply saddened
and frankly, sickened, to see the impact of the recent oil spill on
our pristine coastal waters. Newport Harbor was shut down while
some of our boats were out of the harbor, and it required frantic
negotiations with the U.S. Coast Guard just to get our passengers
back to the dock in lieu of being ferried somewhere north. Local
fishing and whale watching has also ceased; however, the impact on
our business pales in comparison to the impact this pollution has
had and may continue to have on local sea life.
Although we are hopeful that fishing and whale watching will be
permitted again in the near future, there is no way to know the
long term impact this man-made disaster will have on our business,
as well as on all the other businesses and coastal property owners
who have seen their beautiful coastal environment turned into a
noxious, oil-soaked nightmare. We hope that by joining together in
this lawsuit, all of us affected can both recover our financial
losses as well as helping to ensure that something like this never
happens again."
Learn more about the 2021 Huntington Beach oil pipeline rupture and
spill and the class action lawsuit.
About Lieff Cabraser
Lieff Cabraser has a long history of successfully championing the
rights of those injured or who have lost property and businesses as
a result of oil spills and other environmental disasters. Over the
last 45 years, we have assisted our clients in recovering over $124
billion in verdicts and settlements. Our firm helped lead
litigation against BP over the 2010 Gulf of Mexico Deepwater
Horizon oil rig explosion and oil spill, successfully representing
property owners, business owners, wage earners, and other harmed
parties. Lieff Cabraser was also appointed by the court to lead
litigation on behalf of homeowners and fishers who suffered
economic injuries relating to 2015 Plains pipeline oil spill in
Santa Barbara, and also helps lead the class action case on behalf
of property owners and lessees who suffered losses from the
2015-2016 Porter Ranch gas leak in Southern California. Firm
partner Lexi Hazam is also Court-appointed Co-Lead Counsel for
Individual Plaintiffs in the Thomas and Woolsey Fire litigations
against Southern California Edison arising from the colossal
wildfires its equipment caused in recent years, in which thousands
of victims whose homes and businesses were destroyed or damaged
have recovered approximately $1 billion to date.
About Robertson & Associates, LLP
For more than 35 years, Alex "Trey" Robertson, IV has represented
homeowners, celebrities and Fortune 500 companies navigate the "fog
of litigation" in high stakes consumer multi-district class
actions, mass torts and high-profile litigation. Relying upon his
background in the engineering construction industry, Trey has
demonstrated an ability to quickly grasp complex engineering and
technical issues. Called a "closer" by one chief judge in a very
large national case, Trey has developed a reputation of coming up
with creative solutions to settle cases believed to be
"un-settleable." Trey currently serves as the Court-appointed
Co-Lead Counsel for approximately 7,000 Individual Plaintiffs who
are suing Southern California Edison Company (SCE) in the Woolsey
Fire Case (JCCP No. 5000). Trey also serves on the Plaintiffs'
Executive Committee in the Southern California Fire Case (JCCP No.
4965), in which he represents approximately 700 victims of the
Thomas Fire and Montecito Debris Flow.
Source/Contact:
Lexi J. Hazam
Lieff Cabraser Heimann & Bernstein, LLP
lhazam@lchb.com
Alexander "Trey" Robertson, IV
Robertson & Associates, LLP
arobertson@robertsonlaw.com [GN]
ANDREW KREPS: Crumwell Files ADA Suit in S.D. New York
------------------------------------------------------
A class action lawsuit has been filed against Andrew Kreps Gallery
Ltd. The case is styled as Denise Crumwell, on behalf of herself
and all other persons similarly situated v. Andrew Kreps Gallery
Ltd., Case No. 1:21-cv-08425 (S.D.N.Y., Oct. 12, 2021).
The lawsuit is brought over alleged violation of the Americans with
Disabilities Act.
Andrew Kreps Gallery -- http://www.andrewkreps.com/-- is a
contemporary art gallery located in the Tribeca neighborhood of New
York.[BN]
The Plaintiff is represented by:
Michael A. LaBollita, Esq.
GOTTLIEB & ASSOCIATES
150 E. 18 St., Suite PHR
New York, NY 10003
Phone: (212) 228-9795
Email: michael@gottlieb.legal
APPHARVEST INC: Levi & Korsinsky Reminds of Nov. 23 Deadline
------------------------------------------------------------
The following statement is being issued by Levi & Korsinsky, LLP:
To: All persons or entities who purchased or otherwise acquired
securities of AppHarvest, Inc. ("AppHarvest") (NASDAQ: APPH)
between May 17, 2021 and August 10, 2021. You are hereby notified
that a securities class action lawsuit has been commenced in the
United States District Court for the Southern District of New York.
To get more information go to:
https://www.zlk.com/pslra-1/appharvest-inc-loss-submission-form?prid=20279&wire=5
or contact Joseph E. Levi, Esq. either via email at
jlevi@levikorsinsky.com or by telephone at (212) 363-7500. There is
no cost or obligation to you.
Cannot view this image? Visit:
https://orders.newsfilecorp.com/files/7091/99196_513670_logo.jpg
AppHarvest, Inc. NEWS - APPH NEWS
CASE DETAILS: According to the filed complaint: (1) AppHarvest
lacked sufficient training for its recently expanded labor force;
(2) as a result, the Company could not produce Grade No. 1 tomatoes
consistently; (3) as a result, the Company's financial results
would be adversely impacted; and (4) 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 SHAREHOLDERS: If you suffered a loss in
AppHarvest, you have until November 23, 2021 to request that the
Court appoint you as lead plaintiff. Your ability to share in any
recovery doesn't require that you serve as a lead plaintiff.
NO COST TO YOU: If you purchased AppHarvest securities between May
17, 2021 and August 10, 2021, you may be entitled to compensation
without payment of any out-of-pocket costs or fees.
PROTECT YOUR FINANCIAL INTERESTS: Complete this brief submission
form
https://www.zlk.com/pslra-1/appharvest-inc-loss-submission-form?prid=20279&wire=5
or call 212-363-7500 to discuss the case with Joseph E. Levi, Esq.
WHY LEVI & KORSINSKY: Levi & Korsinsky have a proven track record
of winning cases worth hundreds of millions of dollars for
shareholders over a 20-year period. We represent and fight for
shareholders who have been wronged by corporations.
Levi & Korsinsky is a nationally recognized firm with offices in
New York, California, Connecticut, and Washington, D.C. The Firm's
Founding Partners, Joseph Levi and Eduard Korsinsky, have been
representing shareholders and institutional clients for almost 20
years and have achieved remarkable results for clients in the U.S.
and internationally. The firm, with more than 80 employees, is
committed to fostering, cultivating and preserving a culture of
diversity, equity and inclusion for employees and those that we
represent. Our attorneys have extensive expertise representing
investors in securities litigation with a track record of
recovering hundreds of millions of dollars in cases. Levi &
Korsinsky was ranked in Institutional Shareholder Services' ("ISS")
SCAS Top 50 Report for 7 years in a row as a top securities
litigation firm in the United States. The SCAS Top 50 Report
identifies the top plaintiffs' securities law firms in the country,
and year after year, ISS has recognized Levi & Korsinsky as a
leading firm in the area of securities class action litigation.
CONTACT:
Levi & Korsinsky, LLP
Joseph E. Levi, Esq.
Ed Korsinsky, Esq.
55 Broadway, 10th Floor
New York, NY 10006
jlevi@levikorsinsky.com
Tel: (212) 363-7500
Fax: (212) 363-7171
www.zlk.com [GN]
APPLE INC: Appeals Ruling in App Store In-App Class Action
----------------------------------------------------------
Campbell Kwan, writing for ZDNet, reports that a month after a US
federal court gave a mixed-court ruling for the Apple-Epic Games
lawsuit, Apple has filed a notice of appeal for the ruling and
requested a stay of an injunction that would require the App Store
to allow developers to add in-app purchasing mechanisms to iOS
apps.
In the ruling, the presiding judge Yvonne Gonzales Rogers found
Apple engaged in anticompetitive conduct under California's
competition laws. Consequently, she issued a permanent injunction
to block Apple's App Store rule that prevents developers from
adding in-app links to payment websites. The injunction also
ordered for Apple to allow developers to communicate with customers
via contact information that is voluntarily submitted by customers
when they set up an account within an app.
The injunction is currently scheduled to go into effect in
December.
In a court filing [PDF], Apple requested for the injunction to be
stayed until all appeals in the proceedings are resolved. The
iPhone maker said it wanted to stay the injunction until litigation
was settled as it wanted clarity while it "works through the
complex and rapidly evolving legal, technological, and economic
issues that any revisions to this guideline would implicate."
It added that the stay of the injunction would not affect
participants in the case, specifically Epic Games, as Apple has
decided to ban the games developer from the iOS store until all
appeals are resolved.
"Epic will suffer no harm from a stay because, as authorised by the
Court's decision, Apple recently rejected Epic's request to
reinstate its developer program account; Epic has no live apps on
the App Store and thus no standing to enforce the injunction,"
Apple wrote in its request.
On the opposing side, Epic Games filed a notice of appeal last
month of Gonzales Rogers's broader decision, which sided with Apple
in concluding that the iPhone maker's app store practices did not
violate other state or federal antitrust laws.
While Apple has continued to remain firm in its legal stoush with
Epic Games, the iPhone maker has made various concessions regarding
the way its app store operates to appease regulatory and legal
concerns arising elsewhere. These concessions include eventually
allowing developers of "reader" apps to link to external websites
for setting up and managing accounts to wrap up a Japanese
antitrust probe, and allowing apps developers to implement payment
systems outside of the App Store and communicate directly with
customers about them to settle a separate US class action lawsuit.
In relation to the settlement, developers with iOS apps can now
implement payment systems outside of the App Store, but if Apple's
stay is approved, developers will continue to not be allowed to add
links to these systems in apps at least until the appeals in the
Apple-Epic Games proceedings are resolved. [GN]
ARKANSAS: Wellpath's Bid to Dismiss Frazier v. DOC Partly Granted
-----------------------------------------------------------------
In the lawsuit captioned NICHOLAS FRAZIER, et al., Plaintiffs v.
SOLOMON GRAVES, et al., Defendants, Case No. 4:20-cv-00434-KGB
(E.D. Ark.), District Judge Kristine G. Baker of the U.S. District
Court for the Eastern District of Arkansas, Central Division,
grants in part, and denies in part Defendant Wellpath, LLC's motion
to dismiss.
Before the Court are several pending motions. There is the motion
for protective order of plaintiffs Marvin Kent, Michael Kouri,
Jonathan Neeley, Alfred Nickson, Trinidad Serrato, Robert Stiggers,
Victor Williams, John Doe No. 1, Wesley Bray, Price Brown, John Doe
No. 2, Joseph Head, Darryl Hussey, Jimmy Little, Lee Owens, Torris
Richardson, and Roderick Wesley, plaintiffs, individually and on
behalf of all others similarly situated (collectively,
"Plaintiffs").
Defendants Solomon Graves, Secretary of the Arkansas Department of
Corrections ("DOC"); Dexter Payne, Division of Correction Director,
Arkansas Department of Corrections ("ADC"); Benny Magness, Chairman
of Arkansas Board of Corrections ("ABC"); Bobby Glover, Vice
Chairman of ABC; John Felts, Member of ABC; William "Dubs" Byers,
Member of ABC (collectively, "State Defendants") responded to the
Plaintiffs' motion for protective order by filing a combined
renewed motion to stay discovery and response in opposition to the
Plaintiffs' motion for protective order.
Separate Defendant Wellpath, LLC ("Wellpath") responded to the
Plaintiffs' motion for protective order by filing a motion to join
the State Defendants' combined renewed motion to stay discovery and
response in opposition to the Plaintiffs' motion for protective
order. The Plaintiffs responded to the motion to stay of the State
Defendants and Wellpath (collectively, "Defendants"), and the
Plaintiffs replied to the Defendants' response to the motion for
protective order.
Also before the Court is the Plaintiffs' motion to compel expert
inspection of Dr. Homer Venters and depositions of Aundrea
Culclager, Rex Lay, and Shirley Lubin Wilson. Wellpath and the
State Defendants have responded to the Plaintiffs' motion to
compel, and the Plaintiffs replied.
Finally, before the Court is Defendant Wellpath's motion to dismiss
the Plaintiffs' amended complaint. The Plaintiffs have responded in
opposition to Wellpath's motion to dismiss.
I. Overview
A. Complaint, Emergency Motion For Temporary Restraining Order And
Preliminary Injunction, Supplemental Motion For Temporary
Restraining Order
On April 21, 2020, the Plaintiffs filed a class action complaint
and petition for writ of habeas corpus. The Plaintiffs alleged that
conditions in ADC facilities create a serious risk of
COVID-19-related infection, disease, and death. The Plaintiffs
asserted that the State Defendants have intentionally failed to
adopt and implement adequate policies and procedures to prevent and
mitigate the spread of COVID-19.
The Plaintiffs asserted three causes of action against the State
Defendants: (1) violation of the Eighth Amendment brought pursuant
to 42 U.S.C. Section 1983 on behalf of all plaintiffs; (2)
violation of the Eighth Amendment brought by a petition for writ of
habeas corpus under 28 U.S.C. Section 2241 on behalf of the
proposed high risk subclass; and (3) violation of the Americans
with Disabilities Act ("ADA"), 42 U.S.C. Section 12101, et seq., on
behalf of the proposed disability subclass.
On the same day, the Plaintiffs also filed an emergency motion for
temporary restraining order and preliminary injunction. In this
motion, the Plaintiffs requested that this Court grant immediate
relief to protect them against the substantial risk of COVID-19
infection, illness, and death while incarcerated in ADC facilities.
The Plaintiffs asserted, among other things, that they are entitled
to a preliminary injunction because they are substantially likely
to succeed on the merits of their claim that the Defendants'
failure to take steps to address the imminent risk caused by
COVID-19 constitutes deliberate indifference in violation of their
Eighth Amendment rights and the ADA.
On April 27, 2020, the Plaintiffs also filed a supplemental motion
for temporary restraining order, which requested that the Court
enter immediately a temporary restraining order. The Plaintiffs
provided a draft proposed order outlining in detail the relief they
requested in their motion, which was comparable but not identical
to the relief they sought in their motion for preliminary
injunction.
The Plaintiffs filed a motion for expedited discovery, while the
Court had under advisement their request for preliminary injunctive
relief. On May 4, 2020, the Court entered an Order denying the
Plaintiffs' motion for temporary restraining order but held under
advisement their previously filed motion for preliminary
injunction.
After the Court's ruling on the Plaintiffs' request for a temporary
restraining order, the Plaintiffs and the Defendants submitted to
the Court additional record evidence and further briefing. In an
Order dated May 19, 2020, the Court denied the Plaintiffs' motion
for preliminary injunction.
B. Defendants' Motion to Dismiss Original Complaint
The Defendants named in the original complaint filed a motion to
dismiss the complaint. The Plaintiffs requested an extension of
time to respond to the Defendants' motion to dismiss on the ground
that they would be filing an amended complaint superseding the
original. The Plaintiffs filed an amended class action complaint
and petition for writ of habeas corpus.
The Court denied as moot the first motion to dismiss.
C. Plaintiffs' Amended Complaint
The Plaintiffs filed an amended class action complaint and petition
for writ of habeas corpus. The amended complaint added a number of
the Plaintiffs and two new Defendants, including Wellpath, the
contracted medical provider for the DOC.
In their amended complaint, the Plaintiffs seek relief on behalf of
themselves and a class consisting of people who are currently
incarcerated, or will be in the future, in an ADC detention
facility during the duration of the COVID-19 pandemic. The
Plaintiffs also propose two subclasses, to include an:
(a) high risk subclass, defined as:
People in the custody of a DOC facility aged 50 or over
and/or who have serious underlying medical conditions that
put them at particular risk of serious harm or death from
COVID-19, including but not limited to people with
respiratory conditions such as chronic lung disease or
asthma; people with heart disease or other heart
conditions; people who are immunocompromised as a result
of cancer, HIV/AIDS, or for any other reason; people with
chronic liver or kidney disease, or renal failure
(including hepatitis and dialysis patients); people with
diabetes, epilepsy, hypertension, blood disorders
(including sickle cell disease), or an inherited metabolic
disorder; people who have had or are at risk of stroke;
and people with any condition specifically identified by
CDC, currently or in the future, as increasing their risk
of contracting, having severe illness, and/or dying from
COVID-19; and
(b) disability subclass, defined as:
People in custody who suffer from a disability that
substantially limits one or more of their major life
activities and who are at increased risk of contracting,
becoming severely ill from, and/or dying from COVID-19 due
to their disability or any medical treatment necessary to
treat their disability, with a broad construction of
disability pursuant to 28 C.F.R. Section 35.101, which
favors expansive coverage to the maximum extent permitted
by the terms of the Americans With Disabilities Act (ADA)
that does not require extensive analysis.
In the amended complaint, the Plaintiffs contend, among other
things, that because people incarcerated in DOC facilities are
housed in "close quarters, unable to maintain a six-foot distance
from others, and share or touch objects used by others, the risk of
contracting COVID-19 are greatly, if not exponentially, increased
as is already evident by the spread of COVID-19 in other congregate
environments."
The Plaintiffs assert three causes of action against Wellpath in
the amended complaint: (1) violation of the Eighth Amendment
brought pursuant to 42 U.S.C. Section 1983; (2) a petition for writ
of habeas corpus brought pursuant to 28 U.S.C. Section 2241 based
on violation of the Eighth Amendment on behalf of the proposed high
risk subclass; and (3) violation of the ADA, on behalf of the
proposed disability subclass.
D. Discovery
On May 27, 2020, the State Defendants moved to stay discovery
pending a final decision on their forthcoming motion to dismiss,
and plaintiffs responded by filing an emergency motion for initial
scheduling order. In an Order dated June 4, 2020, the Court denied
the State Defendants' motion to stay discovery and granted the
Plaintiffs' emergency motion for initial scheduling order.
On Aug. 31, 2020, the State Defendants responded to the Plaintiffs'
first set of requests for production of documents. In the State
Defendants' objections and responses to the Plaintiffs' first set
of requests for production of documents, the State Defendants
indicated that they had designated thousands of pages of documents
as "Confidential," without the Court entering a protective order,
and stated that these documents would only be produced "after the
Court enters a protective order providing for such confidentiality
designations."
The Plaintiffs state that they initially sent a draft of a proposed
protective order to the State Defendants on June 10, 2020, and to
Wellpath after the Plaintiffs filed their amended complaint on July
13, 2020.
On Nov. 23, 2020, the Plaintiffs served a Rule 34(a)(2) request for
inspection on the Defendants requesting to inspect "those areas of
Varner, Ouachita River, Cummins, Central Arkansas, and East
Arkansas Regional correctional facilities" to observe the physical
infrastructure of the prisons, the efforts to prevent and mitigate
the spread of COVID-19, and the medical treatment of incarcerated
people at the DOC facilities.
The State Defendants objected to the Plaintiffs' request for expert
inspection on several grounds, and, on Dec. 23, 2020, the State
Defendants electronically mailed the Plaintiffs their formal
objections noting that they intended to renew their motion to stay
and believed the requested inspections were irrelevant.
On Dec. 17, 2020, the Plaintiffs noticed the depositions of Mr.
Culclager, Mr. Lay, and Ms. Wilson. On Jan. 12, 2021, counsel for
the Plaintiffs sent counsel for Defendants detailed information for
joining the remote deposition of Mr. Culclager. Counsel for State
Defendants responded that they considered the depositions "to be
off until after both (1) the Court rules on the pending motion to
stay discovery, and (2) until after the third-party witnesses are
properly served with valid subpoenas."
On Jan. 14, 2021, the Plaintiffs filed their motion to compel
expert inspection of Dr. Venters and depositions of Mr. Culclager,
Mr. Lay, and Ms. Wilson.
E. State Defendants' Motion to Dismiss
In an Order dated March 31, 2021, the Court granted, in part, and
denied, in part, the State Defendants' motion to dismiss the
Plaintiffs' amended complaint. The Court determined that the
Plaintiffs had alleged sufficient facts in their amended complaint
to overcome the State Defendants' assertion of sovereign immunity
on the Plaintiffs' claims for declaratory relief, and the Court
denied the State Defendants' motion to dismiss the Plaintiffs'
claims for declaratory relief.
The Court also concluded that the Plaintiffs had stated an Eighth
Amendment claim for deliberate indifference, and it denied the
State Defendants' motion to dismiss the Plaintiffs' deliberate
indifference claim. Based on controlling Eighth Circuit precedent
the Court dismissed the Plaintiffs' 28 U.S.C. Section 2241 habeas
corpus petition against the State Defendants.
The Court found that the Plaintiffs and the proposed disability
subclass had stated a claim under Title II of the ADA against State
Defendants and denied the State Defendants' motion to dismiss the
Plaintiffs' claim under Title II of the ADA.
II. Wellpath's Motion to Dismiss
Wellpath moves to dismiss the Plaintiffs' amended complaint under
Federal Rule of Civil Procedure 12(b)(6) and Local Rule 7.2.
Wellpath asserts that it is entitled to immunity as to the
Plaintiffs' Eighth Amendment claims of deliberate indifference
pursuant to Arkansas Code Annotated Section 12-75-101, et seq.
("Arkansas Emergency Services Act") and Executive Orders 20-03 and
20-34. Wellpath also claims that it is not a proper party to the
Plaintiffs' Eighth Amendment habeas corpus claim or their claim
under Title II of the ADA.
The Plaintiffs oppose Defendant Wellpath's motion to dismiss on
grounds that Wellpath's motion to dismiss is untimely and brought
to delay the proceedings; Wellpath's arguments do not establish
that it is entitled to relief as a matter of law; Wellpath is a
necessary party to the Plaintiffs' Eighth Amendment habeas corpus
claim; and Wellpath is subject to the ADA or, alternatively, is a
necessary party to the Plaintiffs' ADA claim.
Judge Baker notes that Wellpath does not raise specific arguments
directed at the deliberate indifference standard in their briefing.
As to the objective prong, the Plaintiffs allege that COVID-19
poses an objectively serious health risk to named plaintiffs and
the putative subclasses given the nature of the disease and the
congregate living environment of the DOC's facilities. As alleged
in the amended complaint, these risks can be exacerbated by a lack
of access to proper testing, evaluation, and treatment.
This objectively serious health risk appears heightened for the
Named Plaintiffs and members of the putative high risk subclasses
given the Plaintiffs' allegations regarding their susceptibility to
contracting COVID-19 and experiencing worsened symptoms, Judge
Baker opines. Thus, the Plaintiffs have pleaded sufficient
allegations in the amended complaint to satisfy the objective prong
of the deliberate indifference test for their Eighth Amendment
deliberate indifference claims.
Considering all of the pleadings before it, the Court determines
that, at this stage, the Plaintiffs have stated sufficient facts to
satisfy the subjective prong and have stated an Eighth Amendment
claim against Wellpath based on deliberate indifference to serious
medical needs.
Based on the record before the Court, Judge Baker finds that there
are several problems with Wellpath's assertion that the Court
should dismiss the Plaintiffs' Eighth Amendment deliberate
indifference claim on the grounds that it is entitled to immunity
under the Arkansas Emergency Services Act and Executive Orders
20-03 and 20-34.
The Court also recognizes that Wellpath, although a private entity,
is considered a state actor for purposes of the Plaintiffs' claim
and that Wellpath is unable to assert a defense of qualified
immunity, at least at this stage of the proceedings given the
claims asserted and on the record currently before the Court.
At this stage, the Court finds that the Plaintiffs have alleged
sufficient facts in their amended complaint to support an Eighth
Amendment deliberate indifference claim against Wellpath, and the
Court denies Wellpath's motion to dismiss on grounds that they are
entitled to immunity under the Arkansas Emergency Services Act and
Executive Orders 20-03 and 20-34.
Wellpath also asserts that it is entitled to dismissal of, which
this Court construes as a request for judgment as a matter of law
on, the Plaintiffs' Eighth Amendment habeas corpus petition because
it does not have custody over the Plaintiffs. The Plaintiffs argue,
however, that Wellpath is a necessary party to their habeas
petition.
For the reasons stated in this Order and in the Court's prior Order
ruling on the State Defendants' motion to dismiss, this Court
grants Wellpath's motion for judgment on the pleadings and
dismisses the Plaintiffs' 28 U.S.C. Section 2241 petition against
Wellpath. For reasons stated in this Order, on the record before it
with the briefing on the ADA issue such as it is, the Court
declines to dismiss Wellpath as a party with respect to the
Plaintiffs' claims pursuant to Title II of the ADA.
For the reasons stated, the Court grants, in part, and denies, in
part, Wellpath's motion to dismiss the Plaintiffs' amended
complaint, which the Court construes as a motion for judgment on
the pleadings. The Court denies Wellpath's motion for judgment on
the pleadings as to the Plaintiffs' Eighth Amendment deliberate
indifference claim and their claim under Title II of the ADA as to
Wellpath. The Court grants Wellpath's motion for judgment on the
pleadings and dismisses the Plaintiffs' petition for writ of habeas
corpus under 28 U.S.C. Section 2241.
III. Defendants' Motions to Stay Discovery
The State Defendants filed a renewed motion to stay discovery
pending rulings on their motions to dismiss, and Wellpath moved to
join the State Defendants' renewed motion to stay discovery. In
their motion, the State Defendants argue that discovery is
inappropriate until "threshold immunity issues are finally
resolved" (citing Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982)).
Wellpath joins the State Defendants' motion to stay discovery
arguing that the Court's ruling on the State Defendants' motion to
dismiss will affect the claims in the case and any relief which may
be available.
The Court observes that, generally, the filing of a motion to
dismiss, by itself, does not constitute "good cause" to stay
discovery pursuant to Rule 26(c)(1), citing Chesney v. Valley
Stream Union Free Sch. Dist. No. 24, 236 F.R.D. 113, 115 (E.D. N.Y.
2006).
In a separate Order the Court granted, in part, and denied, in
part, the State Defendants' motion to dismiss the Plaintiffs'
amended complaint. In this Order, the Court rules on Wellpath's
motion to dismiss. As a result, the Court denies as moot the
Defendants' motions to stay discovery pending a ruling by the Court
on the motions to dismiss. Given the status of this matter, and the
passage of time, the Court will issue a scheduling order that
proposes a new trial date and issues new pretrial deadlines.
IV. Plaintiffs' Motion for Protective Order
The Plaintiffs move for a protective order under Federal Rule of
Civil Procedure 26 that provides for discovery of confidential
records and other sensitive information including institutional
records of the Defendants and possibly non-parties, as well as
medical records of the Plaintiffs and putative class members. The
Plaintiffs assert that they have already requested, and that the
Defendants have already produced, in part, information and
documents concerning institutional records of the Defendants and
medical records.
In responding to discovery requests, the Plaintiffs stated on Aug.
31, 2020, however, that the State Defendants indicated that they
had designated thousands of pages of documents as "Confidential"
and that the State Defendants stated that they would only produce
the documents "after the Court enters a protective order providing
for such confidentiality designations."
The Plaintiffs assert that the parties have reached accord on a
majority of the proposed protective order but still disagree on the
following: (1) the number of paralegals, legal assistants, and
other support staff who can view protected information while
assisting counsel (State Defendants seek to limit accessibility to
ten people); (2) whether to require plaintiffs to disclose the
identity of parties to whom highly confidential information is
disclosed at least three business days prior to disclosure; and (3)
which party must bear the burden if there is a dispute over a
confidentiality designation (the State Defendants assert that as
drafted the DOC would be required to "obtain a court order
confirming its confidentiality designation").
The State Defendants responded to the Plaintiffs' motion for
protective order by filing a renewed motion to stay all discovery
pending the Court's resolution of their motion to dismiss; which
argument the Court denies as moot in this Order given the Court's
prior ruling on State Defendants' motion to dismiss. The State
Defendants agree with the Plaintiffs that the parties have not been
able to agree to a resolution of their disputes "regarding the use
and disclosure of confidential and highly confidential DOC
documents, as well as the appropriate procedures for the parties to
use to resolve disputes regarding confidentiality designations,
which they have not been able to resolve despite months of
negotiations."
Here, the parties do not dispute that a protective order is
appropriate. The Defendants assert that the documents they have
withheld from discovery "contain proprietary information." The
Defendants seek particularly to prevent "any inmates or third
parties" from viewing these documents. The Plaintiffs seek to
protect their medical information.
The parties dispute the parameters of the protective order. The
Court has reviewed the protective order proposed by the Defendants
and the proposed revisions to the Defendants' protective order
proposed by the Plaintiffs, and the Court does not believe that a
hearing is necessary given the limited number of provisions of the
protective order on which the parties disagree and given that the
Court has now ruled on all pending motions to dismiss resolving as
moot the stay issue.
With respect to disputes over challenging designations, based upon
the Court's review of what it understands to be the most recent
version of the parties' negotiated draft protective order, the
party challenging the designation must file the challenge with the
Court, but the party who designated the information as confidential
bears the burden of persuasion in such a proceeding. The Court
fails to understand why this mechanism is objectionable, as it
seems to track Eighth Circuit law that requires the designating
party to bear the burden of establishing that the designation of
confidential is appropriate.
Judge Baker notes that there appears to be no basis for the
Defendants' objection on this point. If the Court is mistaken in
this regard, the Defendants may explain to the Court in a detailed
filing their position with respect to the changes they propose.
The Court sees no basis to limit to 10 the number of staff persons
who may assist the Receiving Party's Outside Counsel with respect
to confidential information or items as designated by the parties'
negotiated draft protective order when all individuals permitted
access to confidential information or items will have executed
Exhibit A to the parties' negotiated draft protective order. The
Defendants do not offer the Court a meaningful explanation for
their request to limit to 10 this number. The Court overrules the
Defendants' objection on this point.
The Court has reviewed the proposed terms of disclosure of highly
confidential information or items as proposed in the parties'
negotiated draft protective order. At this point, on the record
before it, the Court opts to enter the Order with the narrower
provision as proposed.
For these reasons, and for good cause shown after having reviewed
all of the parties' filings on this point, the Court grants the
Plaintiffs' motion for protective order. The Court understands that
the most recent version of the proposed protective order that
incorporates the results of the parties' ongoing negotiations, save
and except for those points raised by the parties with the Court in
their filings, appears at Docket No. 126-1. The Court will enter by
separate order that version of the proposed protective order,
incorporating the Court's rulings in this Order, within seven days,
unless the parties notify the Court in a written filing that a more
up-to-date version of the proposed protective order exists
resulting from further negotiation.
V. Plaintiffs' Motion to Compel Expert Inspection and Depositions
The Plaintiffs' move to compel expert inspection of Dr. Venters and
to depose Mr. Culclager, Mr. Lay, and Ms. Wilson. In their motion,
the Plaintiffs state that their requests for expert inspection of
DOC facilities and to depose Mr. Culclager, Mr. Lay, and Ms. Wilson
are within the Court's powers to direct under Federal Rule of Civil
Procedure 37(a)(3)(B). The Plaintiffs state that they have
attempted to confer in good faith with the Defendants on both
issues but have been unable to reach a resolution.
The Plaintiffs state that on Nov. 23, 2020, they served a Rule
34(a)(2) request for inspection on the Plaintiffs requesting to
inspect "those areas of Varner, Ouachita River, Cummins, Central
Arkansas, and East Arkansas Regional correctional facilities" to
observe the physical infrastructure of the prisons, the efforts to
prevent and mitigate the spread of COVID-19, and the medical
treatment of incarcerated people at the DOC facilities. The
Plaintiffs contend that they have retained Dr. Venters as an expert
and that he is "highly qualified to analyze and evaluate
Defendants' medical treatment of Plaintiffs."
Wellpath responds to the motion to compel Dr. Venters' inspection
and objects, in part, based on its motion to stay discovery. The
State Defendants respond in opposition to the Plaintiffs' motion to
compel Dr. Venters' inspection arguing that they are entitled to
immunity as set forth in their motion to dismiss and that the
Plaintiffs are not entitled to discovery until the Court rejects
their immunity defense. The Plaintiffs replied to the Defendants'
responses to the motion to compel.
The Court agrees that the Defendants' challenges to the motion to
compel based on the State Defendants' motion to dismiss and their
renewed motion to stay discovery are unpersuasive because the Court
granted, in part, and denied, in part, the State Defendants' motion
to dismiss the Plaintiffs' amended complaint. The State Defendants
have not filed a notice of appeal. The Court also denied as moot
the Defendants' renewed motion to stay discovery. These arguments
do not serve as a basis to oppose this discovery request.
After reviewing the Plaintiffs' motion to compel, the Defendants'
responses, and the Plaintiffs' reply, the Court grants, in part,
and denies, in part, the Plaintiffs' motion to compel expert
inspection of Dr. Venters. The Court makes certain rulings at this
time to provide the parties guidance on these issues.
Accordingly, the Court grants, in part, and denies, in part, the
Plaintiffs' motion to compel expert inspection of Dr. Venters. At
this time and on the record before it, the Court denies the motion
to compel pursuant to Rule 37 the depositions of witnesses Mr.
Culclager, Mr. Lay, and Ms. Wilson.
VI. Conclusion
For these reasons the Court rules as follows:
1. The Court grants, in part, and denies, in part, Wellpath's
motion to dismiss, which the Court construes as a motion
for judgment on the pleadings;
2. The Court denies as moot the Defendants' combined renewed
motion to stay discovery;
3. The Court grants the Plaintiffs' motion for protective
order. The Court understands that the most recent version
of the proposed protective order that incorporates the
results of the parties' ongoing negotiations, save and
except for those points raised by the parties with the
Court in their filings, appears at Docket No. 126-1. The
Court will enter by separate order that version of the
proposed protective order, incorporating the Court's
rulings in this Order, within seven days, unless the
parties notify the Court in a written filing that a more
up-to-date version of the proposed protective order exists
resulting from further negotiation;
4. The Court grants, in part, and denies, in part, the
Plaintiffs' motion to compel expert inspection of Dr.
Venters of DOC facilities as detailed here. Due to the
Court's recent orders, and the passage of time, the Court
orders the parties to confer in good faith regarding dates,
times, and ground rules for an expert inspection by Dr.
Venters of the DOC facilities the Court will permit him to
inspect at this time and to report to the Court in writing
within 14 days of the date of this Order if the parties
have not reached agreement on these issues. The Court will
conduct a hearing with all parties within 21 days to confer
regarding the terms of a written plan for inspection;
5. The Court denies the Plaintiffs' motion to compel the
depositions of Mr. Culclager, Mr. Lay, and Ms. Wilson
without issuing subpoenas. The Court directs that the
Defendants comply with the Court's directive in this Order
on claimed represented individuals and ex parte
communications with those individuals within 14 days from
the entry of the Order.
A full-text copy of the Court's Order dated Sept. 30, 2021, is
available at https://tinyurl.com/237kbwz8 from Leagle.com.
ARROW SENIOR: Olin-Marquez Files Amended FLSA Class Status Bid
--------------------------------------------------------------
In the class action lawsuit captioned as KENDALL OLIN-MARQUEZ, on
behalf of herself and others similarly situated, v. ARROW SENIOR
LIVING MANAGEMENT, LLC, Case No. 2:21-cv-00996-EAS-CMV (S.D. Ohio),
the Plaintiff amends her previously filed pre- discovery motion for
conditional class certification and court-supervised notice to
potential Opt-In Plaintiffs Pursuant to 29 U.S.C. section 216(b)
and respectfully moves this Court to enter an order pursuant to
Section 216(b) of the Fair Labor Standards Act (FLSA), 29 U.S.C.
section 216(b):
1. conditionally certifying this case as an FLSA collective
action under Section 216(b) against Defendant Arrow Senior
Living Management, LLC on behalf of Named Plaintiff
and other similarly situated Ohio employees;
2. implementing a procedure whereby Court-approved Notice of
FLSA claims is sent by U.S. mail and email to:
"All current and former hourly, non-exempt employees at
any Ohio Arrow facility who worked at least 40 hours in
any workweek and (1) were required to have meal break
deduction taken from their compensable hours worked;
and/or (2) received nondiscretionary bonus payments, such
as a retention bonus 2 or a shift pick-up bonus, for
working extra shifts or hours beyond what the employee was
scheduled to work, beginning three years prior to the
filing date of the Original Motion and continuing through
the date of the final disposition of this case;"
3. approving the proposed Notice and Consent to Join forms;
4. directing Defendant to provide, within 14 days of an order
granting conditional certification, the "Potential Opt-In
Plaintiffs that includes their full names, their dates of
employment, their locations worked, job titles, their last
known home addresses, and their personal email addresses;
and
5. directing that the Court-approved Notice and Consent to
Join forms be sent to such present and former employees
within 14 days of receipt of the Roster using the
Potential Opt-In Plaintiffs’ home and email addresses.
This case involves the Defendant's meal deduction and additional
remuneration policies and/or practices. The Plaintiff has submitted
allegations and evidence that under the policies or practices, the
Defendant (1) deducts 30 minutes from its hourly, non-exempt
employees’ daily hours worked for meal breaks that are either
never taken or are interrupted with work duties, and (2) regularly
pays its hourly, non-exempt employees a nondiscretionary retention
bonus (which it refers to as a “Sign On Bonus”) and/or shift
pick-up bonus that are/is not included in the calculation of
employees’ regular rates of pay for purposes of overtime. These
policies and/or practices deprive Defendant's hourly, non-exempt
employees of their hard-earned overtime pay.
A copy of the Plaintiff's motion to certify class dated Oct. 5,
2021 is available from PacerMonitor.com at https://bit.ly/3lBieJd
at no extra charge.[CC]
The Plaintiff is represented by:
Matthew J.P. Coffman, Esq.
Adam C. Gedling, Esq.
Kelsie N. Hendren, Esq.
COFFMAN LEGAL, LLC
1550 Old Henderson Road, Suite No. 126
Columbus, Ohio 43220
Telephone: (614) 949-1181
Facsimile: (614) 386-9964
E-mail: mcoffman@mcoffmanlegal.com
agedling@mcoffmanlegal.com
khendren@mcoffmanlegal.com
ATHIRA PHARMA: Nacif and Rafi Appointed as Co-Lead Plaintiffs
-------------------------------------------------------------
The class action lawsuit captioned as FAN WANG and HANG GAO,
individually and on behalf of all others similarly situated, v.
ATHIRA PHARMA, INC.; and LEEN KAWAS, Case No. 2:21-cv-00861-TSZ
(W.D. Wash.), came before the Court on motions for appointment as
lead plaintiff and approval of lead counsel brought by (i)
plaintiffs Timothy Slyne and Tai Slyne,(ii) movant Kenneth Rozas,
(iii) movant Antonio Bachaalani Nacif, and (iv) movant Wies Rafi.
Having reviewed all papers filed in support of, and in opposition
to, the motions, and having concluded that these motions can be
decided without oral argument, the Hon. Judge Thomas S. Zilly
entered an order:
1. striking as moot Rozas's motion;
2. denying Slynes' motion;
3. granting in part and denying in part Nacif's motion;
4. granting in part and denying in Rafi's motion;
5. appointing Nacif and Rafi as co-lead plaintiffs;
6. appointing Labaton Sucharow LLP and Glancy Prongay &
Murray LLP as lead counsel, and appointing Breskin Johnson
& Townsend, PLLC and Rossi Vucinovich, P.C. as liaison
counsel; and
7. directing co-lead plaintiffs and defendants, within 14
days of the date of this Order, to meet and confer and
file a Joint Status Report proposing a schedule for this
matter, including deadlines for the filing of a
consolidated complaint and any responsive pleading or
motion.
On June 25, 2021, Athira shareholders Fan Wang and Hang Gao filed
this putative class action alleging claims under Sections 10(b) and
20(a) of the Securities Exchange Act of 1934. On the same day, two
other actions were commenced, one by Athira shareholder Harshdeep
Jawandha, and the other by Athira shareholders Timothy Slyne and
Tai Slyne. In both of those matters, the putative class claims are
pleaded under Sections 11 and 15 of the Securities Act of 1933 and
relate to Athira's September 2020 initial public offering ("IPO")
and its "Registration Statement."
As required by the Private Securities Litigation Reform Act
("PSLRA"), all named plaintiffs and all movants seeking appointment
as lead plaintiff have filed the requisite certifications.
Moreover, in accordance with the PSLRA, plaintiffs Wang/Gao and
Jawandha arranged for notices of their lawsuits to be published.
Both notices specified a deadline of August 24, 2021, for Athira's
investors to move to serve as lead plaintiff in this action. The
pending motions to appoint lead plaintiff were timely filed.
In this matter, the parties do not dispute the relative losses
incurred, and the Court need not engage in a protracted analysis of
which party has the largest financial interest.
Movant Antonio Bachaalani Nacif has the largest financial interest
and satisfies the requirements of Rule 23 in that Nacif's claims
are typical of those of the class and Nacif can be expected to
fairly and adequately protect the interests of the class.
Neither Rafi nor Rozas contend otherwise. Indeed, Rozas has filed a
notice of non-opposition, which the Court treats as a withdrawal of
Rozas's motion for appointment as lead plaintiff, and Rozas's
motion is stricken as moot. Rafi does not challenge Nacif's
designation as lead plaintiff, but argues that, if Nacif is
disqualified or a co-lead plaintiff is appointed, then Rafi should
be chosen.
The Slynes do not contest Nacif's appointment as lead plaintiff in
connection with the Exchange Act claims, but they contend that
Nacif is an inadequate lead plaintiff with respect to the
Securities Act claims because Nacif has no losses traceable to the
IPO and Registration Statement. They seek appointment as co-lead
plaintiff with respect to the Securities Act claims. The Slynes,
however, do not have the largest financial interest in the relief
sought under the Securities Act; both Rafi and Rozas incurred
higher losses.
Nacif objects to the Slynes' proposal for two lead plaintiffs, one
for each group of claims (i.e., a lead plaintiff for the Exchange
Act claims and a different lead plaintiff for the 21 Securities Act
claims), citing cases indicating that a lead plaintiff need not
have standing as to all claims.
Athira is a clinical-stage biopharmaceutical company focused on
developing small molecules to restore neuronal health in an effort
to combat neurological disorders like Alzheimer's disease.
A copy of the Court's order dated Oct. 5, 2021 is available from
PacerMonitor.com at https://bit.ly/3DTFrwL at no extra charge.[CC]
AURORA, CO: Bid to Amend Class Certification Due Jan. 13, 2022
--------------------------------------------------------------
In the class action lawsuit captioned as Minter, et al., v. City of
Aurora, Colorado, et al., Case No. 1:20-cv-02172 (D. Colo.), the
Hon. Magistrate Judge Nina Y. Wang entered an order as follows:
-- motion to amend/correct/modify class certification
deadline is Jan. 13, 2022;
-- designation of affirmative experts is due by Jan. 11,
2022;
-- designation of Rebuttal Experts is due by Feb. 14, 2022;
and
-- Rule 702 motions are due by June 8, 2022.
The suit alleges violation of the Civil Rights Act.
The City of Aurora is a home rule municipality located in Arapahoe,
Adams, and Douglas counties, Colorado,[CC]
AUSTRALIA: Class Action Over Climate Risk in Bonds Can Proceed
--------------------------------------------------------------
Matthew Burgess, writing for Bloomberg News, reports that a class
action lawsuit that claims Australia is misleading investors by
failing to disclose the impact of climate risk in its bonds will
proceed after government lawyers failed to get the case dismissed.
The lawsuit may continue as a class action, but officials from the
Australian Office of Financial Management and Treasury won't be
subject to the suit, Federal Court Justice Bernard Murphy said in
the judgment. The government's argument to strike out or dismiss
the action based on technicalities was rejected by Murphy.
"Australia's government has tried, but failed, to censor bond
investors seeking information about climate risks," Kathleen
O'Donnell, the 24-year-old who brought the claim, said in a
statement on Oct. 10. "They can't avoid the scrutiny of this claim,
just as they can't avoid the climate crisis."
A spokesman for Treasurer Josh Frydenberg didn't immediately
respond to a request for comment outside of regular business
hours.
Lawyers for O'Donnell and the government are to confer over the
next two weeks on the case's next steps, the judgment said. [GN]
AUSTRALIAN PHARMACEUTICAL: Faces Priceline Franchisee Class Action
------------------------------------------------------------------
Carrie LaFrenz at afr.com reports that takeover target Australian
Pharmaceutical Industries has been slapped with a class action by
current and former Priceline franchisees, who claim the company had
excessive control over their pharmacies and required them to pay
fees that are in breach state regulations.
Former Federal Court judge Ron Merkel, QC, has been drafted to lead
a team of barristers acting for the plaintiffs in Melbourne.
The statement of claim was filed in the Supreme Court of Victoria.
The Australian Financial Review reported that Levitt Robinson
Solicitors was seeking to mount a claim in July.
API is the subject of a bidding war between Wesfarmers and rival
drug wholesaler Sigma Healthcare, which are both conducting due
diligence. Wesfarmers swooped on a 19.3 per cent stake in the
target.
API operates company-owned Priceline stores with no pharmacy
attached. It also has Priceline Pharmacy-franchised stores, which
must be owned and controlled by pharmacists under the pharmacy
business ownership laws across NSW, Victoria and Queensland. The
API network totals 474 stores.
Priceline franchisees allege that from November 2010, API has used
its powerful position to charge unacceptable fees, including
distribution fees and loyalty program Sister Club fees.
The franchisees are seeking to recover the benefits lost due to
Priceline withholding rebates for not complying with mandated
in-store product displays.
It is alleged that provisions in the franchise agreements breached
state legislation by requiring franchisees to stock stores from
Priceline's merchandising range, and place orders through its auto
replenishment system, churning franchisee debt through Priceline's
parent company, API.
According to the statement of claim, Ranya Youssef, the operator of
a Priceline pharmacy in Ashwood, Victoria, is the lead plaintiff.
The second, third and fourth plaintiffs are related to former
franchisee Chris Lemon in NSW.
Mr. Lemon, who operates an independent pharmacy in Sydney's Frenchs
Forest, previously had two Priceline stores at Manly and
Chippendale.
He said there had been a lot of worry with his livelihood on the
line.
"This is a relief that it's been lodged now, because the litigation
funder takes the financial responsibility. This was not our
preferred option, and we wanted to settle this years ago with API,
but they walked out of the mediation that was compulsory under the
Franchise Act," he told AFR Weekend.
Mr Lemon said the civil proceedings he is separately engaged in
with API - which claims he owes it $2.1 million following the sale
of his two shops in 2019 - would likely be stayed pending the
outcome of the class action.
An API spokesman said the court documents had not been served on
the company, but it was "our intention to vigorously defend the
case".
Mr. Lemon said the Pharmacy Act was designed so the pharmacist
remained in control to protect the public.
"API controls everything when you operate a franchise under that
Priceline banner," he said.
Stewart Levitt, of Levitt Robinson Solicitors, is leading the class
action, which is being funded by Just Help, a group associated with
New York firm Galactic Litigation Partners.
He said at least 30 current or former franchisees were
participating in the claim across three states. The class action
uses an opt-in model, with the firm only acting for franchisees who
sign funding agreements.
"The funding scheme pre-dates the (federal) Treasurer's attempt to
stymie access to justice by aggrieved small business," Mr. Levitt
said.
"The pharmacies are a high stakes business and some were acquired
for seven figures or more, and their losses or diminished profits
are of that order."
The plaintiffs are seeking undisclosed damages, plus costs, from
API.
Levitt Robinson partner Chrystalla Georgiou said in some cases
franchisees were bankrupted and trading entities were liquidated as
a consequence of API's alleged behaviour, and damages could range
from several hundred thousand to millions of dollars per pharmacy.
[GN]
AVIATOR NATION: Alonzo Files ADA Suit in C.D. California
--------------------------------------------------------
A class action lawsuit has been filed against Aviator Nation, Inc.,
et al. The case is styled as Thuy Thanh Alonzo, individually and on
behalf of all others similarly situated v. Aviator Nation, Inc., a
California corporation, Does 1 to 10, inclusive, Case No.
2:21-cv-07824-ODW-PVC (C.D. Cal., Sept. 30, 2021).
The lawsuit is brought over alleged violation of the Americans with
Disabilities Act.
Aviator Nation -- https://www.aviatornation.com/ -- is a brand of
clothing founded by Paige Mycoskie in 2006.[BN]
The Plaintiff is represented by:
Binyamin I. Manoucheri, Esq.
Jasmine Behroozan, Esq.
Thiago Merlini Coelho, Esq.
WILSHIRE LAW FIRM
3055 Wilshire Boulevard 12th Floor
Los Angeles, CA 90010
Phone: (213) 381-9988
Fax: (213) 381-9989
Email: binyamin@wilshirelawfirm.com
jasmine@wilshirelawfirm.com
thiago@wilshirelawfirm.com
BANKSIA SECURITIES: Class Action Lawyers Faces Criminal Probe
-------------------------------------------------------------
Hannah Wootton, writing for The Australian Financial Review,
reports that a group of class action lawyers and silks are facing
criminal investigation and a damages bill of more than $11.7
million for "dishonourable" and "fraudulent" attempts to claim more
than $19 million in legal and funding fees from a group of elderly
investors in the Banksia class action.
The two barristers -- Norman O'Bryan, SC, and Michael Symons --
will also be barred from legal practice. The two solicitors --
Anthony Zita and Alex Elliott -- must show cause why they should
not face the same fate under scathing orders handed down by Justice
John Dixon in the Victorian Supreme Court on Oct. 11.
Silk Norman O'Bryan has been banned from practising law by the
Supreme Court of Victoria. Ken Irwin
Referring their conduct to the public prosecutor for further
investigation, the judge said the legal eagles had "shattered"
expectations that lawyers were honourable and "corrupted the proper
administration of justice".
The 696-page judgment brings to a close the long-running class
action into finance group Banksia's 2012 collapse, which saw
investors lose more than $660 million.
The case settled for $64 million in 2018 but the Victorian Court of
Appeal refused to sign off on $4.75 million in legal fees and $12.8
million in funder's commission after a member of the class
challenged the steep costs.
It is the latest in a spate of high-profile class actions where
judges have slammed litigation funders and law firms for taking the
lion's share of settlement proceeds and comes as the Morrison
government pushes for legislative reform to clamp down on such
excessive costs claims.
Attorney-General Michaelia Cash said the judgment was a
"vindication" of the government's work to stop such "grossly
unethical conduct" and stop lawyers "gouging disproportionately
high fees from class action members".
Justice Dixon on Oct. 11 said the barristers "went to extraordinary
lengths to conceal their misdeeds", including backdating invoices
and misleading an expert costs consultant.
They then "waged a campaign of intimidation against the group
member" who challenged their costs, including making financial
threats.
"Active steps were taken to avoid the proper administration of
justice and conceal a fraudulent scheme," he said.
" . . . About 16,000 elderly investors in a failed company had
suffered substantial financial loss.
"The process of exposing these misdeeds was laborious, costly and
delayed. The victim was the proper administration of justice."
The core group of lawyers behind the action -- Mark Elliott, Mr
O'Bryan and Mr Zita -- are the same ones who instigated the Myer
class action.
It was funded by Mark Elliott's class action funding outfit
Australian Funding Partners Limited, through which he was a very
active participant in the shareholder class action space until his
death in a farm accident last year.
The court heard that Mark Elliott had discussed how they could
deceive any costs consultants called in by the court to examine
their legal fees, including charging a cancellation fee of $300,000
for the trial.
It also heard that Mr Elliott told Mr O'Bryan to charge $2.56
million in fees for the case and that the barrister had bypassed
his clerk in the billing process because "no self-respecting clerk"
would sign off on that sum.
Justice Dixon also found Mr O'Bryan and Mr Symons billed "hundreds
of hours of time for work that had never been performed" and
"authored a misleading opinion of counsel" about their costs.
Mr O'Bryan conceded last year that he had doctored millions of
dollars in legal costs and should lose his licence to practise law
and his junior Mr Symons also handed his licence in, but Justice
Dixon still formally barred them from practising.
Driven by 'personal greed'
"I have found that [the two barristers] corrupted the
administration of justice and have been dishonest for reasons of
personal greed," the judge found.
He added in a summary of the judgment: "[They] each acted contrary
to the strictest of ethical and professional duties as barristers,
in the arrogant and defiant belief that their conduct would go
undetected.
"Mr O'Bryan, in particular, abused his standing and influence as
senior counsel to deceive the court and other lawyers into trusting
his representations concerning his fees.
"They have left a stain on the integrity of barristers as a
profession."
He also ordered that Mr Zita -- who he said acted in "gross
dereliction" of his duties as a lawyer and "too, left a stain on
the integrity of his profession" -- and Alex Elliott "show cause"
that they deserved to keep their practising certificates.
He slammed the late Mark Elliott as "a highly unethical and
dishonest person who demonstrated total disregard for his
professional obligations and his duties as an officer of the court"
and Alex, his son, as "knowingly and actively" assisting in the
fraud.
Cap on payouts for class action funders and lawyers
He ordered that his judgment and a record of the entire trial be
sent to the Director of Public Prosecutions for any further
investigation it deems appropriate.
Assistant Minister to the Attorney-General Amanda Stoker said the
judgment reinforced the need for tighter oversight of litigation
funders.
"The Banksia case shows why litigation funding firms must be better
regulated," she said.
She said the reforms proposed by the Morrison government would
limit funders' "ability to gamble through our legal system", ramp
up judicial oversight, and stop plaintiffs "having fees or
commissions imposed upon them".
Under the reforms, which have been criticised by the legal
industry, class action funders and lawyers would be restricted to a
maximum 30 per cent of any payout. The government hopes this will
curb "disproportionate" returns at the expense of ordinary
Australians involved in claims.
The reforms would also give judges enhanced power to approve or
vary the share of proceeds and could put an end to common fund
orders by requiring plaintiffs to consent to being members of a
class action litigation funding scheme before funders can impose
their fees or commission on them. [GN]
BANKSIA SECURITIES: Judge Lashes Lawyers in Securities Class Action
-------------------------------------------------------------------
Adam Cooper, writing for The Sydney Morning Herald, reports that a
group of lawyers who claimed $19 million in fees and commissions
from elderly investors in a civil action against a collapsed
financial lender have been referred to Victoria's public prosecutor
to investigate possible criminal offending.
A Supreme Court judge on Oct. 11 found a class action lawyer and
two barristers who overcharged and ripped off investors while
acting for them in the civil action against Banksia Securities had
engaged in egregious conduct that had "shattered" confidence in the
expectation that being a lawyer was an honourable profession, and
"corrupted the proper administration of justice".
The lawyers -- Mark Elliott, whose company Australian Funding
Partners Limited funded the litigation against Banksia Securities,
and barristers Norman O'Bryan and Michael Symons -- intended to
claim $19.3 million in legal fees and commission from the $64
million awarded to the 15,600 investors who lost money when Banksia
Securities collapsed in 2012.
The Kyabram-based lender owed $663 million to investors, many of
them elderly, when it went under.
Justice John Dixon found the lawyers engaged in "appalling" conduct
that included Mr Elliott and Mr O'Bryan circumventing an earlier
court ruling preventing them from working on the case because of a
financial conflict of interest, them agreeing to settlement terms
contrary to their clients' interests, and the barristers backdating
and falsifying invoices for hundreds of hours of work that wasn't
done.
Justice Dixon also found another two lawyers, solicitors Anthony
Zita and Mark Elliott's son, Alex, supported their colleagues in
using financial threats to intimidate others when the investors
challenged the settlement.
Two Banksia investors, former nurse Wendy Botsman and retired bus
driver Keith Pitman, challenged the settlement and the Court of
Appeal directed Justice Dixon to scrutinise the lawyers' high
commission, fees and conduct, aided by court-appointed lawyers who
acted in the interests of investors.
Justice Dixon ordered the group pay $11.7 million compensation,
plus other legal costs, to their former clients and ordered Mr
O'Bryan - a one-time esteemed silk and the son and grandson of past
Victorian Supreme Court judges - and Mr Symons be struck off the
roll of legal practitioners.
Mark Elliott died in a vehicle accident on his Flinders farm in
February last year. Justice Dixon on Oct. 11 found Mr Elliott was
"a highly unethical and dishonest person who demonstrated total
disregard for his professional obligations and his duties as an
officer of the court" over his conduct in the Banksia case.
The judge also ordered Alex Elliott and Mr Zita to show cause on a
later date why they should remain on the legal practitioners roll.
Alex Elliott was his father's "right-hand man", Justice Dixon said,
while Mr Zita was appointed by Mark Elliott and Mr O'Bryan as "a
post box solicitor" or conduit for the principal players to get
around the court's earlier ruling, which had prevented the pair's
involvement in the class action because they had financial
interests in Mark Elliott's company. Justice Dixon also found Mr
Zita failed to exercise proper judgment.
Justice Dixon found Mark Elliott, Mr O'Bryan and Mr Symons had
deceived the court, while Alex Elliott and Mr Zita's conduct was
misleading.
During a trial last year, Mr O'Bryan and Mr Symons conceded they
were no longer fit to act as lawyers, and Justice Dixon found the
pair acted contrary to their strict ethical and professional
duties, "in the arrogant and defiant belief that their conduct
would go undetected".
"Mr O'Bryan, in particular, abused his standing and influence as
senior counsel to deceive the court and other lawyers into trusting
his representations concerning his fees, and in seeking to collude
with other witnesses to the [the lender]," he wrote in a summary.
"They have left a stain on the integrity of barristers as a
profession."
Before releasing his 696-page ruling, Justice Dixon highlighted an
email Mr O'Bryan sent to his colleagues in 2017, before they agreed
on the $64 million settlement, which spoke of the "division of
these spoils".
"The spoils, had they been obtained, would have been ill-gotten;
the conduct on winning and dividing them was dishonourable," the
judge said.
"The truth was obfuscated."
Justice Dixon directed his judgment and transcripts and exhibits
from last year's trial be provided to the Director of Public
Prosecutions for any possible further investigation and action.
He also commended the "courage, tenacity and insight" Mr Pitman and
Ms Botsman displayed in challenging the settlement and seeking
compensation. [GN]
BOEING CO: Judge to Pause 737 Max RICO Class Action
---------------------------------------------------
Linda Chiem, writing for Law360, reports that Boeing and Southwest
Airlines have asked a Texas federal judge to pause litigation
alleging they colluded to bolster public confidence in faulty 737
Max 8 jets and inflate ticket prices, saying they're pursuing a
Fifth Circuit appeal challenging a recent order certifying
potentially millions of customers. [GN]
BOKF NATIONAL: Fifth Circuit Affirms Dismissal of Johnson Suit
--------------------------------------------------------------
In the case, SHARONDA L. JOHNSON, ON BEHALF OF HERSELF AND ALL
OTHERS SIMILARLY SITUATED, Plaintiff-Appellant v. BOKF NATIONAL
ASSOCIATION, Defendant-Appellee, Case No. 18-11375 (5th Cir.), the
U.S. Court of Appeals for the Fifth Circuit affirms the district
court's order dismissing the action for failure to state a claim.
Background
The National Bank Act of 1864 ("NBA") governs the business
activities of national banks like BOKF. Enacted in 1864, the NBA is
intended to protect national banks against intrusive regulation by
the states and facilitate a national banking system. National banks
are also subject to regulation by the Office of the Comptroller of
the Currency ("OCC"), the agency charged by Congress with
implementing the NBA.
BOKF is a national bank that offers, inter alia, checking account
services to its customers. Pursuant to the Bank's deposit account
agreement, when a BOKF customer overdraws her account, BOKF may
either: "(1) refuse to pay the item" and charge a "returned item
fee" or (2) elect to pay the item" and charge an initial overdraft
fee. The returned item fee and initial overdraft fee are both
$32.50. Thus, any time a customer overdraws on her checking
account—irrespective of whether the Bank chooses to cover its
customers' overdraft—the Bank imposes the same fee on its
customer. If the Bank opts to pay the overdraft, the customer has
up to five consecutive business days to repay the Bank the total of
the amount of the overdraft and the initial overdraft fee. If the
customer fails to do so within the applicable timeframe, the Bank
charges an "Extended Overdraft Charge" of $6.50 per business day
until the overdraft is cured.
Plaintiff Sharonda Johnson had a checking account with BOKF that
was governed by the terms of the Bank's deposit account agreement.
In 2016, Johnson overdrew on her checking account. The Bank elected
to cover her overdraft and assessed Johnson the initial overdraft
fee of $32.50. When Johnson's account remained overdrawn after five
consecutive business days, BOKF assessed Johnson Extended Overdraft
Charges of $6.50 per business day until Johnson cured the
overdraft. At one point in 2016, Johnson's account was overdrawn
for seven business days following the expiration of the
five-business-day grace period, resulting in BOKF charging Johnson
a total of $45.50 in Extended Overdraft Charges.
Johnson filed the putative class action, alleging that the Bank's
Extended Overdraft Charges constitute "interest" within the meaning
of the NBA because the fees compensate the Bank "for the use or
forbearance of money or as damages for its detention." Because the
Extended Overdraft Charges are interest under the Act, they are
subject to the usury limit in Section 85 of the Act, according to
Johnson. Johnson alleges that the $6.50-per-day Extended Overdraft
Charges exceeds the maximum interest that BOKF can charge its
customers under the state law incorporated by NBA Section 85, which
in her case was 6% per year.
In 2018, the district court dismissed Johnson's action for failure
to state a claim. Citing a number of district court decisions, the
district court reasoned that BOKF does not make a loan to a
customer when it covers the customer's overdraft; therefore, the
NBA's limitations on interest charges do not apply. Johnson timely
appealed.
Discussion
Johnson's argument on appeal proceeds in two steps. First, she
contends that the Bank makes a "loan" under Section 85 of the NBA
when it pays an overdraft on a customer's deposit account. Second,
she argues that the Extended Overdraft Charges the Bank charges a
customer who fails to timely pay back the overdraft are "interest"
on that loan within the meaning of Section 85 of the NBA. It is
undisputed that, if it is interest, the rate the Bank charges
exceeds the applicable usury limits.
The Fifth Circuit rejects Johnson's argument. Instead, it defers to
the OCC's interpretation that the Extended Overdraft Charges are
not interest within the meaning of the NBA.
The Fifth Circuit holds that Interpretive Letter 1082 represents
OCC's reasonable interpretation of genuinely ambiguous regulations
that it is charged with administering. The agency's position on
fees like the Extended Overdraft Charges here is neither plainly
erroneous nor inconsistent with the regulations it interprets,
Sections 7.4001(a) & 7.4002. OCC's interpretation also satisfies
each of the three "especially important markers" that guide courts
in determining if an agency's interpretation of its regulation
warrants Auer deference.
Accordingly, deference to OCC's interpretation of these regulations
is appropriate, and the agency's determination in Interpretive
Letter 1082 that the type of bank fees at issue in the case -- that
BOKF refers to as Extended Overdraft Charges -- are non-interest
charges is a sufficient basis to resolve the case. Because Extended
Overdraft Charges are non-interest charges, they are not subject to
the NBA's usury limits.
Ms. Johnson also contends that the district court erred in
dismissing her complaint because she should have been allowed
discovery on disputed issues of fact. Initially, the Fifth Circuit
notes that Johnson already availed herself of the opportunity the
district court provided to conduct discovery. More important,
applying Federal Rule of Civil Procedure 8(a)'s pleading standard
and taking as true Johnson's well-pleaded facts, it has concluded
that she has failed to "state a claim to relief that is plausible
on its face." And "to get to discovery, Johnson must allege
sufficient facts in her complaint to state a plausible claim for
relief. Because Johnson's complaint is deficient under Rule 8, she
is not entitled to discovery, cabined or otherwise.
Order
For these reasons, the Fifth Circuit affirms the judgment of the
district court.
A full-text copy of the Court's Sept. 29, 2021 Order is available
at https://tinyurl.com/2djrtsbw from Leagle.com.
BOPPY CO: Faces Recall Class Action Suit Over Defective Loungers
----------------------------------------------------------------
On September 23, 2021, The Boppy Company issued a recall for 3.3
million Boppy Original Newborn Loungers, Boppy Preferred Newborn
Loungers and Pottery Barn Kids Target Loungers after the company
received at least 8 reports of infant deaths associated with the
products.
The babies suffocated after being placed on their back, side or
stomach in the Boppy lounger and were found on their side or on
their stomach, the Boppy Company said. The infant deaths occurred
between December 2015 and June 2020.
This recall affects all Boppy Newborn Loungers. The loungers were
sold in a variety of colors and fashions and measure about 23
inches long by 22 inches wide and 7 inches high.
The recalled Boppy loungers were sold at juvenile product stores
and mass merchandisers nationwide and online, including Pottery
Barn Kids, Target, and Walmart and online at Amazon.com. The
loungers were sold from January 2004 through September 2021 for
between $30 and $44.
If you purchased a Boppy Lounger that is affected by this recall,
you should stop using it immediately and contact The Boppy Company
for a full refund.
Boppy Nursing Pillow Recall
The U.S. Consumer Products Safety Commission (CPSC) on July 23,
2019, announced a nationwide recall for Boppy Infant Head and Neck
Sport accessories which may pose a risk of strangulation to
babies.
The head pillow support area of the Boppy system can be
overstuffed, causing the child's head to be tilted too far forward,
posing a suffocation hazard, according to the CPSC Recall Notice.
This action applies to Boppy Head and Neck supports sold in Ebony
Floral and Heathered Gray colors (model numbers 4150114, 4150117),
CPSC said. The products were sold online and at children's
retailers and furniture stores.
If you purchased a head and neck supporter that is affected by the
recall, you should contact Boppy for information about how to
obtain a refund. This recall began on July 23, 2019.
Do I Have a Boppy Infant Recall Class Action Lawsuit?
The Class Action Litigation Group at our law firm is an experienced
team of trial lawyers that focus on the representation of
plaintiffs in Boppy Infant Recall Lawsuits. We are handling
individual litigation nationwide and currently accepting new injury
and death cases in all 50 states.
Again, if your child or other loved one was harmed by a Boppy
product, you should contact our law firm immediately. You may be
entitled to a settlement by filing a suit and we can help.[GN]
BUTTERBALL LLC: Faces Hiring Discrimination Class Action Lawsuit
----------------------------------------------------------------
Danielle Toth, writing for Top Class Actions, reports that
Butterball LLC discriminated against job applicants because of
their status as qualifying medical marijuana patients, a new class
action lawsuit alleges.
Plaintiff Douglas Mohr claims he was unlawfully denied a job at
Butterball solely because of his medical marijuana use away from
work. Mohr says Butterball violated Amendment 98 to the Arkansas
Constitution, which requires that "an employer shall not
discriminate against" a job "applicant . . . based upon the
applicant's status as a qualifying [medical marijuana] patient."
Under Amendment 98, employers like Butterball can have a "drug
testing program," can decline to hire applicants based on use of
drugs "on premises" and can decline to hire medical marijuana
patients who fail a drug screen for drugs other than marijuana,
according to the lawsuit.
Employers can also decline to hire a medical marijuana patient for
a "safety-sensitive position," says Mohr, but employers cannot
decline to hire a medical marijuana patient for a position not
designated "safety-sensitive" simply on the basis of a positive
marijuana test.
Class Action Claims Butterball Deprived Medical Marijuana Patients
of Equal Employment Opportunities
Mohr says he received a job offer for a production associate
position with Butterball in August. The position was not listed as
safety-sensitive in writing on the application or on any other
materials provided to the plaintiff.
When Mohr reported for his drug test, the plaintiff informed the
defendant that he was a medical marijuana card holder and provided
them a copy of his medical marijuana card. He says tested positive
for marijuana and negative for all other drugs.
After viewing the plaintiff 's test results, Butterball had Mohr
escorted out of its facility and informed him he was no longer
eligible for hire as a result of the positive drug test for
marijuana.
He was thus denied employment for his status as a qualifying
medical marijuana patient and was unable to find similarly paid
employment for some time afterwards.
"Merely because defendant has a drug-testing policy and drug-free
workplace does not mean defendant can decline to hire a medical
marijuana patient for a position not designated in writing as
safety-sensitive because of a positive marijuana test away from
work," the class action lawsuit says.
Mohr wants to represent other Butterball employees and applicants
who were denied employment in violation of Amendment 98 to the
Arkansas Constitution. The plaintiff believes there are at least 40
but as many as 100 class members.
Mohr is requesting damages, as well as attorneys' fees and costs,
for himself and all Class Members.
Medical marijuana patients have been taking legal action against
companies who they say refused to hire them.
Amazon is facing a class action alleging the online retailer fired
or refused to hire 196 workers in New Jersey who tested positive
for marijuana use after the substance was legalized in the state.
Stat Informatic Solutions, a healthcare information management
company, broke the law by refusing to hire an Arkansas woman
because of her status as a medical marijuana patient, a class
action lawsuit filed this summer alleges.
The plaintiff is represented by Chris Burks of WH Law.
The Butterball Medical Marijuana Employment Class Action Lawsuit is
Mohr, et al. v. Butterball, LLC, Case No. 2:21-cv-02163-PKH, in the
U.S. District Court for the Western District of Arkansas, Fort
Smith Division. [GN]
BUTTERBALL LLC: Medical Marijuana Patient Denied Job, Suit Says
---------------------------------------------------------------
Katryna Perera, writing for Law360, reports that Butterball LLC,
the poultry company known for its "Turkey Talk Line," was hit with
a proposed class action in Arkansas federal court on Oct. 5 from an
individual who claims he was denied employment from one of the
company's facilities due to his status as a medical marijuana
patient. [GN]
BYTEDANCE LTD: Settles TikTok Privacy Class Action for $92MM
------------------------------------------------------------
Tood Gilchrist, writing for Los Angeles Business Journal, reports
that ByteDance Ltd. will have to pay $92 million in a class action
settlement for violating user privacy on TikTok.
The China-based internet technology company, whose U.S. TikTok
headquarters is in Culver City, was handed the judgment by a
Chicago federal court Oct. 5 after the court determined the social
networking service wrongfully collected users' private data and
shared the information with third parties.
In addition to paying the settlement amount into a fund for
distribution, the company faces potential new requirements for
TikTok's privacy disclosures to consumers, as well as implementing
compliance training programs for its employees and contractors.
TikTok uses physiological traits such as fingerprints, facial
characteristics and patterns in voice cadence to verify its users'
identities. According to the judgment, however, TikTok's use of
these identifiers violated Illinois consumer privacy laws
implemented through the state's Biometric Information Privacy Act,
which mandates that companies must obtain informed consent before
either using or selling the data. [GN]
C&W FACILITY: Knecht FLSA Suit Moved From S.D. Ohio to D. Mass.
---------------------------------------------------------------
The case styled CHAD KNECHT, individually and on behalf of all
others similarly situated v. C&W FACILITY SERVICES INC., Case No.
2:20-cv-03899, was transferred from the U.S. District Court for the
Southern District of Ohio to the U.S. District Court for the
District of Massachusetts on October 12, 2021.
The Clerk of Court for the District of Massachusetts assigned Case
No. 1:21-cv-11661-LTS to the proceeding.
The case arises from the Defendant's alleged failure to compensate
the Plaintiff and all others similarly situated maintenance
technicians overtime pay for all hours worked in excess of 40 hours
in a workweek in violation of the Fair Labor Standards Act, the
Ohio Minimum Fair Wage Standards Act, and the Ohio Prompt Pay Act.
C&W Facility Services Inc. is a provider of facility maintenance,
cleaning, and related services, with its business address in
Columbus, Ohio. [BN]
The Plaintiff is represented by:
Matthew J.P. Coffman, Esq.
COFFMAN LEGAL, LLC
1550 Old Henderson Rd., Suite #126
Columbus, OH 43220
Telephone: (614) 949-1181
Facsimile: (614) 386-9964
E-mail: mcoffman@mcoffmanlegal.com
CASEY M. KAPLAN: Crumwell Files ADA Suit in S.D. New York
---------------------------------------------------------
A class action lawsuit has been filed against Casey M. Kaplan, Inc.
The case is styled as Denise Crumwell, on behalf of herself and all
other persons similarly situated v. Casey M. Kaplan, Inc., Case No.
1:21-cv-08424 (S.D.N.Y., Oct. 12, 2021).
The lawsuit is brought over alleged violation of the Americans with
Disabilities Act.
Casey M. Kaplan, Inc. -- https://caseykaplangallery.com/ -- is in
the Art Dealers business.[BN]
The Plaintiff is represented by:
Michael A. LaBollita, Esq.
GOTTLIEB & ASSOCIATES
150 E. 18 St., Suite PHR
New York, NY 10003
Phone: (212) 228-9795
Email: michael@gottlieb.legal
CHARLESTON WATER: Judge Signs Off Flushed Wipes Settlement
----------------------------------------------------------
John McDermott, writing for The Post and Courier, reports that a
who's who of American industry are losing one of their fellow
combatants in a legal dispute over the disposal of disposable
wipes.
Last week, a South Carolina judge agreed to sign off on a
class-action lawsuit settlement between Charleston Water System and
Kimberly-Clark Corp. The deal will largely remove the Cottonelle
manufacturer from the litigation unfolding at the Four Corners of
Law. [GN]
CHARTER COMMUNICATIONS: Court Denies Bid to Remand Maharaj Suit
---------------------------------------------------------------
In the case, DEVANAN MAHARAJ, Plaintiff v. CHARTER COMMUNICATIONS,
INC., Defendant, Case No. 20-cv-00064-BAS-LL (S.D. Cal.), Judge
Cynthia Bashant of the U.S. District Court for the Southern
District of California denies the Plaintiff's Motion to Remand.
Background
Defendant Charter employed Plaintiff Maharaj as a nonexempt
"Maintenance Technician" from approximately November 2000 until his
resignation in approximately November 2019. The Plaintiff alleges
that the Defendant denied him and employees the benefits of the
California Labor Code and the Industrial Welfare Commission ("IWC")
Wage Orders. Specifically, the Plaintiff alleges that the Defendant
failed to pay meal and rest period premiums; pay regular and
overtime wages; and provide accurate and itemized wage statements.
The Plaintiff brings these claims on behalf of "all current and
former nonexempt employees of Defendant CHARTER COMMUNICATIONS,
INC. who worked as a Maintenance Technician in the State of
California during any period at any time from Nov. 5, 2015, through
the present ("Maintenance Technician Class")."
The Plaintiff also claims that the Defendant failed to pay him and
other employees all wages due upon separation of employment. He
brings that claim on behalf of a subclass comprised of "all members
of the Maintenance Technician Class, whose employment with
Defendant ended at any time from Nov. 5, 2016, through the present
("Waiting Time Penalties Subclass").
Defendant Charter removed the case from San Diego County Superior
Court on Jan. 28, 2020, asserting federal jurisdiction exists under
the Class Action Fairness Act of 2005 ("CAFA"), 28 U.S.C. Section
1332(d) ("Notice of Removal").
On March 17, 2021, the Defendant filed a Motion to Compel
Arbitration and Stay Proceedings. While that first-filed Motion was
pending, the Plaintiff filed the instant Motion, challenging the
Court's jurisdiction and, thus, its authority to rule on the Motion
to Compel. The Plaintiff argues the Defendant's Notice of Removal
fails to show that CAFA's amount-in-controversy requirement has
been satisfied. The Defendant opposes and the Plaintiff replies.
Discussion
A. Primacy of Motion to Remand
As an initial matter, Judge Bashant finds it appropriate to rule on
the Motion to Remand despite the Defendant's having filed its
Motion to Compel first. Noting that the Plaintiff brought this
Motion 15 months after removal and only once it moved to compel
arbitration, Defendant contends that this Motion is a dilatory
tactic. However, a challenge to subject matter jurisdiction can be
raised at any time during a case and can neither be waived nor
forfeited. Moreover, the Court must have subject matter
jurisdiction to issue an order respecting the Defendant's Motion to
Compel. Consequently, Judge Bashant must address the merits of the
Plaintiff's Motion to Remand before acting on the Defendant's
Motion to Compel.
B. Defendant's Calculation of Amount in Controversy
The Plaintiff does not dispute the numerosity requirement of CAFA
has been met. And although he contends in passing that the
Defendant fails to show minimum diversity, he makes no such
substantive argument in his papers. Nor does he submit evidence to
refute the attestation of the Defendant's Human Resources Director,
Valerie Chandler, that the Defendant is incorporated in Delaware
and maintains its principal place of business in Connecticut, thus
satisfying CAFA's diversity requirement. Accordingly, the sole
dispute at issue is whether the Defendant has proven by a
preponderance of the evidence CAFA's amount-in-controversy
requirement.
The Defendant's amount-in-controversy calculation rests upon the
Chandler Declaration submitted alongside the Notice of Removal and
the allegations in the Complaint.
C. Preponderance of the Evidence
Judge Bashant holds that the Defendant has proven by a
preponderance the amount placed into controversy by the Plaintiff's
claims for unpaid meal and rest periods, unpaid regular and
overtime wages, and noncompliant wage statements exceeds $5
million, as set out.
Cause of Action Amount in Controversy
First COA - Unpaid Meal Period $1,587,600
Second COA - Unpaid Rest Period $1,587,600
Third COA - Unpaid Regular Wage:
30-Minute Meal Period $1,058,400
1-Hour Off-Duty Period $2,116,800
Fourth COA - Unpaid Overtime Wage $3,175,200
Sixth COA - Wage Statement $1,020,000
Total $10,545,600
Because the Defendant has met its burden of establishing federal
subject matter over the putative class action pursuant to CAFA, the
Plaintiff's Motion to Remand will be denied.
Conclusion
For the reasons she set forth, Judge Bashant finds that the Court
has subject matter jurisdiction over the action pursuant to CAFA.
Accordingly, she denies the Plaintiff's Motion to Remand.
A full-text copy of the Court's Sept. 29, 2021 Order is available
at https://tinyurl.com/efa7etyr from Leagle.com.
CLEVELAND INTEGRITY: Underpays Utility Inspectors, Stevenson Says
-----------------------------------------------------------------
MARTY STEVENSON, on behalf of himself and all others similarly
situated, Plaintiff v. CLEVELAND INTEGRITY SERVICES, INC.,
Defendant, Case No. 5:21-cv-00996-G (W.D. Okla., October 11, 2021)
is a class action against the Defendant for violation of the Fair
Labor Standards Act by failing to compensate the Plaintiff and
similarly situated workers overtime pay for all hours worked in
excess of 40 hours in a workweek.
The Plaintiff worked for the Defendant as a utility inspector from
approximately February 2019 to December 2020.
Cleveland Integrity Services, Inc. is a pipeline construction and
inspection services provider, headquartered in Oklahoma. [BN]
The Plaintiff is represented by:
Don J. Foty, Esq.
HODGES & FOTY, LLP
4409 Montrose Blvd., Suite 200
Houston, TX 77006
Telephone: (713) 523-0001
Facsimile: (713) 523-1116
E-mail: dfoty@hftrialfirm.com
CLIENT SERVICES: Court Certifies Settlement Class in Militello
--------------------------------------------------------------
In the class action lawsuit captioned as MEGAN MILITELLO, as
administrator of the Estate of Elizabeth Militello on behalf of
herself and all others similarly situated, v. CLIENT SERVICES, INC,
et al., Case No. 7:20-cv-07805-KMK (S.D.N.Y.), the Hon. Judge
Kenneth M. Karas entered an order:
1. certifying the proposed class for settlement purposes;
2. appointing Joseph K. Jones, Esq. And Benjamin J Wolf, Esq.
as Class Counsel;
3. denying without prejudice preliminary approval of the
class action settlement agreement;
Client Services is a full service Accounts Receivable Management
(ARM) firm offering a diverse selection of collection and recovery
solutions.
A copy of the Court's order dated Oct. 7, 2021 is available from
PacerMonitor.com at https://bit.ly/3DP6IQU at no extra charge.[CC]
COLORADO: Collins Suit Seeks to Certify Class of Business Owners
----------------------------------------------------------------
In the class action lawsuit captioned as STEPHEN E. COLLINS; RESORT
MEETING SOURCE, a Colorado limited liability company, on behalf of
themselves and others similarly situated, v. PATRICK MEYERS, in his
official capacity as Executive Director of the Colorado Office of
Economic Development and International Trade, Case No.
1:21-cv-02713-WJM-NYW (D. Colo.), the Plaintiffs ask the Court to
enter an order certifying a class of:
"all small businesses and small business owners who (1)
applied for grants under the Colorado Office of Economic
Development's Disproportionately Impacted Business Grant
Program (OEDIT), and (2) are not minority-owned businesses or
the owner of a minority-owned business."
The Colorado Office of Economic Development and International Trade
works with statewide partners to create a positive business climate
that encourages dynamic economic development and sustainable job
growth.
A copy of the Plaintiff's motion to certify class dated Oct. 8,
2021 is available from PacerMonitor.com at https://bit.ly/30vTnhP
at no extra charge.[CC]
The Plaintiffare represented by:
Wencong Fa, Esq.
PACIFIC LEGAL FOUNDATION
930 G Street
Sacramento CA 95814
Telephone: (916) 419-7111
E-mail: WFa@pacificlegal.org
- and -
Glenn E. Roper, Esq.
PACIFIC LEGAL FOUNDATION
1745 Shea Center Dr., Ste. 400
Highlands Ranch, CO 80129
Telephone: (916) 419-7111
E-mail; GERoper@pacificlegal.org
CREDIT SUISSE: Greensill Fund Investor' Class Actions Ongoing
-------------------------------------------------------------
Jenny Wiggins, writing for Australian Financial Review, reports
that seven months on from the collapse of Greensill Capital,
founder Lex Greensill remains holed up at home in England trying to
pay back creditors while GFG Alliance boss Sanjeev Gupta has been
partying on the Greek island of Mykonos.
Parts of Mr Gupta's global metals empire have crumbled since his
financing tap with the supply chain finance group was switched off
suddenly, with the group trying to offload solar farm and battery
businesses in Australia and steel mills in France and the UK.
But in Australia, the federal government is encouraging Mr Gupta to
dig in deeper, giving the green light to make more money from
soaring metallurgical coal prices by allowing him to expand his NSW
coal mining business, Tahmoor Coal -- which operates 24 hours a day
-- by an extra 33 million tonnes over the next decade.
The willingness of Australia to give Mr Gupta more business
opportunities despite ratings agencies raising concerns about the
future cost of borrowing money after losing cheap funding from
Greensill Capital may explain why he does not feel the need to keep
a low profile.
The Financial Times has reported that Mr Gupta flew to Mykonos last
month to celebrate his 50th birthday, partying at beach bars and
five-star resorts. GFG confirmed the trip, stating it was hosted by
Mr Gupta's parents.
The steel conglomerate has spent months in talks with US private
equity group White Oak Global Advisors to refinance funding
previously provided to Liberty Primary Metals Australia by
Greensill Capital without announcing a deal. On Oct. 10 , it
announced it had reached a debt restructuring arrangement with
Credit Suisse.
The confirmation of the Tahmoor Coal expansion may have helped
cement a transaction. The metals group said in early August that
the Tahmoor coal mine had produced 3 million tonnes of coal in the
12 months to June, a 40-year high.
Class action lawsuits
Mr Greensill, who has not given any media interviews since his firm
imploded in early March with payments owed on about $US25 billion
($34 billion) of financing (of which about $US10 billion was held
in funds managed by Credit Suisse) is understood to want to try to
pay them all back.
Credit Suisse has to date returned about $US6.3 billion to
investors in its four supply chain finance funds, and has an
additional $US700 million on hand in cash.
The Swiss group, which has been hit with class action lawsuits, is
negotiating with GFG over recovering more than $US1 billion owed to
it following a standstill agreement in June to halt legal action.
It is also in talks with one of Greensill Capital's other big
creditors, US coal miner Bluestone Resources, to resolve debts
owed.
While Greensill Capital's UK operations are still in
administration, its US operations are being liquidated. The recent
sale of Greensill Capital's US subsidiary Finacity to White Oak
Global Advisors means some $US10 billion of financing that Finacity
arranged is no longer in default and will transfer across to the
new owners.
The big question remaining for creditors, investors, insurers and
GFG's 35,000 employees is whether Greensill Capital or GFG did
anything illegal. Mr Greensill has denied being a fraudster.
Criminal complaint
Several investigations are under way. The UK's Serious Fraud Office
is investigating suspected fraud, fraudulent trading and money
laundering at GFG entities, including their financing arrangements
with Greensill Capital.
Germany's financial regulator, BaFin, filed a criminal complaint
after finding that Greensill Bank - a subsidiary of Greensill
Capital's Australian parent - could not provide evidence of
receivables on its balance sheet that it had allegedly acquired
from GFG companies.
Switzerland's State Secretariat for Economic Affairs (SECO) has
filed a separate criminal complaint linked to Greensill Capital.
SECO said the complaint was related to violations of the Federal
Act against Unfair Competition but has not revealed who it has been
made against.
Credit Suisse this month confirmed that data had recently been
collected from its offices in Zurich by Swiss police, but said the
investigation was not directed against the Swiss group.
Credit Suisse's own inquiry into its dealings with Greensill
Capital is expected to be released before the end of the year.
The Swiss group published a report on its relationship with US
hedge fund Archegos Capital Management (which found that billions
of dollars of losses were due to "a fundamental failure of
management and controls") when it released its second quarter
results in late July, so the Greensill Capital report may be timed
to coincide with its third-quarter results on November 4.
In Australia, the liquidators of Greensill Capital's Australian
parent company, Grant Thornton, whose investigations include
examining whether the firm traded while insolvent, are understood
to be preparing a report for the Australian Securities and
Investments Commission (ASIC) that will be delivered at the end of
October.
While Mr Greensill has acknowledged that the firm lent money
against so-called "future receivables", the details of how exactly
these arrangements worked and how decisions were made – including
by machine-based algorithms – have not been disclosed, despite
attempts of parliamentary committees in the UK and Australia to
find out.
Legal documents filed as part of the liquidation proceedings for
Greensill Capital's US business show that the firm had several
proprietary software programs, including a "New Core System" which
packaged assets into investor offers and an "Accounts Receivable
Model" that calculated the fair market value of receivables.
It also had an "Allocation Tool" that made recommendations on what
assets should be sold to which investor, "e.g. Airbus to Greensill
Bank or Credit Suisse," and a "Decision Engine" which is described
as "a python script that produces a set of recommendations that
show which obligors assets can be sold to which investor" and
"filtering out assets that have only one investor option for faster
decisioning".
Parliament's corporations and financial services committee, which
held brief initial hearings into supply chain finance in July that
lasted only a few hours, tried to get answers from Mr Greensill on
whether any of his firm's future receivables schemes originated in
Australia.
Mr Greensill confirmed that future receivables programmes were
based on "future forecast trade with current customers" in written
answers to the committee's questions, but declined to comment on
specific clients or provide details.
"In the case of private companies, future receivables programmes
offered by Greensill Capital (UK) Ltd benefited from both security
(and in many cases personal guarantees of the directors), insurance
and detailed documentation such that every investor in them knew
exactly what they were investing in," Mr Greensill said.
Greensill Capital's Australian parent group was not involved in any
regulated activities related to supply chain finance or
securitisation in Australia, he told the committee.
The corporations committee has not yet met to discuss what action
to take after receiving Mr Greensill's answers, but is not expected
to proceed with a full inquiry into supply chain finance or
Greensill Capital's collapse.
This means that the appropriateness of supply chain finance schemes
including the financing of future receivables for Australian
governments and companies will not be scrutinised.
It also means that former foreign minister Julie Bishop, who
spruiked Greensill Capital's schemes as a former advisor to the
firm, is unlikely to be summoned to answer questions, allowing her
to avoid the scrutiny given to former UK prime minister David
Cameron, who is also a former adviser.
Mr Greensill has cast blame on insurers for his firm's collapse,
telling the committee that insurance cover was withdrawn by one
provider -- Tokio Marine's Bond & Credit Co -- "despite many months
renegotiating policy terms in good faith".
However, court documents filed in March 2021 by Bond & Credit Co
(BCC), Greensill Capital's biggest insurer, show that it informed
Greensill Capital's brokers, Marsh, in writing on July 29, 2020,
that the group did not plan to renew billions of dollars of
insurance cover when it expired.
BCC told Marsh that it would not "bind any new policies, take on
any additional risk or extend or renew any Greensill policy past
what had previously been agreed".
Tokio Marine, which has subsequently replaced the boss of its
Australian insurance business, has not revealed why BCC did not
want to renew the Greensill Capital policies. It has hired external
advisers to review the "validity" of its insurance cover and taken
provisions for liabilities.
Credit Suisse filed its first insurance claim with BCC last month.
[GN]
DISCOVER CONSTRUCTION: Pena Sues Over Unpaid Overtime Payments
--------------------------------------------------------------
Joel Arnoldo Pena individually and on behalf of all other persons
similarly situated v. DISCOVER CONSTRUCTION, LLC and/or any other
entities affiliated with, controlling, or controlled by DISCOVER
CONSTRUCTION, LLC, and JOHNNY SALVADOR, Individually, Case No.
2:21-cv-18462 (D.N.J., Oct. 12, 2021), is brought against the
Defendants to seek recovery of statutory wage and overtime
payments, payment for unpaid supplemental benefits in violation of
the Fair Labor Standards Act, the New Jersey State Wage and Hour
Law, and the New Jersey State Prevailing Wage Act.
The Defendants did not properly compensate the Plaintiff for their
overtime hours worked in a work week at the statutory rate of pay,
and/or for all prevailing wage hours worked in a work week at the
prevailing wage rate plus supplemental benefit rate of pay, says
the complaint.
The Plaintiff was employed by the Defendants full time as a
concrete laborer performing asphalt and concrete work for
Defendants from August 2020, through August, 2021.
Discover maintains a construction business, headquartered in East
Brunswick, New Jersey, which operates throughout the State of New
Jersey, as well as neighboring states in the Eastern United
States.[BN]
The Plaintiff is represented by:
Andrew I. Glenn, Esq.
Jodi J. Jaffe, Esq.
JAFFE GLENN LAW GROUP, P.A.
300 Carnegie Center, Suite 150
Princeton, NJ 08540
Phone: (201) 687-9977
Facsimile: (201) 595-0308
Email: Aglenn@JaffeGlenn.com
Jjaffe@JaffeGlenn.com
DISTRICT OF COLUMBIA: Bids for Judgment in Smith Suit Partly OK'd
-----------------------------------------------------------------
In the case, MAGGIE SMITH, et al., Plaintiffs v. DISTRICT OF
COLUMBIA, Defendant, Case No. 1:15-cv-00737-RCL (D.D.C.), Judge
Royce C. Lamberth of the U.S. District Court for the District of
Columbia grants in part and denies in part:
(i) the Plaintiffs' motion for partial summary judgment
regarding liability; and
(ii) the District's cross-motion for summary judgment regarding
liability.
Background
The District of Columbia is no stranger to challenges to its gun
laws. After the Supreme Court struck down a District law banning
all handgun possession (District of Columbia v. Heller, 554 U.S.
570 (2008), the District has been stuck in a back-and-forth with
residents and non-residents alike who seek to register and carry
firearms.
Important to the instant case are a trio of the District's laws:
a. D.C. Code Section 22-4504, the ban on carrying a weapon,
which a judge of the Court struck down in 2014 in Palmer v.
District of Columbia, 59 F.Supp.3d 173 (D.D.C. 2014), appeal
withdrawn, No 14-7180, 2015 WL 1607711 (D.C. Cir. Apr. 2, 2015);
b. D.C. Code Section 7-2502.01 (2012) (repealed 2015), which
criminalized the possession of non-D.C. registered firearms; and
c. D.C. Code Section 7-2506.01 (2013), which criminalized the
possession of ammunition by one who does not have a D.C. registered
firearm.
When combined with a provision that essentially limited handgun
registration to D.C. residents, D.C. Code Section 7-2502.02 (2012)
(repealed 2015) and a District policy of refusing to entertain
non-resident gun registration applications, these provisions
effectively banned non-residents from possessing a firearm. And all
people, resident and non-resident alike, were prevented from
carrying a weapon in public.
The six Plaintiffs in the case, four non-residents and two District
residents, were all arrested and charged with some combination of
Sections 22-4504 (carrying ban), 7-2502.01 (unregistered firearm),
and 7-2506.01 (unregistered ammunition). They bring a putative
class action challenging their arrests and ultimately aborted
prosecutions under 42 U.S.C. Section 1983 asserting claims under
the Second, Fourth, and Fifth Amendments.
Plaintiff Smith filed the lawsuit in 2015 as a putative class
action. Plaintiffs Cassagnol and Rouse were subsequently added in
the first Amended Complaint, and all the Plaintiffs moved for class
certification. The Court denied the motion after both parties
consented to deferring class certification until after liability
was determined.
The Plaintiffs next filed a Second Amended Complaint with ten
claims against the District of Columbia, alleging violations of
their Second, Fourth, and Fifth Amendment rights. The District
moved to dismiss under Rule 12(b)(1), arguing that the Plaintiffs
lacked standing and the Court lacked jurisdiction. The District
also moved to dismiss for failure to state a claim. It found that
the Plaintiffs had standing but dismissed seven of their claims
under Rule 12(b)(6).
The Plaintiffs then filed a Third Amended Complaint, adding
Atkinson and Buffaloe, the first resident Plaintiffs. The complaint
contains their three remaining claims: Count I, that District of
Columbia's "gun control regime" during the time of the arrests
violated their Second Amendment rights; Count III, that District of
Columbia's "gun control regime" during the time of arrests violated
their Fifth Amendment rights to travel and equal protection with
respect to non-residents; and Count VI, that the retention of
handguns and ammunition after all the Plaintiffs' cases were closed
violated their Fourth Amendment rights.
Both parties moved for summary judgment as to liability on these
three claims. The Plaintiffs moved for partial summary judgment
regarding liability, requesting the expungement of their arrest
records and a declaration of nullity as to their arrests. The
District filed a cross-motion for summary judgment regarding
liability.
Discussion
A. There is No Genuine Dispute of Material Fact Regarding
Plaintiffs' Second Amendment Claims, and No Reasonable Jury Could
Find for The District
The Plaintiffs first argue that three now-repealed D.C. statutes,
Sections 7-2502.01, 7-2506.01, and 22-4504, infringe on their
Second Amendment rights. They argue that these statutes in
combination made it impossible for all persons, both non-residents
and residents, to lawfully carry a handgun for self-defense. The
District argues in response that its actions did not violate the
Constitution, because "the right to carry a firearm in public did
not exist in the District prior to Palmer" and because there has
never been a right to carry a firearm without "needing to acquire
any permit whatsoever."
In sum, Judge Lamberth opines that the Plaintiffs were arrested,
detained, and had their guns seized under a gun control regime that
completely banned carrying handguns in public. That fact is
undisputed. The same set of laws barred non-residents from
obtaining a gun registration, and then permitted the arrest of
non-residents for carrying weapons or ammunition without a license.
These laws go to the core of the Second Amendment, which preserves
the "right of responsible citizens to carry firearms for personal
self-defense beyond the home, subject to longstanding
restrictions." The District was thus burdened with showing the law
was "substantially related to an important governmental objective."
It has failed to do so.
Accordingly, Judge Lamberth finds that there is no genuine dispute
of material fact as to the District's liability on Claim 1.
Construing the facts most favorably to the Defendants, the District
violated the Plaintiffs' Second Amendment rights by arresting them,
detaining them, prosecuting them, and seizing their guns based on
an unconstitutional set of D.C. laws. The Judge grants the
Plaintiffs' motion for partial summary judgment and denies the
District's motion for summary judgment as to liability on Count I.
B. There is No Genuine Dispute of Material Fact Regarding
Plaintiffs' Fifth Amendment Claims, and No Reasonable Jury Could
Find for the District
The Plaintiffs next argue that the District's gun laws violated
their Fifth Amendment rights to travel and equal protection. Only
the non-resident plaintiffs -- Smith, Cassagnol, Rouse, and Davis
-- bring this claim. They argue that the District's gun laws
discriminate against non-residents by denying them the fundamental
right to carry a weapon for self-protection.
i. Equal Protection
Judge Lamberth opines that nothing the District provides dissuades
him from the Court's original analysis and conclusion that strict
scrutiny applies to the Plaintiffs' equal protection claims,
because those claims affect their fundamental rights to keep and
bear arms for self-defense. And because the District puts forth no
showing regarding how these laws were narrowly tailored to achieve
a compelling government interest, the Judge finds that there is no
genuine dispute of material fact and the Plaintiffs are entitled to
partial summary judgment regarding their equal protection claim.
ii. Right to Travel Claim
Judge Lamberth explains that previously, the Court explained that
"if the gun laws take away the fundamental right to have a handgun
for individual self-defense from non-D.C. residents who enter the
District, this Court must apply strict scrutiny." He finds that
neither party disputes that, at the time in question, non-residents
in the District could not possess a gun. And, again, the District
fails to even put forth a showing regarding how these laws were
narrowly tailored to achieve a compelling government interest.
Accordingly, the Judge finds there is no genuine dispute of
material fact regarding the Plaintiffs' right to travel claim, and
no reasonable jury could find for the District.
Judge Lamberth grants the Plaintiffs' motion for partial summary
judgment as to liability on Count III and denies the District's
motion for summary judgment.
C. There is No Genuine Dispute of Material Fact Regarding
Plaintiffs' Remaining Fourth Amendment Claim, and No Reasonable
Jury Could Find for the Plaintiff
Plaintiffs Smith, Cassagnol and Davis' final remaining claim is to
challenge the ongoing seizure of their guns and ammunition, long
after the District aborted their prosecutions. The Plaintiffs argue
that Section 22-4517, which declares unregistered firearms a
nuisance, is unconstitutional under the Second Amendment because it
was part of the gun-control regime in the District at the time.
Judge Lamberth opines that the District no doubt had a governmental
interest in protecting the community from the potential violence
wrought by unregistered firearms. It is undisputed that the
District would release a firearm to a gun-owner in another
jurisdiction if it was properly registered there. On balance, the
District's interest in preventing unregistered firearms from
circulating in the community greatly outweighs the intrusion caused
by requiring plaintiffs to prove that the seized firearms were
registered. The Judge finds that no reasonable jury could conclude
that retaining these firearms, lawfully seized, until the
Plaintiffs prove they are registered somewhere violates their
Fourth Amendment rights. Accordingly, the Plaintiffs' motion for
partial summary judgment on Count VI is denied, and the District's
motion for summary judgment on Count VI is granted.
Conclusion
For the foregoing reasons, Judge Lamberth grants the Plaintiffs'
motion for partial summary judgment as to Counts I and III, denies
the Plaintiffs' motion for partial summary judgment as to Count VI,
denies the District's motion for summary judgment as to Counts I
and III, and grants the District's motion for summary judgment as
to Count VI by separate Order.
A full-text copy of the Court's Sept. 29, 2021 Memorandum Opinion
is available at https://tinyurl.com/84b7n9f5 from Leagle.com.
DOW CHEMICAL: Wins Bid for Partial Judgment on Pleadings in Guidry
------------------------------------------------------------------
In the case, SHEILA GUIDRY, individually and on behalf of all
others similarly situated, ET AL. v. DOW CHEMICAL COMPANY, ET AL.,
Civil Action No. 19-12233 (E.D. La.), Judge Martin L. C. Feldman of
the U.S. District Court for the Eastern District of Louisiana:
(i) denied Defendants Dow Chemical and Union Carbide Co.'s
motion for summary judgment; and
(ii) granted their motion for partial judgment on the
pleadings.
Background
In 2009, a tank at a Union Carbide facility in Taft, Louisiana,
unexpectedly released a quantity of a chemical known as ethyl
acrylate. A class action suit was filed for damages relating to
harms allegedly suffered as a result of that release. More than 12
years later, that case is nearing trial. Before the Court are two
motions by the Defendants seeking to obviate or limit that trial.
The case has a long and complicated procedural history. It was
originally filed in state court, then removed to federal court,
then remanded back to state court. It was nearing trial in state
court when the Plaintiffs sent a settlement demand letter in which
they "mused" that "the parameters of a possible settlement can be
safely couched in terms of a range of $60 million to $275 million."
On the basis of this and other information, the Defendants removed
to federal court a second time, and the Court denied two motions to
remand.
Since then, the parties have been engaged in mud-slinging and
time-wasting, with each side accusing the other of various
incurable positional maladies and various forms of misconduct --
and not without cause. The Defendants have accused the Plaintiffs
of making claims which "border on absurdity and are vexatious,"
while the Plaintiffs have accused the Defendants of staking out
"unwarranted" and "arguably frivolous" positions, among other
things. Neither side's claims about the other's behavior are wholly
without merit, and the Court expresses its disappointment in the
manner in which the counsel is conducting the litigation. With
trial less than five weeks away and with the deadline for pretrial
motions now past, the Court considers the various motions set
before it.
Analysis
I. Motion for Summary Judgment on the Issue of Specific Causation
The Defendants submit a motion for summary judgment on the issue of
specific causation. The would have the Court decide this motion on
one central question: "As a matter of law, can the Plaintiffs meet
their burden of proving that ethyl acrylate was a substantial
contributing factor causing the Plaintiffs' non-specific irritant
symptoms without submitting expert medical testimony supporting
their allegations of specific causation?" The Defendants offer many
cases which they say stand for the proposition that, under
Louisiana law, "medical expert testimony is a requirement of proof
for specific causation in cases where chemical exposure allegedly
causes some injury forming the basis of a compensation claim."
In response, the Plaintiffs note that the various cases to which
Defendants point state that medical expert testimony is merely a
requirement to prove general causation and not specific causation.
As the Louisiana Supreme Court has noted, "While expert medical
evidence is sometimes essential, whether the defendant's fault was
a cause in fact of a plaintiff's personal injury or damage may be
proved by other direct or circumstantial evidence.
Judge Feldman denied this motion. He agrees with the Plaintiffs
that "expert testimony on general causation combined with specific
evidence of the nature of the class member's exposure is sufficient
to permit the jury to conclude that the E.A. release was more
likely than not the cause of the class representative's transient
symptoms." As the standard for summary judgment is therefore unmet,
he will deny this motion for summary judgment.
II. Motion for Partial Judgment on the Pleadings
The Defendants submit a motion for partial judgment on the
pleadings through which they request that the Court dismisses all
claims for punitive damages and strict liability. In their Rule
12(c) motion, the Defendants submit that Louisiana law in effect at
the time of the incident contained no provision for recovery of
punitive damages. They also submit that under the relevant
statutes, strict liability does not exist except for
"ultrahazardous activities," which are "strictly limited to pile
driving or blasting with explosives." The Plaintiffs do not dispute
this correct statement of law but instead contend, first, that the
motion is untimely, and second, that the Defendants are subject to
punitive damages under Louisiana state conflict of law analysis.
Judge Feldman concludes that the Plaintiffs have no leg to stand
on. Louisiana law does not provide for strict liability. Louisiana
law only provides for punitive damages where there is a true
conflict of laws arising of out-of-state injuries or injurious
conduct. The Plaintiffs have not asserted that any injury or any
injurious conduct occurred outside of the state of Louisiana.
Therefore, the Judge Deldman will grant this motion for partial
judgment on the pleadings.
Conclusion
Accordingly, Judge Feldman denied the Defendants' motion for
summary judgment. He granted their motion for partial judgment on
the pleadings. The Plaintiffs' claims for punitive damages and
strict liability are dismissed with prejudice.
A full-text copy of the Court's Sept. 29, 2021 Order & Reasons is
available at https://tinyurl.com/k5r7thty from Leagle.com.
EARGO INC: Robbins Geller Reminds of December 6 Deadline
--------------------------------------------------------
Robbins Geller Rudman & Dowd LLP on Oct. 9 disclosed that
purchasers or acquirers of Eargo, Inc. (NASDAQ: EAR) securities
between February 25, 2021 and September 22, 2021, inclusive (the
"Class Period") have until December 6, 2021 to seek appointment as
lead plaintiff in the Eargo class action lawsuit. The Eargo class
action lawsuit charges Eargo and certain of its top executives with
violations of the Securities Exchange Act of 1934. The Eargo class
action lawsuit, captioned Fazio v. Eargo, Inc., No. 21-cv-07848,
was commenced on October 6, 2021 in the Northern District of
California.
If you wish to serve as lead plaintiff of the Eargo 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 Eargo class action lawsuit must be filed with the
court no later than December 6, 2021.
CASE ALLEGATIONS: Eargo, a medical device company, claims that its
hearing aids "are the first and only virtually invisible,
rechargeable, completely-in-canal, [U.S. Food and Drug
Administration]-regulated, exempt Class I and Class II devices for
the treatment of hearing loss."
The Eargo class action lawsuit alleges that, throughout the Class
Period, defendants made false and misleading statements and failed
to disclose that: (i) Eargo had improperly sought reimbursements
from certain third-party payors; (ii) the foregoing was reasonably
likely to lead to regulatory scrutiny; (iii) as a result and
because the reimbursements at issue involved Eargo's largest
third-party payor, Eargo's financial results would be adversely
impacted; and (iv) consequently, defendants' positive statements
about Eargo's business, operations, and prospects were materially
misleading and/or lacked a reasonable basis.
On August 12, 2021, Eargo revealed that claims submitted to Eargo's
largest third-party payor, which accounted for 80% of Eargo's
accounts receivable, had not been paid since March 1, 2021. On this
news, Eargo's share price fell by more than 24%.
Then, on September 22, 2021, 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 Eargo's largest third-party payor. As a result,
Eargo withdrew its full year financial guidance. On this news,
Eargo's share price fell by an additional 68%, further damaging
investors.
THE LEAD PLAINTIFF PROCESS: The Private Securities Litigation
Reform Act of 1995 permits any investor who purchased Eargo
securities during the Class Period to seek appointment as lead
plaintiff in the Eargo 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 Eargo class action
lawsuit. The lead plaintiff can select a law firm of its choice to
litigate the Eargo class action lawsuit. An investor's ability to
share in any potential future recovery of the Eargo 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.
Attorney advertising.
Past results do not guarantee future outcomes.
Services may be performed by attorneys in any of our offices.
Contact:
Robbins Geller Rudman & Dowd LLP
655 W. Broadway, San Diego, CA 92101
J.C. Sanchez, 800-449-4900
jsanchez@rgrdlaw.com [GN]
ECO-CHIC LLC: Mason Sues Over Blind-Inaccessible Website
--------------------------------------------------------
Portia Mason, individually and on behalf of all others similarly
situated v. ECO-CHIC LLC d/b/a CREDO, a Delaware limited liability
company; and DOES 1 to 10, inclusive, Case No.
2:21-cv-07827-ODW-MAR (C.D. Cal., Sept. 30, 2021), is brought to
secure redress against the Defendants for its failure to design,
construct, maintain, and operate its website to be fully and
equally accessible to and independently usable by Plaintiff and
other blind or visually impaired people.
The Defendant's denial of full and equal access to its website, and
therefore denial of its products and services offered thereby and
in conjunction with its physical location, is a violation of the
Plaintiff's rights under the Americans with Disabilities Act and
California's Unruh Civil Rights Act. Because Defendant's website,
https://credobeauty.com/, is not fully or equally accessible to
blind and visually-impaired consumers in violation of the ADA, the
Plaintiff seeks a permanent injunction to cause a change in the
Defendant's corporate policies, practices, and procedures so that
the Defendant's website will become and remain accessible to blind
and visually impaired consumers, says the complaint.
The Plaintiff is a visually impaired and legally blind person who
requires screen-reading software to read website content using his
computer.
The Defendant's website provides consumers access to "the largest
assortment of the best beauty products on the planet."[BN]
The Plaintiff is represented by:
Thiago Coelho, Esq.
Jasmine Behroozan, Esq.
Binyamin I. Manoucheri, Esq.
WILSHIRE LAW FIRM
3055 Wilshire Blvd., 12th Floor
Los Angeles, CA 90010
Phone: (213) 381-9988
Facsimile: (213) 381-9989
Email: thiago@whilshirelawfirm.com
jamine@wilshirelawfirm.com
binyamin@wilshirelawfirm.com
EDEN CREAMERY: Court Denies Kamal's Bid for Voluntary Dismissal
---------------------------------------------------------------
In the case, 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,
Plaintiffs v. EDEN CREAMERY, LLC, dba HALO TOP CREAMERY; and JUSTIN
T. WOOLVERTON, Defendants, Case No. 18-CV-1298 TWR (AGS) (S.D.
Cal.), Judge Todd W. Robinson of the U.S. District Court for the
Southern District of California denies the Plaintiffs' Motion for
Voluntary Dismissal Without Prejudice.
Background
On June 15, 2018, Plaintiffs Youssif Kamal and Gillian Neely filed
the putative class action against Defendant Eden Creamery on behalf
of "all persons who purchased one or more pint-containers of Halo
Top ice cream and who received less than a full pint," asserting
claims for breach of implied contract and violations of
California's Unfair Competition Law, California Business &
Professions Code Sections 17200 et seq.; California's False
Advertising Law, California Business & Professions Code Sections
17500 et seq.; and California's Consumers Legal Remedies Act,
California Civil Code Sections 1770(a)(5), (7), (9). The
Plaintiffs' Complaint alleged that Eden Creamery underfilled its
"pints" of Halo Top ice cream.
After Eden Creamery filed a Motion to Dismiss, the Plaintiffs filed
a First Amended Complaint pursuant to Federal Rule of Civil
Procedure 15(a)(1) on Sept. 6, 2018, adding Plaintiffs Richard
Lichten, Susan Cox, Nick Tovar, Michele Kinman, Ashley Petefish,
and Terri Brown and Defendant Justin T. Woolverton. The Plaintiffs
dropped their breach of implied contract claim and added claims for
common law fraud and violation of state consumer law claims under
the laws of Arizona, Colorado, Illinois, Nevada, New Jersey, and
New York. Again, the Plaintiffs' theory of liability was that "Halo
Top routinely underfills its pint containers of ice cream."
On Nov. 12, 2018, the Defendants again moved to dismiss. On June
26, 2019, the Honorable Cynthia A. Bashant largely denied the
Defendants' motion. On July 19, 2019, the Defendants filed an
Answer.
On Oct. 8, 2019, the Parties filed their Joint Discovery Plan, in
which the Defendants disclosed that Eden Creamery had been "sold to
Wells Enterprises, Inc. in September 2019." The Defendants also
asserted that their Halo Top "pints are filled at the time of
manufacture" and that the "Plaintiffs describe a phenomenon called
shrinkage, not shortage," which "happens when air whipped into ice
cream products during the freezing process escapes."
On Oct. 15, 2019, Magistrate Judge Andrew G. Schopler entered a
Scheduling Order, setting a deadline to "join other parties, to
amend the pleadings, or to file additional pleadings" of Nov. 1,
2019.
On June 25, 2020, the Plaintiffs sought leave to amend the First
Amended Complaint to add Wells as a Defendant as "successor in
interest" to Halo Top and to add "substantial factual allegations
supporting liability for all the Defendants" and a theory of fraud
by omission of material facts. Whereas the Plaintiffs' original
Complaint and First Amended Complaint focused on the alleged
underfilling of Halo Top pints, the Proposed Second Amended
Complaint alleged that the Defendants' Halo Top ice cream is
"inherently defective" because the ingredients and high "overrun"
(i.e., whipped air content) render the product "extremely fragile
to changes in temperature and altitude" and, consequently, unable
to "survive the standard industry practices of cold storage
warehouses, distributors, retail store freezers, or freezers in the
homes of consumers."
On Dec. 8, 2020, the Court denied the Plaintiffs' Motion for Leave
to Amend the First Amended Complaint. On Feb. 2, 2021, the
Plaintiffs filed the instant Motion for Voluntary Dismissal,
seeking dismissal of their claims without prejudice. The Plaintiffs
contend that they "now desire to pursue their claims in a lawsuit
consistent with what they uncovered in discovery and what the
evidence shows, and not be limited to the allegations in the FAC,
which was drafted without the benefit of that discovery." The
Plaintiffs state that they "are cognizant that the Court previously
denied their request to amend the FAC to add these allegations,"
and "if this motion is granted, the Plaintiffs intend to file a
complaint substantially similar to the Proposed Second Amended
Complaint in federal court." They argue that dismissal without
prejudice is appropriate because there is no legal prejudice to the
Defendants and there is no basis for imposing conditions on
without-prejudice dismissal, such as the payment of the Defendants'
attorneys' fees.
On Feb. 24, 2021, the Defendants filed an opposition. They contend
that the Motion for Voluntary Dismissal is "an inappropriate
end-run around the Court's prior decisions" and that "the Court
should permit the Plaintiffs to voluntarily dismiss the case only
if the dismissal is with prejudice" because the "Defendants have
incurred $2 million in fees and costs, and the Plaintiffs were on
the verge of an order denying class certification." Alternatively,
the Defendants request a dismissal without prejudice "only upon
satisfaction of certain conditions designed to reduce the prejudice
to them."
Specifically, they request that the Court imposes the following
conditions to a dismissal without prejudice:
a. the Plaintiffs pay for the Defendants' attorneys' fees for
work in this case that cannot be utilized in the proposed new case,
including attorneys' fees and costs incurred in opposing the
motions to amend and for class certification;
b. discovery and discovery limitations from the case be
carried forward into the next case, with additional discovery by
the Plaintiffs allowed only upon good cause;
c. the Plaintiffs are barred from asserting claims in their
new case based on the theory that Halo Top ice cream pints were
underfilled at that time of manufacture and, accordingly, barred
from asserting that the Halo Top ice cream pints were mislabeled as
containing one pint of ice cream; and
d. the new case be filed in the Court and be assigned to
District Judge Robinson and Magistrate Judge Schopler.
On March 9, 2021, the Plaintiffs filed a reply brief arguing that
the "Defendants ignore that there have been no decisions on the
merits of the case -- and none scheduled -- that could justify
dismissal with prejudice" and that "several of the Defendants'
proposed conditions are either not permissible, or better resolved
in the subsequent filed case."
On March 24, 2021, the Court conducted oral argument. On March 25,
2021, the Court issued an Order directing further evidence and
briefing related to the Motion for Voluntary Dismissal. On April 6,
April 23, and May 7, 2021, the Parties submitted their supplemental
filings in response to the March 25 Order.
In their supplemental briefing, the Plaintiffs assert that, "on
Feb. 5, 2021, Defendant Eden Creamery merged with Wells, and as a
result Eden Creamery 'disappeared' and no longer exists." They
assert that, if the Court were to grant the Motion for Voluntary
Dismissal without any conditions, the Plaintiffs intend to file the
Proposed Second Amended Complaint discussed in another court. In
their supplemental briefing, the Defendants request the same
conditions discussed and state they can now include forum shopping
to a list that already includes strategic use of Rule 41 dismissals
as a tool the Plaintiffs and their attorney will use to
inappropriately manage their current litigation predicament.
Analysis
The Plaintiffs request dismissal without prejudice and without
conditions pursuant to Federal Rule of Civil Procedure 41(a)(2).
The Defendants request that any dismissal pursuant to Rule 41(a)(2)
should be made either with prejudice or with the imposition of
conditions, including the payment of $428,848.34 in attorneys' fees
to them.
I. Prejudice
Judge Robinson denies the Plaintiffs' Motion for Voluntary
Dismissal, which seeks dismissal without prejudice. He finds that
any dismissal pursuant to Rule 41(a)(2) must be with prejudice.
Judge Robinson emphasizes that the claims being dismissed with
prejudice would be the individual claims brought by the named
Plaintiffs in the First Amended Complaint. The class claims for the
putative class would be dismissed without prejudice. No class has
been certified and no Party has addressed the requirements for
dismissal of the class claims alleged in the First Amended
Complaint. To the extent the Court is required to review the
dismissal of the class claims, Judge Robinson finds that the
dismissal of the First Amended Complaint's class claims without
prejudice will not harm any putative class members.
The Ninth Circuit has held that the language of Rule 41(a)(2)
"effectively provides the plaintiff with a reasonable period of
time within which either to refuse the conditional voluntary
dismissal by withdrawing the motion for dismissal or to accept the
dismissal despite the imposition of conditions." The Plaintiffs
will be accorded a reasonable period to decide whether to accept
dismissal with prejudice pursuant to Rule 41(a)(2) or to reject
dismissal with prejudice and continue litigating the action in the
Court.
II. Conditions
In their Opposition, the Defendants request four conditions
"alternatively, if the Court determines that dismissal without
prejudice is appropriate." Judge Robinson does not address the
alternative request for these conditions because he has determined
that dismissal with prejudice is appropriate. The Defendants
request a single condition, however, in the event of a
with-prejudice dismissal. Specifically, "if the Plaintiffs' counsel
chooses to convince the plaintiffs to dismiss their claims with
prejudice so that he can pursue a different case on behalf of
non-parties to the action, the Defendants request that the Court
retains jurisdiction to enforce the terms of the Protective Order."
The Protective Order, which was stipulated by the Parties and
entered by the Hon. Andrew G. Schopler, states that the Parties and
their attorneys will continue to be bound by the Protective Order
even after final termination of the action. Accordingly, the Court
already retains jurisdiction over the Protective Order and any
disputes arising from it. For this reason, Judge Robinson denies as
moot the Defendants' request for a new order retaining jurisdiction
over the Protective Order.
Conclusion
In light of the foregoing, Judge Robinson denies the Plaintiffs'
Motion for Voluntary Dismissal to the extent it seeks dismissal
without prejudice. He 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 the Order is electronically docketed,
the Plaintiff will 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 the action in
this Court. Should the Plaintiffs fail timely to file the ordered
notice, the Court will dismiss their individual claims with
prejudice pursuant to Rule 41(a)(2) and Civil Local Rule 83.1(a).
A full-text copy of the Court's Sept. 29, 2021 Order is available
at https://tinyurl.com/hcv4rmkv from Leagle.com.
EDGEWELL PERSONAL: Moran Files Suit in N.D. California
------------------------------------------------------
A class action lawsuit has been filed against Edgewell Personal
Care, LLC. The case is styled as Michelle Moran, individually land
on behalf of all others similarly situated v. Edgewell Personal
Care, LLC, Case No. 3:21-cv-07669-SK (N.D. Cal., Sept. 30, 2021).
The nature of suit is stated as Other Fraud.
The Edgewell Personal Care Company -- https://edgewell.com/ -- is
an American consumer products corporation headquartered in Shelton,
Connecticut.[BN]
The Plaintiff is represented by:
Katherine Anne Bruce, Esq.
Kelsey Elling, Esq.
Ryan J. Clarkson, Esq.
Shireen M. Clarkson, Esq.
WILSHIRE LAW FIRM
3055 Wilshire Boulevard 12th Floor
Los Angeles, CA 90010
Phone: (213) 381-9988
Fax: (213) 381-9989
Email: kbruce@clarksonlawfirm.com
kelling@clarksonlawfirm.com
rclarkson@clarksonlawfirm.com
sclarkson@clarksonlawfirm.com
EISAI INC: New York Mislabeling Class Suit Dismissed With Prejudice
-------------------------------------------------------------------
Steven Boranian, writing for Drug & Device Law, reports that some
things were never meant to go together. Oil and water. Ice cream
and ketchup. Harry Potter and Lord Voldemort (although fans of the
books will quickly point out that Boy Who Lived was actually linked
inextricably to his arch enemy). Picnics and honey bees. Elected
officials and the power to borrow money. You get the idea. Some
things are conceived in such different universes that that they
should not be combined, no matter how hard someone tries.
Prescription drugs and class actions. That is another combination
that never should be, and for good reason. Because of the nature of
prescription drugs and the way they are regulated and dispensed,
disputes involving prescription drugs unavoidably present issues
that are unique to each patient. Individual issues of warnings,
causation, and injury (among other things) overwhelm any attempt to
deal with prescription drugs in a collective fashion, which is why
class actions in the drug and medical device space are not very
common.
Consider for example a recent case from New York where the
plaintiff attempted to plead claims that would be certifiable as a
class, but wound up having her claims dismissed with prejudice
instead. The case is Zottola v. Eisai, Inc., No. 20-cv-02600, 2021
WL 4460563 (S.D.N.Y. Sept. 29, 2021), and the product involved was
a prescription weight control product voluntarily withdrawn from
the market because of a slight increased occurrence of cancer in a
clinical trial. Id. at *7. The plaintiff sued, but not because she
experienced cancer. She experience no alleged complication at all,
nor does she even appear to allege that the drug was not effective.
Instead, she alleged that the defendant's "labels and disclosures"
deceived her and a nationwide class of individuals into purchasing
the product. Id.
The plaintiff's failure to allege an injury and her vague reference
to "labels and disclosures" were not oversights. They were
intentional efforts to allege claims that she could pursue on a
classwide basis. Individual injury and causation issues? Not a
problem if you allege no injury at all. Individual issues of
reliance? Not a problem if you gloss over the alleged
misrepresentations in favor of purportedly uniform "labels and
disclosures."
That is what the plaintiff figured. But in watering down her claim
to the lowest common denominators (or more accurately, non-existent
denominators), the plaintiff failed to state a cause of action. As
in most putative class actions of this kind, the plaintiff's
marquee claim was consumer fraud, which in New York is a statutory
claim under New York's General Business Law (the "NYBGL"). She
failed to state a claim, however, for three reasons. First, the
plaintiff alleged no cognizable injury, as an allegation that she
"would not have purchased the product" but for the manufacturer's
allegedly deceptive conduct is insufficient to establish a
cognizable injury under New York law. Id. at *3. Here, the
plaintiff seems allegedly to have gotten exactly what she paid
for.
Second, the plaintiff did not allege "consumer oriented" conduct.
Remember the product was a prescription drug, and under New York's
learned intermediary rule, the manufacturer's duty to warn ran to
the prescribing physician, not the patient. As a result, the
alleged deceptive conduct—failing to provide adequate drug
warnings—was by definition not "consumer oriented." The plaintiff
urged the district court to create a new exception to the learned
intermediary rule for medicines that are "not life saving," but the
court correctly ruled that "the nature of the drug is irrelevant."
Id. at *4.
Third, by referring only to unspecified representations in the
"labels and disclosures" and doing so "on information and belief,"
the plaintiff did not allege conduct that was "materially
misleading." There simply was no "there" there. The plaintiff again
tried to create an exception for herself, this time by arguing that
she did not have to alleged fraud with any particularity because
she was asserting an "omission-based" claim. But an
"omission-based" claim runs headlong (again) into the learned
intermediary rule, because the manufacturer owed the plaintiff no
duty to disclose. That duty ran to the physician. Id. at *4-*5.
The plaintiff's other claims—conversion, implied warranty, fraud,
and unjust enrichment—all failed for similar reasons. Conversion
was a square peg in the plaintiff's alleged round hole. Id. at *6.
All the other claims were based on the allegation that the
defendant misled consumers by concealing a risk of cancer, and the
court already determined that the plaintiff had failed to allege
any materially misleading behavior. Id.
In our view, this order demonstrates the unavoidable tension
between class actions and prescription drugs. This plaintiff tried
to go general with her allegations, and she tried altogether to
avoid alleging an actual injury or deceptive conduct with any
specificity. Her design was to ease her own burden on class
certification, but she succeeded only in pleading herself out of
court. Plaintiff doubled down on this strategy by requesting leave
to amend, but in only a cursory manner and without explaining what
she could do to cure the deficiencies in her complaint Id. at
*11-*12. The district court therefore denied leave to amend and
"dismiss[ed] the offending Complaint with prejudice," which of
course clears the way for an appeal.
So there you have it. Two things that just don't go together. Like
Taylor Swift and romantic relationships. Ocean liners and icebergs.
Or fried chicken and waffles. Wait, fried chicken and waffles are a
thing, and it is delicious. Strike that last one. [GN]
EMPIRE SOLAR: Former Employees' Class Action Pending
----------------------------------------------------
Frank Jossi, writing for Energy News Network, reports that
Minnesota solar industry leaders are working with state officials
to tighten oversight of residential solar contractors after the
bankruptcy of a Utah-based company left dozens of homeowners with
unfinished projects.
The Minnesota Department of Labor and Industry reached an agreement
last week with the trustee of Empire Solar Group LLC, a national
solar installer that went bankrupt earlier this year. The trustee
promised to help 45 homeowners pay other installers to complete
their projects.
As the volume of residential solar installations grows in the
state, so too is the volume of complaints about installers. The
Minnesota Solar Energy Industries Association says the majority of
solar firms in the state are reputable companies, but it's received
emails complaining about individual installers.
The trade association is sharing that information with the state
attorney general's office and labor department for potential
investigation. If the problem involves an association member,
Executive Director Logan O'Grady said he will speak to state
officials and the contractor to help create a resolution.
"I wouldn't want to allow this to get out of hand and we're left
defending the existence of the solar industry," O'Grady said. "The
majority of our members and the majority of solar companies in the
state are good actors, and are trying to do the right thing for
their customers and run a business and make payroll for their
employees."
A string of solar company bankruptcies in recent years prompted
increased collaboration between the trade group and state
officials. Since 2018, Northstar Solar, Altaray Solar and Able
Energy closed shop, leaving dozens of clients scrambling to have
their installations completed. According to Minnesota-based
installers who have worked with their stranded clients, both
Altaray and Empire Solar had headquarters in Utah and used
high-pressure, door-to-door sales tactics to sign up customers.
Minneapolis attorney Jeremy Kalin has also been working with around
16 homeowners who say they are struggling to get work finished by
another Utah company.
Still, it's hard to gauge how many homeowners have been affected by
the installer bankruptcies. The state and the solar association
collect little overall data except when homeowners seek
compensation from the state's Contractor Recovery Fund, which
receives money from licensing fees. Just how many homeowners pay to
finish solar installations or find sympathetic contractors to do it
for free remains a question, O'Grady said.
Michael Allen, CEO of All Energy Solar, said he received calls from
frustrated customers of Empire Solar and other bankrupt firms.
Their stranded projects could take thousands of dollars to finish.
He's angered that companies go out of business and face no fines.
"We'd like to fix the customers going through this but we'd rather
figure out a way not to allow these companies to come in," Allen
said.
O'Grady and his members remain concerned with out-of-state
companies that have gone bankrupt and left customers with
half-finished solar systems. Homeowners in that situation have few
options for recourse. One is financial compensation from the
recovery fund, but that requires upfront legal work. Charles
Durenberger, director of licensing and enforcement for the state,
said a customer must first win a civil judgment against the solar
contractor. The contractor must have a residential building license
for clients to qualify for the recovery fund.
After past solar company failures, Xcel Energy began requiring
contractors using its Solar Rewards incentive program to have a
residential building license, Durenberger said. He said the
department has seen homeowners unable to access the fund because
their installers lacked residential building licenses.
Any Empire Solar client who signed a contract before Jan. 22, 2021,
for instance, cannot receive help from the recovery fund because
the company did not have a residential building license before that
date. Durenberger said that customers of a Wisconsin-based solar
firm that closed after the owner's death had no chance at the
recovery fund because the company farmed out work to subcontractors
and had no residential building license.
Altaray had both residential and electrical licenses, which led to
nine of its customers receiving nearly $46,523 from the recovery
fund in 2020, he said, and they used the money to complete
installations. Though the number was far fewer than the total
number of Altaray customers affected by the bankruptcy, others also
found relief. Kalin represented 21 Altaray clients who did not
receive money from the recovery fund but worked out confidential
settlements with the company.
Sometimes lending institutions collaborating with solar companies
pay to complete customers' projects after a collapse. Empire
Solar's bankruptcy trustee agreed to release 45 homeowners with
nearly completed projects from bankruptcy proceedings. That saves
them a significant amount of money, as much as $5,000, in attorney
and court fees.
Durenberger said the trustee arranged an agreement with Goodleap,
Empire's third-party lender, to complete projects with local
contractors at no additional cost to the homeowners. The trustee
also announced a plan to sell the company's remaining Minnesota
projects to local solar contractors who can then finish the
projects.
Empire Solar's founders remain mired in lawsuits. Former employees
brought a class action suit and the company that loaned Empire
Solar millions of dollars has now sued it in a New Jersey court,
bringing a wide range of charges.
Kalin said the trustee's decision does not surprise him. Many solar
lenders have provided homeowners relief. In the Altaray case,
"lenders stepped up and did the right thing" in helping clients
finish projects, he said.
O'Grady saw the Empire Solar deal as good enough. "As an
organization we felt relieved that there was finally going to be
some sort of resolution for these customers and we hope we can work
with them to get the solar installed," O'Grady said. He said that
two Twin Cities firms, All Energy Solar and TruNorth Solar, have
stepped forward to assist Empire Solar customers.
The Legislature will reconsider legislation that failed a few years
ago, which would require all solar contractors to have residential
building licenses, O'Grady said. The solar association may also try
to put together a buyer's guide to help homeowners and businesses
interested in solar.
Allen believes the state could consider having a nonprofit consider
applications to sell solar in Minnesota. The organization would
verify the solar company's record, financial status and marketing
materials and check whether they have complaints filed against them
locally and nationally. The Utah companies gave clients power
generation estimates 25% higher than possible for the size of the
installation, Allen found. "This would make sure you're not having
a lot of companies selling unrealistic projects," he said.
Durenberger said consumers have to read contractors closely and ask
to see evidence of a residential building license. For now it's
still a buyer-beware environment. "It hurts me when I hear these
stories of consumers that end up getting ripped off by these
contractors," he said. "But in many cases they could have easily
avoided the situation by not agreeing to a huge down payment, or
structuring their contract in a way that doesn't put them in a
situation where if a contractor does fail that they're in a
situation where they owe a lot of money." [GN]
ENDO HEALTH: Faces Antitrust Class Action Over Opana ER Products
----------------------------------------------------------------
Purchased Opana ER(R) or Its Generic Equivalent?
A Class Action Lawsuit May Affect Your Rights
Your rights may be affected by a class action lawsuit regarding the
price paid for brand or generic Opana ER (collectively, "Opana ER")
products by end payors (individuals and entities who purchase or
pay for drugs other than for resale) against Defendants Endo Health
Solutions Inc., Endo Pharmaceuticals Inc., Penwest Pharmaceuticals
Co., and Impax Laboratories, Inc. The case name is In re Opana ER
Antitrust Litigation, and the civil action number is 1:14-cv-10150
(N.D. Ill.). The lawsuit, which is pending in the United States
District Court for the Northern District of Illinois, asserts that
Defendants violated certain state antitrust, consumer protection,
and unjust enrichment laws, harming competition and causing class
members to overpay for Opana ER products sold by Defendants.
Defendants deny that they violated any laws.
PLEASE NOTE: This is NOT a recall, safety, or other similar notice.
This lawsuit is not about the safety or efficacy of Opana ER
products.
This is only a summary. The Court has not decided whether
Defendants did anything wrong. There is no money available now, and
no guarantee there will be. For additional details, please read the
Long-Form Notice available at www.opanaerantitrustlitigation.com.
Who Is Included?
On August 11, 2021, the Court certified the following End-Payor
Plaintiff Classes in this lawsuit (the "Classes"):
Antitrust/Consumer Protection Class: All persons or entities who
indirectly purchased, paid for, and/or provided reimbursement for
some or all of the purchase price for brand or generic Opana ER 5
mg, 10 mg, 20 mg, 30 mg, and/or 40 mg sold by Defendants, other
than for resale, in the states and commonwealths of Arizona,
California, Florida, Hawaii, Iowa, Maine, Michigan, Minnesota,
Missouri, Nebraska, Nevada, New Hampshire, New Mexico, New York,
North Carolina, North Dakota, Oregon, South Dakota, Tennessee,
Vermont, West Virginia, Wisconsin, and the District of Columbia
from April 2011 through September 2018; and Unjust Enrichment
Subclasses: All persons or entities who from April 2011 through
September 2018 indirectly purchased, paid for, and/or provided
reimbursement for some or all of the purchase price for brand or
generic Opana ER 5 mg, 10 mg, 20 mg, 30 mg, and/or 40 mg sold by
Defendants, other than for resale, in the following states and
commonwealths:
-- With respect to Arizona, Massachusetts, and Mississippi unjust
enrichment claims, class members must have purchased, paid for,
and/or provided reimbursement for some or all the purchase price of
brand or generic Opana ER from June 4, 2011 through September
2018.
A more detailed notice, including the exceptions to Class
membership, is available at www.opanaerantitrustlitigation.com.
Your Rights and Options
DO NOTHING: If you are a Class member and do nothing, you are
choosing to remain a Class member, and you may be able to share in
any money or benefits that may be recovered in this case. You will
be bound by all judgments and orders of the Court, including any
judgment in Defendants' favor, and you will give up your right to
sue the Defendants as part of any other lawsuit for the claims made
in this case.
EXCLUDE YOURSELF FROM THE CLASSES: If you exclude yourself from the
Classes (i.e., opt out), you will not be entitled to money or
benefits if they are awarded or recovered. You will not be bound by
any judgments or orders of the Court, and you will not give up your
right to hire your own lawyer and sue Defendants as part of any
other lawsuit for the claims made in this case. The deadline to
exclude yourself from the Classes is December 6, 2021. Specific
instructions on how to request exclusion are included in the
Long-Form Notice available to download at
www.opanaerantitrustlitigation.com.
The Trial
The Court has scheduled a trial to begin on June 7, 2022 in the
United States District Court for the Northern District of Illinois,
Everett McKinley Dirksen United States Courthouse, 219 South
Dearborn Street, Chicago, Illinois 60604. Any changes to the date
or location of the trial will be posted to the case website. [GN]
EOS FITNESS: Alonzo Files ADA Suit in C.D. California
-----------------------------------------------------
A class action lawsuit has been filed against EOS Fitness OPCO
Holdings, LLC, et al. The case is styled as Thuy Thanh Alonzo,
individually and on behalf of all others similarly situated v. EOS
Fitness OPCO Holdings, LLC, a Delaware limited liability company,
Does 1 to 10, inclusive, Case No. 2:21-cv-07825-ODW-MRW (C.D. Cal.,
Sept. 30, 2021).
The lawsuit is brought over alleged violation of the Americans with
Disabilities Act.
EOS Fitness Opco Holdings, LLC -- https://eosfitness.com/ --
operates as a holding company. The Company, through its
subsidiaries, owns and operates fitness centers.[BN]
The Plaintiff is represented by:
Binyamin I. Manoucheri, Esq.
Jasmine Behroozan, Esq.
Thiago Merlini Coelho, Esq.
WILSHIRE LAW FIRM
3055 Wilshire Boulevard 12th Floor
Los Angeles, CA 90010
Phone: (213) 381-9988
Fax: (213) 381-9989
Email: binyamin@wilshirelawfirm.com
jasmine@wilshirelawfirm.com
thiago@wilshirelawfirm.com
EQUIFAX INC: Unlawfully Reports Payday Loans Forgiven in Settlement
-------------------------------------------------------------------
Erin Shaak at classaction.org reports that proposed class action
filed centers on Equifax's allegedly unlawful reporting of debts
from payday lenders Plain Green, Great Plains and MobiLoans that
were forgiven as part of a nationwide class action settlement in
December 2019.
According to the 27-page case, the debts at issue stem from an
allegedly illegal "rent-a-tribe" scheme whereby the lenders
purported to be associated with Native American tribes in order to
skirt state usury laws. Years-long litigation against the companies
resulted in a December 2019 settlement through which loans made by
Plain Green, Great Plains and MobiLoans were forgiven-and thus,
should have been removed from consumers' credit reports, according
to the complaint.
Nevertheless, debt collectors Midwest Recovery and Consumer
Adjustment Company, Inc. (CACI) continued to report the forgiven
debts in order to coerce consumers into paying them, the lawsuit
alleges.
If that wasn't enough, Midwest Recovery, who the suit says has
engaged in particularly shady debt collection practices, has an
alleged habit of "re-aging" old debts that should have been removed
from consumers' credit reports seven years after they first became
delinquent. Per the case, this practice allows the debt collector
to pressure consumers into paying debts that, under federal law,
are too old to report.
According to the case, defendant Equifax Information Services, LLC,
as a consumer reporting agency, was obligated to adhere to
provisions of the Fair Credit Reporting Act (FCRA) that were
designed to "prevent this type of misconduct." By continuing to
report debts it knew were too old to be included on consumers'
credit reports or were otherwise forgiven in the "widely known and
publicized" class action settlement, Equifax has violated both the
FCRA and a similar California state law, the lawsuit alleges.
Which Debts Are We Talking About Here?
The debts at issue in the lawsuit arise from what has come to be
known as a "rent-a-tribe" scheme through which certain lenders
purport to partner with Native American tribes in order to shield
themselves from liability under state usury laws by exploiting the
tribes' sovereign immunity.
The case explains that payday lender Think Finance used Plain
Green, Great Plains and MobiLoans-three entities formed under
tribal law-as fronts to offer consumers small loans at excessively
high interest rates considered usurious under state laws. While
pretending to be run by Native American tribes, the lenders cited
the tribes' sovereign immunity as a means to avoid liability, the
suit says. The tribes, for their part, allowed the entities to use
their names in exchange for "a nominal fee" from the revenue
generated by the loans, yet in reality, had no control over the
businesses' everyday operations, according to the complaint.
"Extensive litigation" against Think Finance and related entities
established that these so-called "rent-a-tribe" schemes violated "a
host of state and federal lending laws," the suit says, and
resulted in a "groundbreaking" nationwide class action settlement
that received final approval in December 2019.
Under the terms of the deal, certain outstanding loans issued by
Great Plains, Plain Green and MobiLoans were canceled and the three
companies were instructed to assist with the removal of "derogatory
tradelines" associated with the debts from reports issued by
consumer reporting agencies, including Equifax.
According to the suit, the settlement should have ensured that the
unenforceable debts would no longer appear on consumers' credit
reports. Nevertheless, debt collectors Midwest Recovery and CACI
continued to report the debts as a means to coerce consumers into
repaying them, the lawsuit alleges.
Per the suit, it was Equifax's responsibility to ensure the
"maximum possible accuracy" of the information reported about
consumers. By allowing Midwest Recovery and CACI to continue
reporting the canceled debts, Equifax violated its duty under
federal and state law, the case alleges.
"Re-Aged" Debts
The lawsuit goes on to claim that some of the debts at issue in the
case were more than seven years old and thus should not have been
included in consumers' credit reports in the first place.
According to the suit, the FCRA mandates that adverse information
other than convictions of crimes must be removed from consumers'
reports after seven years. In order to avoid the "aging-off" of
debts, however, some creditors and debt collectors have undertaken
a practice whereby they "re-age" the obligation to make it appear
newer, the case says. This can be accomplished by simply changing
the "date of first delinquency," a standard field on all credit
reports with the "Big 3" credit reporting agencies, to a more
recent date, according to the complaint.
The lawsuit alleges that Equifax "freely allows" furnishers to
change the date of first delinquency "without providing any
explanation or justification" for doing so and has no policy,
practice or procedure in place to determine when a debt is
re-aged.
Moreover, the case claims Equifax either knew or should have known
that Midwest Recovery, in particular, frequently engages in the
practice of re-aging debts and is "an unreliable source of
information." Per the suit, the Consumer Financial Protection
Bureau's website displays hundreds of complaints against Midwest
Recovery, many of which refer to the debt collector's alleged
practice of "re-aging" debts. Additionally cited in the complaint
is a Federal Trade Commission action against Midwest Recovery in
which the agency found that the debt collector had placed "bogus or
highly questionable debts onto consumers' credit reports to coerce
them to pay the debts."
The lawsuit alleges that if Equifax had reasonable procedures in
place to ensure that Midwest Recovery was providing accurate
information, it would not have allowed the debt collector to report
old debts.
Who Does the Lawsuit Look to Cover?
Proposed in the complaint are several "classes," or groups that the
lawsuit looks to represent.
One proposed class looks to cover anyone in the U.S. for whom
Equifax furnished a consumer report anytime within the past two
years and while the case proceeds that contained an account with
Midwest Recovery where the original creditor of the loan was either
Plain Green, Great Plains or MobiLoans and the individual's
delinquency began more than seven-and-a-half years before the
report was issued.
The lawsuit also looks to represent anyone in the U.S. for whom
Equifax furnished a consumer report since December 19, 2019 that
contained an account where the original creditor of the loan was
either Plain Green, Great Plains or MobiLoans. A class has also
been proposed for California residents who fit the same criteria.
How Do I Join the Lawsuit?
There's typically nothing you need to do to join a class action
when it's first filed. If the case moves forward and settles,
that's when those affected, i.e., "class members," would be sent
notice of the settlement with instructions on how to claim their
share.
It's important to keep in mind that it could take months or years
for a class action to be resolved, which typically happens through
a dismissal or settlement.
For now, one of the best things you can do is to stay informed.
Check back to this page for updates or get class action news and
settlement information sent straight to your inbox by signing up
for ClassAction.org's free weekly newsletter here. [GN]
EQUIFAX INFORMATION: Faces Suit Over Inaccurate Consumer Reports
----------------------------------------------------------------
Abraham Jewett, writing for Top Class Actions, reports that Equifax
allowed debt collectors to report inaccurate, adverse, and outdated
information on consumer reports, affecting their credit scores, a
new class action lawsuit alleges.
Plaintiffs Elettra Meeks, Joseph De La Cruz, Stephanie Laguna, and
Amber Leonard claim the inaccurate reports were related to payday
loans which had already been forgiven as part of a nationwide class
action settlement.
Plaintiffs want to represent themselves and a nationwide Class of
consumers who had inaccurate debt information reported on their
credit scores released by Equifax.
Plaintiffs claim that, despite the payday loans being forgiven,
debt collectors Midwest Recovery and Consumer Adjustment Company,
Inc. (CACI) continued reporting the unenforceable debts in an
unlawful attempt to secure repayment.
"This improper continued reporting of debts unfairly, and by
design, pressures consumers into paying debts so that they will
stop appearing on their credit, dragging down their credit scores,"
states the Equifax lawsuit.
Midwest Recovery and CACI also "re-aged" the debt by altering its
delinquency date in order to make it look more recent than it
actually is to ensure it doesn't get removed from a consumer's
credit report, the class action lawsuit alleges.
False Equifax Credit Scores Allow Payday Lenders to Connive For
Repayment on Forgiven Debt
The Federal Trade Commission has been investigating Midwest
Recovery for placing "bogus or highly questionable debts onto
consumers' credit reports to coerce them to pay the debts,"
according to the class action lawsuit.
Plaintiffs claim Equifax allowed Midwest Recovery to report the
adverse and outdated information regarding consumers' debts by not
following procedures set forth by the Fair Credit Reporting Act
(FCRA).
"Congress enacted the (FCRA) to prevent this type of misconduct,"
states the Equifax lawsuit.
Plaintiffs argue that Equifax never should have allowed Midwest
Recovery and CACI to report the "bogus," debts to begin with
because they were already forgiven as part of a nationwide class
settlement.
"Equifax nonetheless allowed debt collectors, such as Midwest
Recovery and CACI, to inaccurately report that consumers had
outstanding balances on loans after the announcement of a
nationwide class action settlement," states the class action
lawsuit.
Plaintiffs claim Equifax has committed multiple FCRA violations and
are demanding a jury trial and relief in the form of actual,
statutory, and/or punitive damages for themselves and all Class
Members.
Have you had inaccurate debt information reported on your credit
score released by Equifax? Let us know in the comments!
The plaintiffs are represented by Craig C. Marchiando of Consumer
Litigation Associates, P.C.
The Equifax Credit Scores Class Action Lawsuit is Meeks, et al. v.
Equifax Information Services, LLC, Case No. 4:21-cv-07727, in the
U.S. District Court for the Northern District of California. [GN]
ESSENTIA HEALTH: Court Amends Scheduling Order in Kraft Suit
------------------------------------------------------------
In the class action lawsuit captioned as Kraft, et al., v. Essentia
Health, et al., Case No. 3:20-cv-00121 (D.N.D.), the Hon.
Magistrate Judge Alice R. Senechal entered an order adopting the
stipulation to amend the scheduling Order as follows:
-- Amended Pleadings due by Jan. 28, 2022.
-- Amended Pleadings to Add Punitive Damages due by
March 15, 2022.
-- Discovery due by March 31, 2022.
-- Discovery Motions due by April 15, 2022.
-- Join Additional Parties due by Jan 28, 2022.
-- Plaintiffs' class certification expert disclosures and
reports due by April 29, 2022.
-- Defendants' class certification expert disclosures and
reports due by May 13, 2022.
-- Plaintiffs' rebuttal class certification expert reports
due by June 30, 2022.
-- Plaintiffs' motion for class certification due by
April 29, 2022.
-- Defendants' response due by June 17, 2022.
-- Plaintiffs' reply, if any, due by July 15, 2022.
The nature of suit states diversity-product liability.
Essentia Health is an integrated healthcare system with facilities
in Minnesota, Wisconsin, and North Dakota.[CC]
EYEBOBS LLC: Settlement Class in Murphy Suit Initially Certified
----------------------------------------------------------------
In the class action lawsuit captioned as ANTHONY HAMOND MURPHY, on
behalf of himself and all others similarly situated, v. EYEBOBS,
LLC, Case No. 1:21-cv-00017-Erie (W.D. Pa.), the Hon. Judge Richard
A. Lanzillo entered an order:
1. granting the Plaintiff Anthony Hammond Murphy's unopposed
motion to certify class for settlement purposes and for
preliminary approval of class action settlement pursuant
to Fed. R. Civ. P. Rule 23(e);
2. preliminarily certifying the proposed Settlement Class
defined as:
"All blind or visually disabled individuals who use screen
reader auxiliary aids to navigate digital content and who
have accessed, attempted to access, or been deterred from
attempting to access, or who will access, attempt to
access, or be deterred from accessing the Website from the
United States;"
3. appointing and designating Plaintiff Murphy as the
representative of the settlement class;
4. appointing and designating Kevin W. Tucker, Esq., Kevin J.
Abramowicz, Esq., Lawrence H. Fisher, Esq., and the law
firm of East End Trial Group LLC as Class Counsel for the
Settlement Class; and
5. setting a fairness hearing on Thursday, January 20, 2022,
at 10:00 AM EST in the United States District Court for
the Western District of Pennsylvania, located at 17 South
Park Row, Erie, PA 16501, to determine whether the
Settlement Agreement shall be granted final approval, and
to address any related matters.
Eyebobs provides optical products.
A copy of the Court's order dated Oct. 6, 2021 is available from
PacerMonitor.com at https://bit.ly/3j40BAa at no extra charge.[CC]
FACEBOOK INC: Bid to Strike Cain Declaration in Yuan Suit Granted
-----------------------------------------------------------------
The U.S. District Court for the Northern District of California,
San Jose Division, grants the motion to strike the declaration of
Matthew Cain in the lawsuit styled FAN YUAN, et al., Plaintiffs v.
FACEBOOK, INC., et al., Defendants, Case No. 5:18-cv-01725-EJD
(N.D. Cal.).
The lawsuit is a putative securities fraud class action suit. The
Plaintiffs filed a Third Amended Complaint ("TAC") on Oct. 16,
2020. Exhibit C to the TAC is the Expert Declaration of Matthew D.
Cain, Ph.D., dated Oct. 15, 2020.
Pending before the Court is Defendants' Motion to Strike the
Declaration of Matthew Cain and References thereto in the Third
Amended Complaint.
The Defendants contend that the Cain Declaration should be stricken
because it is not a written instrument under Federal Rule of Civil
Procedure 10(c), and, therefore, is not part of the pleading and
may not be considered on the Defendants' motion to dismiss. They
also contend that the Cain Declaration and references thereto in
the TAC should be stricken because they are opinions, not facts.
The Plaintiffs filed an opposition, and the Defendants filed a
reply.
Background
In the Court's order granting the Defendants' motion to dismiss the
Plaintiffs' prior complaint--the Second Amended Complaint--the
Court concluded that the Plaintiffs had failed to plead loss
causation. In an attempt to address the pleading deficiency, the
Plaintiffs attached the Cain Declaration as Exhibit C to the TAC
and added, among other things, the allegations to the TAC that Dr.
Cain's expert analysis confirms the Lead Plaintiffs' loss causation
allegations.
Discussion
The inclusion of Dr. Cain's Declaration and opinions in the TAC is
procedurally improper, District Judge Edward J. Davila holds.
Affidavits and declarations are not allowed as pleading exhibits
unless they form the basis of the complaint, the Judge opines,
citing United States v. Ritchie, 342 F.3d 903, 907 (9th Cir. 2003).
Specifically, in the context of securities fraud litigation, courts
have stricken expert declarations that are attached to a
complaint.
Although Federal Rule of Civil Procedure 10(c) permits the Court to
treat a written instrument that is an exhibit to a pleading as part
of the pleading for all purposes, an expert affidavit, such as the
Cain Declaration, does not qualify as a "written instrument," Judge
Davila opines. An expert affidavit such as the Cain Declaration is
merely a piece of evidentiary matter that does not exist
independently of the complaint, and not a "written instrument"
within the meaning of Rule 10(c), the Judge explains.
The Plaintiffs do not address or distinguish many of the cases
cited by the Defendants. Instead, the Plaintiffs rely on other
cases, none of which the Court finds particularly helpful. For
instance, in MannKind, the court denied a motion to strike the
expert report, reasoning that there exists "no inflexible rule"
governing the sort of "written instruments" that may be attached to
a pleading and that the expert report served merely to buttress the
Plaintiffs' contentions, Judge Davila notes, citing In re MannKind
Sec. Actions, 835 F.Supp.2d 797, 821 (C.D. Cal. 2011).
In contrast, the Plaintiffs in this case retained Dr. Cain to
render opinions beyond merely data analysis, Judge Davila notes.
Specifically, the Plaintiffs rely on Dr. Cain to render opinions as
to (1) whether the alleged misstatements and/or omissions would be
expected to impact the investing decisions of a reasonable
investor; and (2) proximate cause.
The Plaintiffs acknowledge in their Opposition that Dr. Cain's
Declaration does not contain new facts or evidence, and implicitly
concede that it consists of opinions. Therefore, when deciding the
Defendants' motion to dismiss, the Court will not consider Dr.
Cain's opinions as set forth in paragraphs 722 through 724 of the
TAC and any other portions of the TAC that rely on those opinions.
Conclusion
The Defendants' Motion to Strike is granted.
A full-text copy of the Court's Order dated Sept. 30, 2021, is
available at https://tinyurl.com/4zw9kcj4 from Leagle.com.
FARADAY FUTURE: Bernstein Litowitz Probes Securities Violations
---------------------------------------------------------------
Prominent investor rights law firm Bernstein Litowitz Berger &
Grossmann LLP ("BLB&G") is investigating potential violations of
the federal securities laws by Faraday Future Intelligent Electric
Inc. ("Faraday Future" or the "Company") (NASDAQ: FFIE).
Founded in 2014, Faraday Future is a technology company focused on
the development of electric vehicles. On January 29, 2021, Faraday
Future went public through a merger with a special purpose
acquisition company ("SPAC").
BLB&G's investigation is focused on whether Faraday Future misled
investors about the Company's ability to produce an electric
vehicle. Our investigation was spurred by an October 7, 2021
investigative report, concluding that Faraday Future is unlikely to
ever sell a car. Among other things, the report noted that after
eight years in business, Faraday has "failed to deliver a car,"
"has reneged on promises to build factories in five localities in
the U.S. and China," "is being sued by dozens of unpaid suppliers,"
and "has failed to disclose that assets in China have been frozen
by courts." As a result, Faraday shares have decline precipitously
from a high over $20 per share to less than $8 per share.
The investigation is being led by BLB&G partner Scott R. Foglietta.
If you have information that could assist in this investigation as
a past employee or other interested party, or if you are a Faraday
Future investor who suffered a loss and would like to learn more
about our investigation, please contact BLB&G at (212) 554-4444,
via e-mail at inquiries@blbglaw.com, or through the form on our
website here.
About BLB&G
BLB&G is widely recognized worldwide as a leading law firm advising
institutional investors on issues related to corporate governance,
shareholder rights, and securities litigation. Since its founding
in 1983, BLB&G has built an international reputation for excellence
and integrity and pioneered the use of the litigation process to
achieve precedent-setting governance reforms. Unique among its
peers, BLB&G has obtained several of the largest and most
significant securities recoveries in history, recovering over $33
billion on behalf of defrauded investors. More information about
the firm can be found online at www.blbglaw.com.
This press release may be considered Attorney Advertising under the
applicable law and ethics rules of some jurisdictions. Prior
results do not guarantee a similar outcome. [GN]
FLRISH INC: Sued Over Unlawful Disclosure of Medical Information
----------------------------------------------------------------
John Doe, individually and on behalf of all others similarly
situated v. FLRISH, INC., a California corporation, FLRISH RETAIL
MANAGEMENT & SECURITY SERVICES LLC, a California limited liability
company, and PATIENTS MUTUAL ASSISTANCE COLLECTIVE CORPORATION, a
California corporation, Case No. 21CV000093 (Cal. Super. Ct., Oct.
12, 2021), is brought against the Defendants to stop them from
disclosing their customer's medical information in violation the
California Medical Information Act ("CMIA"), and other statutory
and common law privacy rights, and to otherwise obtain injunctive
and monetary relief for all persons injured by their conduct.
According to the complaint, the Defendants collect and store their
personal identifiable information of its customers ("PII")
(including names, email addresses, physical addresses, phone
numbers, etc.), and protected health information ("PHI") (including
prescription information for medical-cannabis, purchase history,
medical history, etc.). In fact, prior to 2018, the Plaintiff was
informed and believed that the Defendants would not sell any
customer medical-cannabis without a medical-cannabis identification
card or a prescription for medical-cannabis from the customer's
physician. Subsequent to January 1, 2018, the Plaintiff is informed
and believes that the Defendants only exempt a customer from sales
and use taxes if they are presented with similar evidence that the
customer is a medical-cannabis patient.
Subsequent to his purchase of medical-cannabis, the Plaintiff
received marketing text messages for the Defendants' cannabis
products which he is informed and believes were sent by Springbig.
Further, Plaintiff received email messages from third parties who
sell cannabis products at Defendants' retail locations. For
instance, Plaintiff has received marketing emails from Dark Heart
Nursery which purports to sell cannabis products at Defendants'
retail locations. Prior to those emails, Plaintiff never contacted
Dark Heart Nursery, nor otherwise sought information about it, and
thus is informed and believes that his identity and contact
information was provided by Defendants to Dark Heart Nursery.
At the time Plaintiff made his purchase from Defendants, he had no
idea, and could not reasonably expect, that his identity as a
medical-cannabis user would be shared with third parties. Plaintiff
did not consent to the sharing of his PH/PHI, or his identity as a
medical cannabis user, with any third party, for marketing purposes
or otherwise. In fact, Plaintiff reasonably expected that his
PH/PHI, and his identity as a medical cannabis user, would be held
private given the confidential nature of this information, a
commitment by which Defendants have not abided. The Plaintiff is
informed and believes that Defendants' conduct was willful and
knowing, entitling him to punitive damages in accordance with
California Civil Code, says the complaint.
The Plaintiff is a medical cannabis user, and was when he submitted
his PH/PHI to Defendants in conjunction with his purchase of
medicinal-cannabis.
FLRish, Inc. is a California company headquartered in Oakland,
California operating a cannabis retail establishment under the
brand name Harborside.[BN]
The Plaintiff is represented by:
Robert Ahdoot, Esq.
Christopher E. Stiner, Esq.
AHDOOT & WOLFSON, PC
2600 W. Olive A venue, Suite 500
Burbank, CA 91505
Phone: (310) 474-9111
Facsimile: (310) 474-8585
Email: rahdoot@ahdootwolfson.com
cstiner@ahdootwolfson.com
- and -
Rachel Kaufman, Esq.
KAUFMAN, P.A.
400 NW 26th Street
Miami, FL 33127
Phone: (305) 469-5881
Email: rachel@kaufmanpa.com
FORD MOTOR: N.D. Illinois Narrows Claims in O'Connor Liability Suit
-------------------------------------------------------------------
The U.S. District Court for the Northern District of Illinois,
Eastern Division, granted in part and denied in part the
Defendant's motion to dismiss the Consolidated Amended Class Action
Complaint in the lawsuit styled JUSTIN O'CONNOR, et al., on behalf
of himself and all other similarly situated, Plaintiffs v. FORD
MOTOR COMPANY, Defendant, Case No. 19-cv-5045, Consolidated with
Case Nos. 20-cv-1981, 20-cv-2095, and 20-cv-2612 (N.D. Ill.).
In particular, the motion to dismiss:
* Count 1, for breach of express warranty, is granted as to
Plaintiff Smith (one of several California Plaintiffs), but
otherwise denied;
* Count 2, for breach of implied warranty, is granted to the
extent it is based on the Massachusetts, New York, and
Pennsylvania implied warranties of fitness for a particular
purpose and the Illinois implied warranty of
merchantability, but otherwise denied;
* Count 3, for violation of the Magnuson-Moss Warranty Act, is
granted as to Plaintiff O'Connor (one of two Illinois
Plaintiffs), but otherwise denied;
* Count 4, for negligence, is granted as to California,
Florida, Illinois, Massachusetts, New Jersey, New York,
Pennsylvania, and Texas;
* Count 5, for fraud and fraudulent concealment, is granted as
to the California, Florida, Illinois, New Jersey, and
Pennsylvania fraud and fraudulent concealment claims, the
New York fraud claim, and the Massachusetts and Texas
fraudulent concealment claims; but denied as to the
Massachusetts and Texas fraud claims and the New York
fraudulent concealment claim;
* Count 6, for unjust enrichment, is granted as to California,
Florida, Illinois, Massachusetts, New Jersey, and New York,
but denied as to Pennsylvania and Texas;
* Count 7, for violation of the Illinois Consumer Fraud and
Deceptive Business Practices Act, is granted;
* Count 8, for violation of California's Song-Beverly Consumer
Warranty Act based on express warranties, is granted as to
Plaintiff Smith (one of several California Plaintiffs), but
otherwise denied;
* Count 9, for violation of California's Song-Beverly Consumer
Warranty Act based on implied warranties, is denied;
* Count 10, for breach of California's implied warranty of
merchantability, is denied;
* Count 11, for violation of California's Consumer Legal
Remedies Act, is denied;
* Count 12, for violation of California's Unfair Competition
Law, is denied;
* Count 13, for violation of Florida's Deceptive and Unfair
Trade Practices Act, is denied;
* Count 14, for breach of Massachusetts' implied warranty of
merchantability, is denied;
* Count 15, for breach of Massachusetts' implied warranty of
fitness for a particular purpose, is granted;
* Count 16, for violation of Massachusetts' Consumer
Protection Law, is denied;
* Count 17, for violation of the New Jersey Consumer Fraud
Act, is denied;
* Count 18, for violation of the New York General Business Law
Section 349, is denied;
* Count 19, for violation of the New York General Business Law
Section 350, is denied;
* Count 20, for violation of Pennsylvania's Unfair Trade
Practice and Consumer Protection Law, is denied;
* Count 21, for violation of Texas' implied warranty of
merchantability, is denied;
* Count 22, for violation of Texas' implied warranty of
fitness for a particular purpose, is granted; and
* Count 23, for violation of Texas' Deceptive Trade Practices
and Consumer Protection Act, is denied.
Counsel are directed to file a joint status report by no later than
October 21, 2021, that includes (a) a proposed discovery schedule;
and (b) a statement in regard to any settlement discussions and/or
any mutual request for a referral to the assigned Magistrate Judge
for a settlement conference.
Background
The Plaintiffs bring this class action complaint against Defendant
Ford Motor Company ("Defendant" or "Ford") for damages allegedly
arising out of the Defendant's sale and lease of 2017 to 2020 Model
Year Ford F-150 trucks with defective 10R80 10-speed automatic
transmissions.
The action was originally brought by Illinois Plaintiff Justin
O'Connor on behalf of himself and a proposed class. In July 2020,
the Executive Committee reassigned three related, higher-numbered
cases (Case Nos. 20-cv-1981, 20-cv-2095, and 20-cv-2612) to this
Court to be consolidated with Case No. 19-cv-5045. On Aug. 7, 2020,
the Court entered an order dismissing the amended complaint in the
lead case, but authorizing the Plaintiffs to file a second amended
complaint. The Plaintiffs filed their 127-page Consolidated Amended
Class Action Complaint ("Complaint") on Sept. 25, 2020.
The Defendant is a publicly traded company, incorporated in
Delaware and with a principal place of business in Dearborn,
Michigan. The 12 named Plaintiffs are individuals, who purchased or
leased Model Year 2017-2020 Ford F-150 vehicles that were designed,
manufactured, distributed, marketed, sold, and leased by the
Defendant or its parent, subsidiary, or affiliates. Each Vehicle
was equipped with a 10R80, which is a 10-speed automatic
transmission.
The Complaint explains that an automatic transmission is
essentially an automatic gear shifter. Instead of manually shifting
the gears with a clutch, the automatic transmission does it on its
own. The transmission acts as a powertrain to convert the vehicle
engine's force into a controlled source of power. It allows drivers
to safely and reliably accelerate and decelerate their vehicles.
The Plaintiffs have proposed a class that includes at least 100
members and aggregated claims that exceed $5 million, exclusive of
interest and costs. The proposed Class is defined as: "All persons
in the United States and its territories who formerly or currently
own or lease one or more of 2017 to 2020 Model Year Ford F-150
trucks with a 10R80 10-speed automatic transmission." The Complaint
also proposes Illinois, California, Florida, Massachusetts, New
Jersey, New York, Pennsylvania, and Texas Subclasses.
The Complaint details all of the Plaintiffs' decisions to buy or
lease their Vehicles from Ford and their experiences driving the
Vehicles. At a high level, many or most of the Plaintiffs performed
research before deciding to buy or lease their Vehicles, including
reviewing Vehicle specifications and advertising touting the
Vehicles' performance and reliability, as well as speaking with
salespeople at Ford dealerships. None of the Plaintiffs were
informed of the problems with the Vehicles' Transmissions. The
Plaintiffs allege that they would not have purchased/leased the
Vehicles or would have paid significantly less if they had known
that the Transmission contain a defect.
All of the Plaintiffs report experiencing problems with their
Transmissions, including a loud "clunking" or banging noise when
the engine starts; delayed engagement of the Transmission and gears
holding too long then roughly slamming into gear; and, most
seriously, the loss of acceleration and shifting capability while
driving. The Complaint alleges that because of the Defect, the
Class Vehicles are likely to suffer serious damages and potentially
catch fire if accidents occur, causing an unreasonable and extreme
risk of serious bodily harm or death to the Vehicle's occupants and
others in the vicinity. Nearly all of the Plaintiffs report that
they took their Vehicles into Ford dealerships for repairs and/or
complained to Ford, but the problems with their Vehicles were not
fixed and they were not provided the relief they requested.
The Complaint alleges that the Defendant knew or should have known
of the Transmission Defect prior to the Plaintiffs' purchase or
lease of their Vehicles. It details numerous complaints that
consumers filed with the National Highway Traffic Safety
Administration ("NHTSA") concerning the Transmissions, beginning in
late 2017 and continuing through 2020. The Defendant issued its
first Technical Service Bulletin ("TSB") concerning the Defect in
March 2018 and additional TSBs after that. The TSBs stated that
2017 and 2018 F-150 vehicles "may exhibit harsh/bumpy upshift,
downshift and/or engagement concerns." To address this problem, the
TSBs suggested reprogramming the powertrain control module ("PCM").
However, the Complaint alleges, Defendant's "adaptive transmission
shift strategy" fails to remedy the Transmission's shifting
problems. The Defendant nonetheless took no further steps to remedy
the problem, leaving the Plaintiffs and other members of the
proposed class with knowingly defective Vehicles.
Instead, the Complaint alleges, the Defendant misrepresented and
actively concealed the Transmission defect "through its website,
multimedia advertisements, brochures, and in-person statements by
its employees, authorized dealers, agents, sales representatives
and/or repair technicians--touting the defective transmission's
safety, reliability, enhanced responsiveness and performance."
The Complaint alleges that instead of disclosing the Transmission
defect, the Defendant has, "from 2017 to the present, attempted to
squelch public recognition of the Transmission Defect by
propagating the falsehood that the harsh and bumpy shifting in
Class Vehicles was 'normal,' through statements made to consumers
and the general public by Ford employees, authorized dealers,
agents, sales representatives and/or repair technicians, and
through TSBs which sought to normalize the poor performance and
safety issues." The Defendant has not recalled the Vehicles to
repair the Transmission Defect or offered to reimburse Vehicle
owners/leasees, who incurred costs relating to the Transmissions'
problems. The Defect has allegedly diminished the value of the
Vehicles, including their resale value.
Ford offers a "New Vehicle Limited Warranty" for three years or
36,000 miles, whichever occurs first (citing 2018 Model Year Ford
Warranty Guide). Ford also offers extended warranty coverage for
Powertrain components for five years or 60,000 miles, whichever
occurs first. This extended warranty coverage includes the
Transmission and all internal parts, clutch cover, seals and
gaskets, torque converter, transfer case (including all internal
parts), transmission case, and transmission mounts. Despite these
warranties, however, Ford refuses to replace or repair the
Transmissions and merely states that the abrupt and harsh shifting
is normal.
Based on these allegations, the Complaint asserts claims for breach
of express warranty under all eight states' laws (Count 1); breach
of implied warranty under Illinois, Florida, New Jersey, New York,
Massachusetts, and Pennsylvania law (Count 2); violation of the
federal Magnuson-Moss Warranty Act (Count 3); negligence (Count 4);
fraud/fraudulent concealment (Count 5); unjust enrichment (Count
6); violation of Illinois' Consumer Fraud and Deceptive Business
Practices Act (Count 7); violation of California's Song-Beverly
Consumer Warranty Act based on express warranties (Count 8) and
implied warranties (Count 9); breach of California's implied
warranty of merchantability (Count 10), Consumer Legal Remedies Act
(Count 11), and Unfair Competition Law (Count 12); violation of the
Florida Deceptive and Unfair Trade Practices Act (Count 13); breach
of Massachusetts' implied warranty of merchantability (Count 14),
implied warranty of fitness for a particular purpose (Count 15),
and Consumer Protection Law (Count 16); violation of New Jersey's
Consumer Fraud Act (Count 17); violation of New York General
Business Law Section 349 (Count 18) and Section 350 (Count 19);
violation of Pennsylvania's Unfair Trade Practice and Consumer
Protection Law (Count 20); and violation of Texas' implied warranty
of merchantability (Count 21), implied warranty of fitness for a
particular purpose (Count 22), and Deceptive Trade Practices and
Consumer Protection Act (Count 23).
Analysis
A. Breach of Express Warranty (Counts 1 and 8)
In Count 1, the Plaintiffs allege breach of express warranty in
violation of the Illinois, California, Florida, Massachusetts, New
Jersey, New York, Pennsylvania, and Texas statutes that codify
Section 2-313 of the Uniform Commercial Code ("UCC"). This count is
based on the Defendants' alleged breach of its "New Vehicle Limited
Warranty," which provides that "authorized Ford Motor Company
dealers will, without charge, repair, replace, or adjust all parts
on your vehicle that malfunction or fail during normal use during
the applicable coverage period due to a manufacturing defect in the
factory-supplied materials or factory workmanship."
In Count 1, the Plaintiffs allege that, as evidenced by the TSB
from Sept. 7, 2018, the Transmission Defect is covered by the New
Vehicle Limited Warranty. Similarly, in Count 8, the California
Plaintiffs allege that the Defendant's breach of the New Vehicle
Limited Warranty violates California's Song-Beverly Consumer
Warranty Act.
The Defendant argues that Counts 1 and 8 should be dismissed
because the New Vehicle Limited Warranty covers only manufacturing
defects, and the Plaintiffs have alleged only a design defect. The
Defendant insists that only a design defect is properly pled, as
confirmed by the sweeping scope of the other class action
allegations of the Complaint that the defect exists in "all" Class
Vehicles.
District Judge Robert M. Dow, Jr., notes that the Court is not
convinced that this issue can be decided based on the pleadings
alone. The Complaint's allegations do not compel the Court to
conclude that only a design defect, and not a manufacturing defect,
must be the root cause of the Transmission Defect.
At this early stage of the case, "it is logically possible that
either could be the case; perhaps the transmissions work badly even
though built as designed; or maybe they all were badly built, even
though well-patterned," Judge Dow opines, citing Francis v. General
Motors, LLC, 504 F.Supp.3d 659, 673 (E.D. Mich. 2020). That is,
even assuming that a manufacturing defect "is more likely to occur
sporadically, it is entirely possible that some grave error in
material or workmanship during assembly caused all Class Vehicles
to deviate from Defendant's intended design" (Granillo v. FCA US
LLC, 2016 WL 9405772, at *14 (D.N.J. Aug. 29, 2016)). Judge Dow
finds that this is in contrast to the cases relied on by the
Defendant, which allege specific design defects.
While the Complaint does not attempt to diagnose a precise cause of
the Defect, this is understandable and does not warrant dismissal,
Judge Dow holds. He explains that this is the type of information
that one would expect to be in the Defendant's possession and that
would require discovery and perhaps expert analysis to determine.
Judge Dow holds that the Complaint plausibly alleges, in the
alternative, that the Vehicles contain either manufacturing or
design defects.
B. Breach of Implied Warranty (Counts 2, 9, 10, 14, 15, 21, 22)
The Complaint asserts claims for violations of state laws codifying
U.C.C. Section 2-314, the implied warranty of merchantability, and
U.C.C. Section 2-315, the implied warranty of fitness for a
particular purpose. The Defendant moves to dismiss the breach of
implied warranty claims on several bases. In their response brief,
the Plaintiffs concede the claims that are based on an alleged
breach of the implied warranty of fitness for a particular purpose,
which include Count 2 to the extent it is based on Massachusetts
General Laws Ch. 106, Section 2-315, New York U.C.C. Law Section
2-315, and Pennsylvania Statutes and Consolidated Statutes Section
2315; Count 15, which is also based on Massachusetts General Laws
Ch. 106, Section 2-315; and Count 22, which is based on Texas
Business & Commercial Code Section 2-315.
Judge Dow holds that the motion to dismiss the conceded claims is
granted.
The Plaintiffs do not concede Count 14, which is based on
Massachusetts General Laws Ch. 106, Section 2-314, but the Court
agrees with the Defendant that this count is also properly
dismissed because it is duplicative of the breach of implied
warranty claim brought in Count 2, which is brought under both
Sections 2-314 and 2-315. The Plaintiffs do not respond to this
point.
The breach of implied warranty claims that remain to be evaluated
are those based on the implied warranty of merchantability, which
include: Count 2, which is based on Illinois, Florida, New Jersey,
New York, Massachusetts, and Pennsylvania statutory law; Count 9,
which alleges violations of California's Song Beverly Consumer
Warranty Act, Cal. Civ. Code Sections 1791 & 1792; Count 10, which
alleges violations of California Commercial Code Section 2314; and
Count 21, which alleges violations of Texas Business & Commercial
Code Section 2.314. In those counts, the Complaint alleges that
Defendant had a duty to ensure that its Transmissions are "fit for
the ordinary purposes for which transmissions are used and that
they pass without objection in the trade under the contract
description."
The Complaint alleges that the Defendant had actual knowledge of
the Defect, yet failed and refused to offer an effective remedy,
which breached the implied warranty of merchantability.
The Court grants the motion to dismiss Count 2 to the extent it is
based on alleged violation of 810 ILCS 5/2-314, but otherwise
denies the motion to dismiss the claims for breach of implied
warranty of merchantability.
C. Magnuson-Moss Warranty Act (Count 3)
The Defendant moves to dismiss the claim for violation of the
Magnuson-Moss Warranty Act ("MMWA") on three bases, the first two
of which can be disposed of in short order. The Defendant first
argues that the MMWA claim fails for lack of actionable state law
breach of warranty claims. Since the Plaintiffs have pled at least
one viable state law breach of warranty claim for each of the eight
states in which the named Plaintiffs reside, the MMWA claim remains
viable, as well.
Second, the Defendant argues--and the Plaintiffs concede--that
Plaintiff O'Connor's MMWA claim must be dismissed because he failed
to provide Ford with a reasonable opportunity to cure the alleged
breach before filing suit. The Court grants the motion to dismiss
the MMWA claim on this limited basis.
Third, the Defendant asserts that the entire MMWA claim must be
dismissed for absence of pre-suit notice to the Defendant, because
the Plaintiffs do not allege that they complied with the
alternative dispute resolution procedure set forth in the Warranty.
In particular, the Warranty expressly "requires vehicle owners,
before filing a claim under the MMWA, to follow the BBB Auto Line
mediation and arbitration process."
The Complaint does not allege that the Plaintiffs participated in
the Defendant's alternative dispute resolution procedure.
Nonetheless, the Court agrees with the Plaintiffs that dismissal on
this basis would be premature, as failure to participate in Ford's
informal dispute settlement procedure is an affirmative
defense--subject to waiver, tolling, and estoppel, that Ford may
raise, not that the Plaintiffs must negate in their Complaint,
citing Sanchez-Knutson v. Ford Motor Co., 52 F.Supp.3d at 1235
(S.D. Fla. 2014).
D. Negligence (Count 4), Fraud and Fraudulent Concealment Claims
Under California, Florida, and Pennsylvania Common Law (Counts 5),
and the Pennsylvania Unfair Trade Practice and Consumer Protection
Law (Count 20)
The Defendants move to dismiss all of these claims on the basis of
the economic loss rule. In general terms, the economic loss
doctrine denies a tort remedy for product defects when the loss is
rooted in disappointed contractual or commercial expectations.
Under this formulation of the doctrine, contract law provides the
proper remedy for disappointed commercial expectations, such as
when a product is unfit for its intended use (citing Moorman Mfg.
Co. v. Nat'l Tank Co., 435 N.E.2d 443, 450 (Ill. 1982)). Due to
these variations, the Court finds it necessary to analyze the
Defendants' economic loss doctrine arguments claim by claim and
state by state.
The Court notes that the Plaintiffs concede the negligence claim
(Count 4) to the extent it is brought under Illinois, Florida,
Texas, or New Jersey law. The Plaintiffs also concede the
fraud/fraudulent concealment claim (Count 5) to the extent it is
based on California or Pennsylvania law, as well as the claim for
violation of the Pennsylvania Unfair Trade Practice and Consumer
Protection Law (Count 20). The Court grants the motion to dismiss
the conceded claims.
The negligence claims that the Plaintiffs have not conceded are
based on California, Massachusetts, New York, and Pennsylvania law.
For reasons set forth in this Memorandum Opinion and Order, the
Defendants' motion to dismiss is granted as to all four of these
states. The negligence claim brought under California law is,
therefore, dismissed based on the economic loss doctrine.
For the reasons explained in this Memorandum Opinion and Order, the
Court grants the Defendant's motion to dismiss the California fraud
claim and the Florida Fraud and Fraudulent Concealment claims but
denies the motion to dismiss the Pennsylvania Unfair Trade Practice
and Consumer Protection Law ("UTPCPL") claim. The Court will follow
this more recent precedent and deny the Defendant's motion to
dismiss the UTPCPL claim based on the economic loss doctrine.
E. Fraud and Fraudulent Concealment (Count 5)
In Section V of their brief, the Defendant attempts to group
together all the common law fraud and fraudulent concealment claims
with the "fraud-based claims under state consumer protection
statutes," Counts 5, 7, 11-13, 16-20, and 23. However, Section V's
handling of the state consumer protection statutes is extremely
cursory and confined almost exclusively to footnotes, Judge Dow
observes.
Judge Dow notes that Section V never clearly lays out the elements
of proof required under each consumer fraud statute, nor does it
address whether proof of fraud is actually required as to all of
those laws--which is important given that some state consumer
protection statutes may allow claims to proceed on the grounds of
"unfair" or similar business practices that may not rise to the
level of being fraudulent.
Since the Court has already determined that the economic loss
doctrine bars the fraud and fraudulent concealment claims in
several of the states at issue, the Court confines its discussion
here to Illinois, Massachusetts, New Jersey, New York, and Texas.
The state consumer protection claims are addressed in a separate
section of the Analysis. As that discussion indicates, the Court
declines to dismiss any of those claims on grounds that the
Defendant never properly raises in its briefs, as perfunctory and
undeveloped arguments and arguments made only in footnotes are
waived.
In relation to the fraud claim, Judge Dow finds that the Complaint
plausibly alleges that, at some point prior to March 2018, "it is
logical to assume that Ford had to open an internal investigation
that led to its TSB." Judge Dow opines that it is not implausible
to infer that this investigation began at least a month before the
Defendant ultimately decided to issue a TSB addressing problem with
jerky and rough acceleration and deceleration. The exact details of
what the Defendant knew and when would likely be in its exclusive
knowledge and can be explored in discovery.
Judge Dow holds that the Complaint is sufficient to survive the
motion to dismiss.
F. Unjust Enrichment (Count 6)
The Defendant moves to dismiss the Plaintiffs' claims for unjust
enrichment under California, Florida, Massachusetts, New Jersey,
and New York law on the basis that a claim for unjust enrichment is
not cognizable where the plaintiff has an adequate remedy at
law--here, a claim under the relevant state's consumer protection
statute, which is based on the same facts as the unjust enrichment
claim.
The Court agrees as to California, Florida, Massachusetts, and New
York and will dismiss the unjust enrichment claim (Count 6) to the
extent it is based on those four states' common law. However, Judge
Dow holds that the Defendant has not convinced the Court that
dismissal on the pleadings would be appropriate as to New Jersey
and, therefore, denies the motion to dismiss as to that portion of
the claim.
G. State Consumer Protection Law Claims
For the most part, the Plaintiff's claims for violation of state
consumer protection laws are subject to Rule 9(b)'s heightened
pleading requirement because they are based on the same allegedly
fraudulent conduct on which the fraud and fraudulent concealment
claims are premised--that the Defendant knew about the Defect yet
concealed it and made misrepresentations about the Transmission.
Count 21 of the Complaint is for violation of Pennsylvania's UTPCP.
The Court already rejected Defendant's motion to dismiss this claim
based on the economic loss doctrine; however, the Defendant also
urges the dismissal of this claim on the basis that it contains
insufficient allegations that the Defendant made false or
misleading representations. However, as with the New York consumer
protection statutes, the Defendant never addresses the specific
requirements of a UTPCP claim or how they apply to the Pennsylvania
Plaintiff's factual allegations, Judge Dow notes.
As the Court's extensive discussion indicates, state law has many
nuances, which cannot be adequately addressed through a few
parentheticals in a footnote. Therefore, the Court will deny the
Defendant's motion to dismiss as to Counts 18, 19, and 21.
Judge Dow also holds, among other things, that the Defendant's
motion to dismiss the TDTPA claim is denied for the same reasons
the Court denies the motion to dismiss the Texas fraud claim. The
Court also agrees with the Plaintiffs that it is not clear that
Ford is "insulated from TDTPA liability by upstream manufacturer
status" under Chavez v. Ford Motor Co., 2018 WL 6190601 (W.D. Tex.
Sept. 26, 2018), as the Defendant contends, because Texas Plaintiff
McDonald alleges that Ford directly transacted with him by directly
communicating its misrepresentations to him via the Ford website
prior to purchase.
H. Statute of Limitations
The Defendant argues that California Plaintiff Steen's negligence,
fraud, unjust enrichment, and CLRA claims are barred by the
applicable California statutes of limitations and that Texas
Plaintiff McDonald's negligence, unjust enrichment, and TDTPA
claims are barred by the applicable Texas statutes of limitations.
In response, the Plaintiff argues that where, as in this case, the
dates pertinent to the running of the statute cannot be determined
from the allegations of the complaint, the matter cannot be decided
on a motion to dismiss, and defendants must raise the defense
through a motion for summary judgment or at trial (quoting
Deirmenjian v. Deutsch Bank, A.G., 526 F.2d 1068, 1074 (C.D. Cal.
2007)).
The Court agrees and declines to dismiss any claims based on a
statute of limitations defense.
I. Nationwide Class Allegations
The Complaint defines the proposed class to include "[a]ll persons
in the United States and its territories who formerly or currently
own or lease one or more of 2017 to 2020 Model Year Ford F-150
trucks with a 10R80 10-speed automatic transmission." It also
includes subclasses for Illinois, California, Florida,
Massachusetts, New Jersey, New York, Pennsylvania, and Texas
residents.
The Defendant moves to strike the "nationwide class allegations"
under Rule 12(f) on the basis that they are facially and inherently
deficient given all of the material distinctions among the
different laws to be applied to the members of the proposed class.
The Court agrees with the Plaintiffs that this issue is better left
to the class certification stage of the case, after class
discovery, the plaintiff's motion for certification, and the
benefit of full briefing on the issue of class certification.
The Defendant's extremely lengthy motion to dismiss briefs (which
would be much lengthier had the Defendant not moved much of its
analysis into footnotes) suggest that the laws applicable to the
eight subclasses are so varied that class treatment may not be
appropriate for even that smaller number of states, Judge Dow
opines. But while this may beg the question why the Defendant
pushed so strongly for consolidation in the first place, it does
not warrant striking the nationwide class allegations without the
benefit of class discovery or full briefing on class
certification.
The Defendant's motion to strike is, therefore, denied, Judge Dow
holds.
Conclusion
For these reasons, the Defendant's motion to dismiss the
Plaintiffs' amended complaint is granted in part and denied in
part, as detailed in the Opinion. Counsel are directed to file a
joint status report by no later than October 21, 2021, that
includes (a) a proposed discovery schedule; and (b) a statement in
regard to any settlement discussions and/or any mutual request for
a referral to the assigned Magistrate Judge for a settlement
conference.
A full-text copy of the Court's Memorandum Opinion and Order dated
Sept. 30, 2021, is available at https://tinyurl.com/4b24kvaj from
Leagle.com.
GEBRUEDER KNAUF: Bennett Suit Moved From N.D. Ala. to S.D. Ala.
---------------------------------------------------------------
The case styled ELIZABETH BENNETT, et al., individually and on
behalf of all others similarly situated v. GEBRUEDER KNAUF
VERWALTUNGSGESELLSCHAFT, KG; KNAUF INTERNATIONAL GMBH; KNAUF
INSULATION GMBH; KNAUF UK GMBH; KNAUF AMF GMBH & CO., KG; KNAUF DO
BRASIL LTD.; PT KNAUF GYPSUM INDONESIA; KNAUF GIPS KG; KNAUF
PLASTERBOARD TIANJIN CO., LTD.; KNAUF PLASTERBOARD WUHU, CO., LTD;
GUANGDONG KNAUF NEW BUILDING MATERIAL PRODUCTS CO., LTD., Case No.
5:14-cv-02204, was transferred from the U.S. District Court for the
Northern District of Alabama to the U.S. District Court for the
Southern District of Alabama on October 12, 2021.
The Clerk of Court for the Southern District of Alabama assigned
Case No. 1:21-cv-00447-KD-B to the proceeding.
The case arises from the Defendants' alleged negligence, negligence
per se, strict liability, breach of express and/or implied
warranty, redhibition, private nuisance, negligent discharge of a
corrosive substance, unjust enrichment, violations of the Louisiana
Products Liability Act and Consumer Protectional Acts, and
equitable and injunctive relief and medical monitoring by
manufacturing, distributing, and marketing defective drywall
products.
Gebrueder Knauf Verwaltungsgesellschaft, KG is an investment
holding company doing business in the U.S.
Knauf International GmbH is a provider of building materials based
in Iphofen, Germany.
Knauf Insulation GmbH is a manufacturer of insulation products,
with a principal place of business in Shelbyville, Indiana.
Knauf UK GmbH is a manufacturer of insulation and building products
based in Sittingbourne, England.
Knauf AMF GmbH & Co., KG is a manufacturer of insulation and
building products based in Grafenau, Germany.
Knauf Do Brasil Ltd. is a manufacturer of insulation and building
products based in Brazil.
PT Knauf Gypsum Indonesia is a manufacturer of insulation and
building products based in Indonesia.
Knauf GIPS KG is a manufacturer of insulation and building products
based in Iphofen, Germany.
Knauf Plasterboard Tianjin Co., Ltd. is a manufacturer of gypsum
drywall based in China.
Knauf Plasterboard Wuhu, Co., Ltd. is a manufacturer of gypsum
drywall based in China.
Guangdong Knauf New Building Material Products Co., Ltd. is a
manufacturer of building products based in China. [BN]
The Plaintiffs are represented by:
James V. Doyle, Jr., Esq.
DOYLE LAW FIRM, PC
2100 Southbridge Pkwy., Suite 650
Birmingham, AL 35209
Telephone: (205) 533-9500
Facsimile: (205) 332-1362
E-mail: jimmy@doylefirm.com
GEBRUEDER KNAUF: Bennett Suit Moved From N.D. Ala. to S.D. Fla.
---------------------------------------------------------------
The case styled ELIZABETH BENNETT, et al., individually and on
behalf of all others similarly situated v. GEBRUEDER KNAUF
VERWALTUNGSGESELLSCHAFT, KG; KNAUF INTERNATIONAL GMBH; KNAUF
INSULATION GMBH; KNAUF UK GMBH; KNAUF AMF GMBH & CO., KG; KNAUF DO
BRASIL LTD.; PT KNAUF GYPSUM INDONESIA; KNAUF GIPS KG; KNAUF
PLASTERBOARD TIANJIN CO., LTD.; KNAUF PLASTERBOARD WUHU, CO., LTD;
GUANGDONG KNAUF NEW BUILDING MATERIAL PRODUCTS CO., LTD., Case No.
5:14-cv-02204, was transferred from the U.S. District Court for the
Northern District of Alabama to the U.S. District Court for the
Southern District of Florida on October 7, 2021.
The Clerk of Court for the Southern District of Florida assigned
Case No. 1:21-cv-23542 to the proceeding.
The case arises from the Defendants' alleged negligence, negligence
per se, strict liability, breach of express and/or implied
warranty, redhibition, private nuisance, negligent discharge of a
corrosive substance, unjust enrichment, violations of the Louisiana
Products Liability Act and Consumer Protectional Acts, and
equitable and injunctive relief and medical monitoring by
manufacturing, distributing, and marketing defective drywall
products.
Gebrueder Knauf Verwaltungsgesellschaft, KG is an investment
holding company doing business in the U.S.
Knauf International GmbH is a provider of building materials based
in Iphofen, Germany.
Knauf Insulation GmbH is a manufacturer of insulation products,
with a principal place of business in Shelbyville, Indiana.
Knauf UK GmbH is a manufacturer of insulation and building products
based in Sittingbourne, England.
Knauf AMF GmbH & Co., KG is a manufacturer of insulation and
building products based in Grafenau, Germany.
Knauf Do Brasil Ltd. is a manufacturer of insulation and building
products based in Brazil.
PT Knauf Gypsum Indonesia is a manufacturer of insulation and
building products based in Indonesia.
Knauf GIPS KG is a manufacturer of insulation and building products
based in Iphofen, Germany.
Knauf Plasterboard Tianjin Co., Ltd. is a manufacturer of gypsum
drywall based in China.
Knauf Plasterboard Wuhu, Co., Ltd. is a manufacturer of gypsum
drywall based in China.
Guangdong Knauf New Building Material Products Co., Ltd. is a
manufacturer of building products based in China. [BN]
The Plaintiffs are represented by:
James V. Doyle, Jr., Esq.
DOYLE LAW FIRM, PC
2100 Southbridge Pkwy., Suite 650
Birmingham, AL 35209
Telephone: (205) 533-9500
Facsimile: (205) 332-1362
E-mail: jimmy@doylefirm.com
GEBRUEDER KNAUF: Bennett Suit Moved From N.D. Ala. to S.D. Tex.
---------------------------------------------------------------
The case styled ELIZABETH BENNETT, et al., individually and on
behalf of all others similarly situated v. GEBRUEDER KNAUF
VERWALTUNGSGESELLSCHAFT, KG; KNAUF INTERNATIONAL GMBH; KNAUF
INSULATION GMBH; KNAUF UK GMBH; KNAUF AMF GMBH & CO., KG; KNAUF DO
BRASIL LTD.; PT KNAUF GYPSUM INDONESIA; KNAUF GIPS KG; KNAUF
PLASTERBOARD TIANJIN CO., LTD.; KNAUF PLASTERBOARD WUHU, CO., LTD;
GUANGDONG KNAUF NEW BUILDING MATERIAL PRODUCTS CO., LTD., Case No.
5:14-cv-02204, was transferred from the U.S. District Court for the
Northern District of Alabama to the U.S. District Court for the
Southern District of Texas on October 8, 2021.
The Clerk of Court for the Southern District of Texas assigned Case
No. 4:21-cv-03287 to the proceeding.
The case arises from the Defendants' alleged negligence, negligence
per se, strict liability, breach of express and/or implied
warranty, redhibition, private nuisance, negligent discharge of a
corrosive substance, unjust enrichment, violations of the Louisiana
Products Liability Act and Consumer Protectional Acts, and
equitable and injunctive relief and medical monitoring by
manufacturing, distributing, and marketing defective drywall
products.
Gebrueder Knauf Verwaltungsgesellschaft, KG is an investment
holding company doing business in the U.S.
Knauf International GmbH is a provider of building materials based
in Iphofen, Germany.
Knauf Insulation GmbH is a manufacturer of insulation products,
with a principal place of business in Shelbyville, Indiana.
Knauf UK GmbH is a manufacturer of insulation and building products
based in Sittingbourne, England.
Knauf AMF GmbH & Co., KG is a manufacturer of insulation and
building products based in Grafenau, Germany.
Knauf Do Brasil Ltd. is a manufacturer of insulation and building
products based in Brazil.
PT Knauf Gypsum Indonesia is a manufacturer of insulation and
building products based in Indonesia.
Knauf GIPS KG is a manufacturer of insulation and building products
based in Iphofen, Germany.
Knauf Plasterboard Tianjin Co., Ltd. is a manufacturer of gypsum
drywall based in China.
Knauf Plasterboard Wuhu, Co., Ltd. is a manufacturer of gypsum
drywall based in China.
Guangdong Knauf New Building Material Products Co., Ltd. is a
manufacturer of building products based in China. [BN]
The Plaintiffs are represented by:
James V. Doyle, Jr., Esq.
DOYLE LAW FIRM, PC
2100 Southbridge Pkwy., Suite 650
Birmingham, AL 35209
Telephone: (205) 533-9500
Facsimile: (205) 332-1362
E-mail: jimmy@doylefirm.com
GEBRUEDER KNAUF: Caranna Suit Moved From N.D. Ala. to S.D. Miss.
----------------------------------------------------------------
The case styled MARY SUE CARANNA, et al., individually and on
behalf of all others similarly situated v. GEBRUEDER KNAUF
VERWALTUNGSGESELLSCHAFT, KG; KNAUF INTERNATIONAL GMBH; KNAUF
INSULATION GMBH; KNAUF UK GMBH; KNAUF AMF GMBH & CO., KG; KNAUF DO
BRASIL LTD.; PT KNAUF GYPSUM INDONESIA; KNAUF GIPS KG; KNAUF
PLASTERBOARD TIANJIN CO., LTD.; KNAUF PLASTERBOARD WUHU, CO., LTD;
GUANGDONG KNAUF NEW BUILDING MATERIAL PRODUCTS CO., LTD., Case No.
5:14-cv-02204, was transferred from the U.S. District Court for the
Northern District of Alabama to the U.S. District Court for the
Southern District of Mississippi on October 7, 2021.
The Clerk of Court for the Southern District of Mississippi
assigned Case No. 1:21-cv-00314-LG-RHWR to the proceeding.
The case arises from the Defendants' alleged negligence, negligence
per se, strict liability, breach of express and/or implied
warranty, redhibition, private nuisance, negligent discharge of a
corrosive substance, unjust enrichment, violations of the Louisiana
Products Liability Act and Consumer Protectional Acts, and
equitable and injunctive relief and medical monitoring by
manufacturing, distributing, and marketing defective drywall
products.
Gebrueder Knauf Verwaltungsgesellschaft, KG is an investment
holding company doing business in the U.S.
Knauf International GmbH is a provider of building materials based
in Iphofen, Germany.
Knauf Insulation GmbH is a manufacturer of insulation products,
with a principal place of business in Shelbyville, Indiana.
Knauf UK GmbH is a manufacturer of insulation and building products
based in Sittingbourne, England.
Knauf AMF GmbH & Co., KG is a manufacturer of insulation and
building products based in Grafenau, Germany.
Knauf Do Brasil Ltd. is a manufacturer of insulation and building
products based in Brazil.
PT Knauf Gypsum Indonesia is a manufacturer of insulation and
building products based in Indonesia.
Knauf GIPS KG is a manufacturer of insulation and building products
based in Iphofen, Germany.
Knauf Plasterboard Tianjin Co., Ltd. is a manufacturer of gypsum
drywall based in China.
Knauf Plasterboard Wuhu, Co., Ltd. is a manufacturer of gypsum
drywall based in China.
Guangdong Knauf New Building Material Products Co., Ltd. is a
manufacturer of building products based in China. [BN]
The Plaintiffs are represented by:
James V. Doyle, Jr., Esq.
DOYLE LAW FIRM, PC
2100 Southbridge Pkwy., Suite 650
Birmingham, AL 35209
Telephone: (205) 533-9500
Facsimile: (205) 332-1362
E-mail: jimmy@doylefirm.com
GEHL FOODS: Wiczek Sues Over Unpaid OT for Non-Exempt Employees
---------------------------------------------------------------
TERRI WICZEK, individually and on behalf of all others similarly
situated, Plaintiff v. GEHL FOODS, LLC, Defendant, Case No.
2:21-cv-01162-BHL (E.D. Wis., October 7, 2021) is a class action
against the Defendants for unpaid overtime and regular wages in
violation of the Fair Labor Standards Act and the Wisconsin's Wage
Payment and Collection Laws.
The Plaintiff has been employed by the Defendant as an hourly-paid,
non-exempt employee in the position of business unit lead in
Germantown, Wisconsin since September 2013.
Gehl Foods, LLC is a food product manufacturer with its principal
place of business located at N116 W15970, Germantown, Wisconsin.
[BN]
The Plaintiff is represented by:
James A. Walcheske, Esq.
Scott S. Luzi, Esq.
David M. Potteiger, Esq.
WALCHESKE & LUZI, LLC
235 N. Executive Drive, Suite 240
Brookfield, WI 53005
Telephone: (262) 780-1953
Facsimile: (262) 565-6469
E-mail: jwalcheske@walcheskeluzi.com
sluzi@walcheskeluzi.com
dpotteiger@walcheskeluzi.com
GOLDMAN SACHS: Tan Sues Over Unlawful Trading of Vipshop Stock
--------------------------------------------------------------
CHEW KING TAN, individually and on behalf of all others similarly
situated, Plaintiff v. GOLDMAN SACHS GROUP INC. and MORGAN STANLEY,
Defendants, Case No. 1:21-cv-08413 (S.D.N.Y., October 12, 2021) is
a class action against the Defendants for violations of Sections
20A, 10(b), and 20(a) of the Securities Exchange Act of 1934.
The case arises from the unlawful use of material non-public
information by the Defendants to avoid billions in losses by
selling shares of Vipshop Holdings Ltd. from March 22, 2021 through
and including March 29, 2021 after confidentially learning that
Archegos Capital Management, a family office with $10 billion under
management, failed to meet a margin call, requiring it to fully
liquidate its position in Vipshop. The Defendants knew, or were
reckless in not knowing, that they were prohibited from trading
based on this confidential market-moving information, but traded
anyway, disposing to the Plaintiff and other members of the Class
their Vipshop stock before the news about Archegos was announced
and Vipshop's shares plummeted. As a result, the Plaintiff and the
Class have been damaged, says the suit.
Goldman Sachs Group Inc. is a global financial services
institution, with its headquarters at 200 West Street, New York,
New York.
Morgan Stanley is a global financial services institution, with its
headquarters at 1585 Broadway, New York, New York. [BN]
The Plaintiff is represented by:
Thomas L. Laughlin, IV, Esq.
Rhiana L. Swartz, Esq.
Jonathan M. Zimmerman, Esq.
SCOTT+SCOTT ATTORNEYS AT LAW LLP
The Helmsley Building
230 Park Avenue, 17th Floor
New York, NY 10169
Telephone: (212) 223-6444
Facsimile: (212) 223-6334
E-mail: tlaughlin@scott-scott.com
rswartz@scott-scott.com
jzimmerman@scott-scott.com
- and –
David W. Hall, Esq.
Armen Zohrabian, Esq.
Arun Ravindran, Esq.
HEDIN HALL LLP
Four Embarcadero Center, Suite 1400
San Francisco, CA 94104
Telephone: (415) 766-3534
Facsimile: (415) 402-0058
E-mail: dhall@hedinhall.com
azohrabian@hedinhall.com
aravindran@hedinhall.com
- and –
Brian J. Schall, Esq.
THE SCHALL LAW FIRM
1880 Century Park E, Suite 404
Los Angeles, CA 90067-1604
Telephone: (310) 301-3335
Facsimile: (310) 388-0192
E-mail: brian@schallfirm.com
GONSALVES & SANTUCCI: Rodriguez Labor Suit Removed to N.D. Cal.
---------------------------------------------------------------
The case styled ELMER N. RODRIGUEZ, individually and on behalf of
all others similarly situated v. GONSALVES & SANTUCCI, INC. and
DOES 1 through 100, inclusive, Case No. C21-01735, was removed from
the Superior Court of the State of California, County of Contra
Costa, to the U.S. District Court for the Northern District of
California on October 7, 2021.
The Clerk of Court for the Northern District of California assigned
Case No. 3:21-cv-07874 to the proceeding.
The case arises from the Defendant's alleged violations of the
California Labor Code and the California Business and Professions
Code including failure to pay overtime, failure to pay minimum
wages, failure to provide meal periods or pay meal period premiums,
failure to provide rest periods or pay rest period premiums,
failure to pay all wages due at termination, failure to provide
accurate wage statements, failure to pay business expenses, failure
to pay vacation time, and unfair business practices.
Gonsalves & Santucci, Inc. is a concrete construction services
provider, headquartered in Concord, California. [BN]
The Defendant is represented by:
Gregory G. Iskander, Esq.
William J. Kim, Esq.
LITTLER MENDELSON P.C.
Treat Towers
1255 Treat Boulevard, Suite 600
Walnut Creek, CA 94597
Telephone: (925) 932-2468
Facsimile: (925) 946-9809
E-mail: giskander@littler.com
wkim@littler.com
GOOGLE LLC: Motion to Dismiss Gambling Class Action Challenged
--------------------------------------------------------------
Matthew Gideon, writing for Business of Esports, reports that
plaintiffs in a class-action lawsuit against Google recently
opposed a motion to dismiss the case. This comes after Northern
California plaintiffs alleged the company was violating gambling
laws through the use of loot boxes in video games.
"Loot boxes are predatory by design. They are structured like
traditional gambling games to exploit cognitive traps,
psychological triggers, and behavioral heuristics that cause people
to purchase them even when they know it is not in their interest to
do so," the suit stated.
When filing for a motion of dismissal, Google claimed it was
protected under section 230 of the Communications Decency Act.
However, the plaintiffs said Google is guilty of profiting off
gambling activity. As a result, they are placed outside of the
protection of section 230.
"Google encourages developers to create loot boxes and monetize
games through them, provides tools for them to do so, and then acts
as merchant for the illegal transaction," the plaintiffs said. [GN]
GRUBHUB INC: Lawson Labor Lawsuit Can't Proceed as Class Action
---------------------------------------------------------------
Anne Wallace, writing for LawyersandSettlements.com, reports that
on September 20, the Ninth Circuit partially dismissed, partially
upheld and remanded back to the District Court a GrubHub driver's
claim that he was owed back wages and other remedies under the
California Labor Code and related wage orders. Raef Lawson v.
Grubhub is a complicated decision, but there is some positive news
for gig workers who allege that they were misclassified as
independent contractors.
A Loss and a Win (Sort of) for GrubHub DriversThe bad news is that
Lawson's lawsuit cannot proceed as a class action. This is not
automatically fatal, but it may be impractical for him to pursue
his claim. The good news is that Proposition 22 does not
necessarily prohibit the retroactive application of the Dynamex
Operations West v. Superior Court of Los Angeles County "ABC" test
for determining who is an independent contractor.
FIRST, THE FACTS
For four months, from late 2015 to early 2016, Raef Lawson worked
for Grubhub, Inc. delivering food in the Los Angeles area. Grubhub
classified Lawson as an independent contractor rather than as an
employee. Lawson later sued Grubhub, arguing that he had been
misclassified -- that he should have been treated as an employee.
He alleged California Labor Code violations for failing to pay
minimum wage and overtime and failing to reimburse expenses. He
sought to represent a class of similarly situated delivery drivers
in California, and penalties under California's Private Attorneys
General Act (PAGA).
In 2018, the District Court for the Northern District of California
determined that under the rules of Borello v. Department of
Industrial Relations, the standard then in effect, Lawson was an
independent contractor. The District Court also denied him class
action certification. Lawson appealed to the Ninth Circuit.
NEW DEVELOPMENTS AT LIGHTNING SPEED
Then a lot of things began to happen very quickly. Three months
after the District Court's opinion, with Lawson's lawsuit was still
pending, the California Supreme Court adopted a new test
(short-handed as the "ABC" test) for determining whether a worker
was really an employee. Under the new test, it is far more likely
that a worker could prevail on his or her argument about
misclassification.
In September 2019, the California legislature codified the "ABC"
test into law. No longer was the new standard simply a matter of
court decision. It was a statute, actually somewhat broader in
application than the original Dynamex decision. Big app-based
employers like Uber and Grubhub saw this as an existential
challenge to their basic business model. Pushback ensued.
In November 2020, after intense lobbying, California voters passed
Proposition 22, which provides that if certain conditions are met,
app-based drivers" are independent contractors. Those conditions
include an earnings guarantee of 120 percent of the minimum wage, a
healthcare subsidy and insurance. The constitutionality of
Proposition 22 has also been challenged.
Meanwhile, the Ninth Circuit stayed Lawson's appeal, pending the
California Supreme Court's decision in Vazquez v. Jan-Pro
Franchising International, Inc., which was set to consider the
question of whether Dynamex should be applied retroactively. In
early 2021, the California Supreme Court held that the "ABC" test
should be applied retroactively to claims rooted in wage orders.
The statutory codification of the Dynamex "ABC" test, however,
should be applied only prospectively.
BACK TO RAEF LAWSON'S CALIFORNIA LABOR LAWSUIT
The Ninth Circuit, like the District Court, found that Lawson's
lawsuit did not qualify for class action status. Most of the
drivers in the lawsuit, unlike Lawson, had waived their right to
sue and signed agreements to arbitrate disputes. With only one
other driver who had refused to do so, the proposed class was
simply too small to justify class action status. This may take
Lawson out of the immediate picture.
As to the larger issue about retroactive application, the Ninth
Circuit recognized both minimum wage and overtime claims were
"rooted in wage orders," so it directed the District Court to apply
the "ABC" test to those claims. AB5 expressly provided that the
"ABC" test should be applied to all California Labor Code claims
after January 1, 2020. But Lawson had left Grubhub long before.
Thus, the Ninth Circuit also sent back to the District Court the
question of whether to apply the "ABC" test to a pre-2020 expense
reimbursement claim.
WHERE ARE WE NOW?
It appears that, except for app-based drivers who may receive the
benefits described in Proposition 22, the Dynamex "ABC" test is
still good law. With the same carve out, the slightly more
expansive AB5 appears to be good law from September 2019 onward.
The issue of misclassification is so important to app-based
behemoths, however, so new challenges to Dynamex and AB 5 are a
near certainty. [GN]
HAWX LLC: Collins Files TCPA Suit in N.D. Illinois
--------------------------------------------------
A class action lawsuit has been filed against Hawx, LLC. The case
is styled as Diamond B. Collins, individually, and on behalf of all
others similarly situated v. Hawx, LLC doing business as: Hawx Pest
Control, LLC, Case No. 1:21-cv-05401 (N.D. Ill., Oct. 12, 2021).
The lawsuit is brought over alleged violation of the Telephone
Consumer Protection Act for Restrictions of Use of Telephone
Equipment.
Hawx, LLC doing business as: Hawx Pest Control --
https://www.hawxpestcontrol.com/ -- serves customers in ten states
across the country, and offer pest control services.[BN]
The Plaintiff is represented by:
Jennifer Ann McLaughlin, Esq.
Mohammed Omar Badwan, Esq.
Omar Tayseer Sulaiman, Esq.
Victor Thomas Metroff, Esq.
Marwan R. Daher, Esq.
SULAIMAN LAW GROUP, LTD.
2500 S. Highland Avenue, Suite 200
Lombard, IL 60148
Phone: (331) 307-7646
Fax: (630) 575-8188
Email: jennifer.a.filipiak@gmail.com
mbadwan@sulaimanlaw.com
osulaiman@sulaimanlaw.com
vmetroff@sulaimanlaw.com
mdaher@sulaimanlaw.com
HEALTHCARE STAT: Edens Sues Over Unpaid Overtime for LPNs and CNAs
------------------------------------------------------------------
TYESHA EDENS, on behalf of herself and all others similarly
situated, Plaintiff v. HEALTHCARE STAT INC., MANILAL MATHAI, and
DAISY MANILAL, Defendants, Case No. 211000722 (Pa. Ct. Com. Pl.,
Philadelphia Cty., October 11, 2021) is a class action against the
Defendants for violation of the Pennsylvania Minimum Wage Act and
the Philadelphia Wage Theft Ordinance by failing to compensate the
Plaintiff and similarly situated licensed practical nurses (LPNs)
and certified nursing assistants (CNAs) overtime pay for all hours
worked in excess of 40 hours in a workweek.
Ms. Edens worked for the Defendants as a licensed practical nurse
since approximately July 2016.
Healthcare Stat, Inc. is a healthcare staffing company, with its
principal place of business at 9537 Bustleton Avenue, Philadelphia,
Pennsylvania. [BN]
The Plaintiff is represented by:
Franklin J. Rooks, Jr., Esq.
MORGAN ROOKS, P.C.
525 Route 73 North, Suite 104
Marlton, NJ, 08053
Telephone: (856) 874-8999
Facsimile: (856) 494-1707
E-mail: fjrooks@morganrooks.com
- and –
Ryan P. McCarthy, Esq.
James E. Goodley, Esq.
GOODLEY MCCARTHY LLC
1650 Market Street, Suite 3600
Philadelphia, PA 19103
E-mail: ryan@gmlaborlaw.com
HENRY MCMCASTER: South Carolina Files Suit in D. South Carolina
---------------------------------------------------------------
A class action lawsuit has been filed against Henry McMaster, et
al. The case is styled as The South Carolina State Conference of
the NAACP, Taiwan Scott, on behalf of himself and all other
similarly situated persons v. Henry D McMaster, in his official
capacity as Governor of South Carolina; Harvey Peeler, in his
official capacity as President of the Senate; Luke A Rankin, in his
official capacity as Chairman of the Senate Judiciary Committee;
James H Lucas, in his official capacity as Speaker of the House of
Representatives; Chris Murphy, in his official capacity as Chairman
of the House of Representatives Judiciary Committee; Wallace H
Jordan, in his official capacity as Chairman of the House of
Representatives Elections Law Subcommittee; Howard Knabb, in his
official capacity as interim Executive Director of the South
Carolina State Election Commission; John Wells, JoAnne Day,
Clifford J. Elder, Linda McCall, Scott Moseley, in their official
capacitiy as member of the South Carolina State Election
Commission; Case No. 3:21-cv-03302-JMC (D.S.C., Oct. 12, 2021).
The nature of suit is stated as State Reapportionment.
Henry Dargan McMaster --
https://governor.sc.gov/governors-biography -- is an American
politician, attorney, and member of the Republican Party who has
been the 117th governor of South Carolina since January 24,
2017.[BN]
The Plaintiff is represented by:
Christopher James Bryant
PERKINS COIE LLP
700 Thirteenth Street NW, Suite 800
Washington, DC 20005
Phone: (202) 654-6289
Fax: (202) 624-9513
Email: chris@boroughsbryant.com
- and -
David Allen Chaney , Jr
CHANEY LEGAL SERVICES
419 Vardry Street
Greenville, SC 29601
Phone: (720) 634-5493
Email: achaney@aclusc.org
HOMETOWN AMERICA: Opposition to Class Cert. Bid Due Feb. 3, 2022
----------------------------------------------------------------
In the class action lawsuit captioned as Bartok, et al., v.
Hometown America Management, LLC, et al., Case No. 4:21-cv-10790
(D. Mass.), the Hon. Judge Leo T. Sorokin entered an order as
follows:
-- discovery motion practice due November 15, 2021;
-- depositions due January 6, 2022;
-- opposition to pending motion for class certification due
February 3, 2022; and
-- Reply due February 28, 2022.
The nature of suit real property -- all other real property.[CC]
IIP-STORES LLC: Alonzo Files ADA Suit in C.D. California
--------------------------------------------------------
A class action lawsuit has been filed against IPP-Stores, LLC, et
al. The case is styled as Thuy Thanh Alonzo, individually and on
behalf of all others similarly situated v. IPP-Stores, LLC, doing
business as: Kriser's, a Delaware limited liability company, Does 1
to 10, inclusive, Case No. 2:21-cv-07818-PA-JEM (C.D. Cal., Sept.
30, 2021).
The lawsuit is brought over alleged violation of the Americans with
Disabilities Act.
IPP-Stores, LLC doing business as: Kriser's -- https://krisers.com/
-- specializes in providing all-natural dog & cat food, treats,
supplies and grooming.[BN]
The Plaintiff is represented by:
Binyamin I. Manoucheri, Esq.
Jasmine Behroozan, Esq.
Thiago Merlini Coelho, Esq.
WILSHIRE LAW FIRM
3055 Wilshire Boulevard 12th Floor
Los Angeles, CA 90010
Phone: (213) 381-9988
Fax: (213) 381-9989
Email: binyamin@wilshirelawfirm.com
jasmine@wilshirelawfirm.com
thiago@wilshirelawfirm.com
ILLINOIS: Class Certification Reply Extended to Nov. 19
-------------------------------------------------------
In the class action lawsuit captioned as Davis v. Illinois
Department of Human Services, Case No. 2:18-cv-02246 (C.D. Ill.),
the Hon. Judge Colin Stirling Bruce entered an order as follows:
-- Defendant's deadline to respond to Plaintiff's motion for
class certification is extended to Nov. 19, 2021;
-- Plaintiff's reply is due Dec. 20, 2021;
-- Extensions to any deadlines will not be granted; and
-- The Court directs the Clerk to administratively close this
case.
The suit alleges violation of the Family and Medical Leave Act.
The Illinois Department of Human Services is the department of the
Illinois state government responsible for providing a wide variety
of safety net services to Illinois residents in poverty, who are
facing other economic challenges, or who have any of a variety of
disabilities.[CC]
INDIVIOR PLC: Jan. 6, 2022 Settlement Fairness Hearing Set
----------------------------------------------------------
The Rosen Law Firm, P.A. on Oct. 11 disclosed that the United
States District Court for the District of New Jersey has approved
the following announcement of a proposed securities class action
settlement that would benefit purchasers of Indivior PLC securities
(OTCMKTS: INVVY):
SUMMARY NOTICE OF PENDENCY AND
PROPOSED SECURITIES CLASS ACTION SETTLEMENT
TO: ALL PERSONS WHO PURCHASED OR ACQUIRED ANY PUBLICLY-TRADED
SECURITIES OF INDIVIOR PLC LISTED ON A DOMESTIC EXCHANGE IN THE
UNITED STATES, INCLUDING AMERICAN DEPOSITARY RECEIPTS OF INDIVIOR
PLC, OR OTHERWISE ACQUIRED SECURITIES OF INDIVIOR PLC IN A DOMESTIC
TRANSACTION IN THE UNITED STATES, BETWEEN MARCH 10, 2015 THROUGH
APRIL 9, 2019, BOTH DATES INCLUSIVE.
YOU ARE HEREBY NOTIFIED, pursuant to an Order of the United States
District Court for the District of New Jersey, that a hearing will
be held on January 6, 2022, at 11:00 a.m. before the Honorable
Esther Salas, United States District Judge of the District of New
Jersey, 50 Walnut Street, Courtroom MLK 5A, Newark, New Jersey
07102 for the purpose of determining: (1) whether the proposed
Settlement of the claims in the above-captioned Action for
consideration including the sum of $2,000,000 should be approved by
the Court as fair, reasonable, and adequate; (2) whether the
proposed plan to distribute the Settlement proceeds is fair,
reasonable, and adequate; (3) whether the application of Lead
Counsel for attorneys' fees of up to one-third of the Settlement
Amount ($666,666.67) plus a proportionate share of interest accrued
on the Settlement Amount, Lead Counsel's reimbursement of
litigation expenses incurred of not more than $35,000, and Award to
Lead Plaintiff of not more than $5,000, should be approved; and (4)
whether the Action should be dismissed with prejudice as set forth
in the Stipulation and Agreement of Settlement, dated February 8,
2021 (the "Settlement Stipulation"). The Court reserves the right
to hold the Settlement Hearing telephonically or by other virtual
means.
If you purchased or otherwise acquired any publicly-traded
securities of Indivior listed on a domestic exchange in the United
States, including any American Depositary Receipts ("ADRs") of
Indivior, or otherwise acquired securities of Indivior in a
domestic transaction in the United States, between March 10, 2015
through April 9, 2019, both dates inclusive ("Settlement Class
Period"), your rights may be affected by this Settlement, including
the release and extinguishment of claims you may possess relating
to your ownership interest in Indivior securities. You may obtain
copies of the detailed Notice of Pendency and Proposed Settlement
of Securities Class Action ("Notice") and the Proof of Claim and
Release Form by writing to or calling the Claims Administrator:
Indivior PLC Securities Litigation, c/o Strategic Claims Services,
600 N. Jackson St., Ste. 205, P.O. Box 230, Media, PA 19063; (Tel)
(866) 274-4004; (Fax) (610) 565-7985; info@strategicclaims.net. You
can also download copies of the Notice and submit your Proof of
Claim and Release Form online at www.strategicclaims.net/Indivior/.
If you are a member of the Settlement Class, in order to share in
the distribution of the Net Settlement Fund, you must submit a
Proof of Claim and Release Form electronically or postmarked no
later than December 7, 2021 to the Claims Administrator,
establishing that you are entitled to recovery. Unless you submit a
written exclusion request, you will be bound by any judgment
rendered in the Action whether or not you make a claim.
If you are a Settlement Class Member and desire to be excluded from
the Settlement Class, you must submit to the Claims Administrator a
request for exclusion so that it is received no later than December
16, 2021, in the manner and form explained in the detailed Notice.
All members of the Settlement Class who have not requested
exclusion from the Settlement Class will be bound by any judgment
entered in the Action pursuant to the Settlement Stipulation.
Any objection by a Settlement Class Member to the Settlement, Plan
of Allocation, Lead Counsel's requests for an award to Lead Counsel
of attorneys' fees and reimbursement of expenses and Award to Lead
Plaintiff must be in the manner and form explained in the detailed
Notice and received no later than December 16, 2021, by each of the
following:
Clerk of the Court
United States District Court
District of New Jersey
Martin Luther King Building
& U.S. Courthouse
50 Walnut Street
Newark, NJ 07102
LEAD COUNSEL:
THE ROSEN LAW FIRM, P.A.
Daniel Tyre-Karp
275 Madison Avenue
40th Floor
New York, NY 10016
COUNSEL FOR DEFENDANTS:
COVINGTON & BURLING LLP
Mark P. Gimbel
The New York Times Building
620 Eighth Avenue
New York, NY 10018
If you have any questions about the Settlement, you may call or
write to Lead Counsel:
THE ROSEN LAW FIRM, P.A.
Daniel Tyre-Karp
275 Madison Avenue, 40th Floor
New York, NY 10016
Tel: (212) 686-1060
dtyrekarp@rosenlegal.com
PLEASE DO NOT CONTACT THE COURT OR THE CLERK'S OFFICE REGARDING
THIS NOTICE.
Dated: September 16, 2021
BY ORDER OF THE UNITED STATES
DISTRICT COURT FOR THE
DISTRICT OF NEW JERSEY [GN]
ISRAEL: Court Issues Interim Injunction in Immigration Class Action
-------------------------------------------------------------------
Sue Surkes, writing for The Times of Israel, reports that the
Beersheba District Court issues an interim injunction for seven
days prohibiting the Interior Ministry's immigration police from
enforcing deportation orders against some 50 members of the Hebrew
Israelites community, who live in southern city of Dimona.
Within these seven days, the Interior Ministry can appeal against
allowing the court to continue with a class action suit against the
deportation that has been submitted on behalf of the deportees.
If it does not appeal, the injunction will remain in place until
the judge decides on the case.
None of those ordered to leave by September 23 have done so. On
Oct. 10, immigration police started looking for them in employment
areas of the desert city.
Those who received deportation notices either entered Israel from
the United States as tourists and remained in the country illegally
once their permitted three-month stay was up, or are the children
of those who did so.
The Interior Ministry says that neither residency in Israel for a
long period nor work in the country are sufficient grounds for a
change of status.
The 3,000-strong community, which believes it is descended from an
ancient Israelite tribe, began arriving in Israel in 1969,
following the late Ben Carter, a Chicago steelworker who renamed
himself Ben Ammi Ben-Israel and claimed to be God's representative
on earth.
The community is not recognized as Jewish by Israel's religious
authorities. [GN]
ISRAEL: Hebrew Israelites' Immigration Class Action Ongoing
-----------------------------------------------------------
Sue Surkes, writing for The Times of Israel, reports that
immigration police began touring employment areas in the southern
city of Dimona on Oct.10 looking for 51 members of the Hebrew
Israelites Community who were ordered to leave the country by
September 23 on the grounds that they have no legal status to
stay.
"The enforcement of the deportation has begun and a few immigration
officers came to randomly check all the business areas of the
community," a Hebrew Israelites spokesman, Ashriel Moore, told the
Times of Israel.
Earlier this year, 17 letters were sent to the families containing
the 51 individuals, some of whom were born in Israel and some of
whose children have served in the IDF. They were told to leave
within 60 days but were given the right of appeal.
In response to their requests to be allowed to stay, the Interior
Ministry's Population and Immigration Authority wrote to each
family last month that neither residency in Israel for a long
period nor work in the country were sufficient grounds for a change
of status.
The September 23 deadline passed without any community members
leaving the country.
Following the Interior Ministry's rejection of the appeals, the
community turned to the Beersheba District Court, which asked it to
clarify why a class action suit was being requested.
The community's response is ready and due to be submitted to the
court, Moore said.
All 51 people who received deportation notices either entered
Israel from the United States as tourists and remained in the
country, illegally, once their permitted three-month stay was up,
or are the children of those who did so.
Some are adults who were born in Israel, according to Moore, who is
coordinating the campaign to stop the deportations. Of these, some
have their own children. Those who are not eligible for US
citizenship or have given it up are stateless and have nowhere to
go, he said.
The 3,000-strong community, which believes it is descended from an
ancient Israelite tribe, began arriving in Israel in 1969,
following the late Ben Carter, a Chicago steelworker who renamed
himself Ben Ammi Ben-Israel and claimed to be God's representative
on earth.
According to its website, the community, which permits polygamy,
does not subscribe to any religion "because religions have only
divided men." They do, however, observe the Sabbath and Jewish
holidays mentioned in the Torah, circumcise male children eight
days after birth, and require women to observe the biblical laws of
purification.
The community is not recognized as Jewish by Israel's religious
authorities. [GN]
JAMAICA PUBLIC: Faces Suit Over Disruption of Electricity Supply
----------------------------------------------------------------
Tameka Gordon, writing for The Gleaner, reports that paying
customers who allege that the Jamaica Public Service Company (JPS)
turns off electricity, sometimes for the entire day, as part of
measures to combat electricity theft could be on firm footing
should they decide to file a class-action suit against the power
company, one attorney believes.
Several residents of western and southeastern St Andrew have, in
recent days, complained that since June, the JPS has been
disrupting their electricity supply, for hours at a time, despite
their accounts not falling into arrears.
The matter has drawn the ire of political representatives and civil
society advocates, who note that the outages are not limited to
inner-city areas and are affecting customers islandwide, calling on
residents to sue the company for what they describe as a breach of
the terms of service.
The success of such a lawsuit "is quite possible", attorney-at-law
Alexander Williams told The Gleaner on Oct. 6.
"The civil procedure rules do provide for what Americans call a
class-action suit, but [which] is really called a representative
claim here in Jamaica [and] allows certain persons to represent a
particular class to make a claim, so it is entirely possible here,"
he said.
With the outages resulting in spoilage of food and the inability of
students to attend virtual classes and adults to work from home,
Williams said the residents would need to demonstrate that JPS's
perceived lapse in service delivery was not linked to any act of
God or maintenance issue.
"That is to say, they have fulfilled their obligations [by paying
their bills], and JPS is in breach of its obligations to provide
the service, or in other words, 'I have paid my bills and the light
just cut off.'"
Paying customers would also not have much difficulty in mounting a
case, he said, adding that the circumstances "sound like a pretty
good case to me".
Public Defender Arlene Harrison Henry said that while she is aware
of the concerns, legally, her office cannot offer any assistance as
the grouse does not lie with a state entity.
For some JPS customers in Woodford Park in southeastern St Andrew,
the situation has become overbearing.
Rudolph Campbell, an elderly resident, complained that his
perishable items have spoiled in the refrigerator due to loss of
power, and his monthly bill ranges from $10,000 to $11,000.
"People not supposed to live in this condition, and the worst part
about it is that we are paying," he said.
The JPS has continued to bemoan the impact of electricity theft on
its revenues and its ability to improve infrastructure and has
called on the Government to establish a special utility court to
prosecute electricity thieves, citing power theft of US$200 million
being a drain on its resources. The company said that it has spent
approximately US$150 million in the last five years to reduce
electricity theft.
Citing the St John's Road area in Spanish Town, St Catherine, the
JPS, on Oct. 6, said it continued to be faced with the cost of
replacing transformers due to illegal connections at a cost of $1.6
million, adding that since the start of the year, it has replaced
seven transformers in the area despite the typical 15- to 20-year
lifespan of the equipment.
The light and power company says the community has a theft rate of
96 per cent, with 25 out of the 650 residents being legal JPS
customers.
The community of Woodford Park in southeastern St Andrew has also
been fingered as stealing 83 per cent of the electricity supplied
to the area. Some paying customers of this community are among
those complaining of daily electricity disruptions.
For attorney Emile Leiba, the JPS's defence to the residents' claim
of breach of service contract could be bolstered by the evidence of
persistent electricity theft and the resultant damage to its
equipment and infrastructure.
"In some communities, people have throw-ups that disrupt the
service. So if it is that there are third-party actions that are
causing the disruption of service, then that is likely to result in
JPS having a successful defence," he said. [GN]
JAMES SCHIEBNER: Smith Files Petition in W.D. Michigan
------------------------------------------------------
A class action lawsuit has been filed against James Schiebner, et
al. The case is styled as Derrick Lee Smith #267009, named as
Derrick Lee Cardello-Smith and 37,000 similarly situated prisoners,
Petitioner v. James Schiebner, Warden; Probable Cause Conference
Director; Unknown Parties #1, named as all 83 Michigan County
Circuit Court Judges; Unknown Parties #2, named as all 83 County
Chief Prosecutors for Michigan; Unknown Parties #3, named as all 83
County City District Court Judges; Unknown Parties #4, named as all
83 County City Magistrate Judges; State Court Administrators
Probable Cause Conference Supervisor; Unknown Party, named as Bond
Supervisor for State of Michigan; Unknown Parties #5, named as all
Michigan Department of Corrections Wardens; Unknown Parties #6,
named as all State Appellate Court Judges; Kim L. Worthy, named as
Kimberly L. Worthy Wayne County Prosecutor; Heidi Washington,
Director of the MDOC; Respondents, Case No. 1:21-cv-00873-RSK (W.D.
Mich., Oct. 12, 2021).
The nature of suit is stated as Prisoner: Habeas Corpus for
Petition for Writ of Habeas Corpus (State).
James Schiebner is Deputy Warden at State of Michigan Department of
Corrections.[BN]
The Plaintiff appears pro se.
JUUL LABS: Bangor School Dept. Sues Over Youth E-Cigarette Epidemic
-------------------------------------------------------------------
BANGOR SCHOOL DEPARTMENT, on behalf of itself and all others
similarly situated, Plaintiff v. JUUL LABS, INC. F/K/A PAX LABS,
INC.; JAMES MONSEES; ADAM BOWEN; NICHOLAS PRITZKER; HOYOUNG HUH;
RIAZ VALANI; ALTRIA GROUP, INC.; ALTRIA CLIENT SERVICES LLC; ALTRIA
GROUP DISTRIBUTION COMPANY; and PHILIP MORRIS USA, INC.,
Defendants, Case No. 3:21-cv-07958 (N.D. Cal., October 11, 2021) is
a class action against the Defendants for negligence, gross
negligence, and violations of Public Nuisance Law and the Racketeer
Influenced and Corrupt Organizations Act.
According to the complaint, the Defendants used three tactics to
maintain market dominance in the cigarette industry: (1) product
design to maximize addiction, (2) mass deception, and (3) targeting
of youth. Defendants JUUL Labs and Adam Bowen designed an
e-cigarette device allegedly intended to create and sustain
addiction, but without the stigma associated with cigarettes and
promoted them to vulnerable young population. JUUL Labs and other
Defendants developed and implemented a marketing scheme to mislead
users into believing that JUUL products contained less nicotine
than they actually do and were healthy and safe. The Defendants
enticed newcomers to nicotine with kid-friendly flavors without
ensuring the flavoring additives were safe for inhalation. The
Defendants targeted the youth market by placing vaporized campaigns
on youth-oriented websites and media and using influencers and
affiliates to amplify their message to a teenage audience. The
Defendants have successfully caused more young people to start
using e-cigarettes, creating a youth e-cigarette epidemic and
public health crisis, says the suit.
Bangor School Department is a unified school district with its
offices located at 73 Harlow Street in Bangor, Maine.
JUUL Labs, Inc., formerly known as Pax Labs, Inc., is an American
electronic cigarette company, with its principal place of business
in San Francisco, California.
Altria Group, Inc. is a producer of tobacco products, with its
principal place of business in Richmond, Virginia.
Philip Morris USA, Inc. is a wholly-owned subsidiary of Altria
Group, Inc., with its principal place of business in Richmond,
Virginia.
Altria Client Services LLC is a tobacco company, with its principal
place of business in Richmond, Virginia.
Altria Group Distribution Company is a tobacco company, with its
principal place of business in Richmond, Virginia. [BN]
The Plaintiff is represented by:
James Frantz, Esq.
William B. Shinoff, Esq.
FRANTZ LAW GROUP, APLC
402 W. Broadway, Ste. 860
San Diego, CA 92101
Telephone: (619) 233-5945
Facsimile: (619) 525-7672
E-mail: jpf@frantzlawgroup.com
wshinoff@frantzlawgroup.com
JUUL LABS: Bangor Township Sues Over E-Cigarette Campaign to Youth
------------------------------------------------------------------
BANGOR TOWNSHIP SCHOOL DISTRICT, on behalf of itself and all others
similarly situated, Plaintiff v. JUUL LABS, INC. F/K/A PAX LABS,
INC.; JAMES MONSEES; ADAM BOWEN; NICHOLAS PRITZKER; HOYOUNG HUH;
RIAZ VALANI; ALTRIA GROUP, INC.; ALTRIA CLIENT SERVICES LLC; ALTRIA
GROUP DISTRIBUTION COMPANY; and PHILIP MORRIS USA, INC.,
Defendants, Case No. 3:21-cv-07959 (N.D. Cal., October 11, 2021) is
a class action against the Defendants for negligence, gross
negligence, and violations of Public Nuisance Law and the Racketeer
Influenced and Corrupt Organizations Act.
According to the complaint, the Defendants used three tactics to
maintain market dominance in the cigarette industry: (1) product
design to maximize addiction, (2) mass deception, and (3) targeting
of youth. Defendants JUUL Labs and Adam Bowen designed an
e-cigarette device allegedly intended to create and sustain
addiction, but without the stigma associated with cigarettes and
promoted them to vulnerable young population. JUUL Labs and other
Defendants developed and implemented a marketing scheme to mislead
users into believing that JUUL products contained less nicotine
than they actually do and were healthy and safe. The Defendants
enticed newcomers to nicotine with kid-friendly flavors without
ensuring the flavoring additives were safe for inhalation. The
Defendants targeted the youth market by placing vaporized campaigns
on youth-oriented websites and media and using influencers and
affiliates to amplify their message to a teenage audience. The
Defendants have successfully caused more young people to start
using e-cigarettes, creating a youth e-cigarette epidemic and
public health crisis, the suit says.
Bangor Township School District is a unified school district with
its offices located at 3359 E. Midland Road in Bay City, Michigan.
JUUL Labs, Inc., formerly known as Pax Labs, Inc., is an American
electronic cigarette company, with its principal place of business
in San Francisco, California.
Altria Group, Inc. is a producer of tobacco products, with its
principal place of business in Richmond, Virginia.
Philip Morris USA, Inc. is a wholly-owned subsidiary of Altria
Group, Inc., with its principal place of business in Richmond,
Virginia.
Altria Client Services LLC is a tobacco company, with its principal
place of business in Richmond, Virginia.
Altria Group Distribution Company is a tobacco company, with its
principal place of business in Richmond, Virginia. [BN]
The Plaintiff is represented by:
James Frantz, Esq.
William B. Shinoff, Esq.
FRANTZ LAW GROUP, APLC
402 W. Broadway, Ste. 860
San Diego, CA 92101
Telephone: (619) 233-5945
Facsimile: (619) 525-7672
E-mail: jpf@frantzlawgroup.com
wshinoff@frantzlawgroup.com
JUUL LABS: Baraboo School Sues Over Youth's E-Cigarette Addiction
-----------------------------------------------------------------
BARABOO SCHOOL DISTRICT, on behalf of itself and all others
similarly situated, Plaintiff v. JUUL LABS, INC. F/K/A PAX LABS,
INC.; JAMES MONSEES; ADAM BOWEN; NICHOLAS PRITZKER; HOYOUNG HUH;
RIAZ VALANI; ALTRIA GROUP, INC.; ALTRIA CLIENT SERVICES LLC; ALTRIA
GROUP DISTRIBUTION COMPANY; and PHILIP MORRIS USA, INC.,
Defendants, Case No. 3:21-cv-07955 (N.D. Cal., October 11, 2021) is
a class action against the Defendants for negligence, gross
negligence, and violations of Public Nuisance Law and the Racketeer
Influenced and Corrupt Organizations Act.
According to the complaint, the Defendants used three tactics to
maintain market dominance in the cigarette industry: (1) product
design to maximize addiction, (2) mass deception, and (3) targeting
of youth. Defendants JUUL Labs and Adam Bowen designed an
e-cigarette device allegedly intended to create and sustain
addiction, but without the stigma associated with cigarettes and
promoted them to vulnerable young population. JUUL Labs and other
Defendants developed and implemented a marketing scheme to mislead
users into believing that JUUL products contained less nicotine
than they actually do and were healthy and safe. The Defendants
enticed newcomers to nicotine with kid-friendly flavors without
ensuring the flavoring additives were safe for inhalation. The
Defendants targeted the youth market by placing vaporized campaigns
on youth-oriented websites and media and using influencers and
affiliates to amplify their message to a teenage audience. The
Defendants have successfully caused more young people to start
using e-cigarettes, creating a youth e-cigarette epidemic and
public health crisis, says the suit.
Baraboo School District is a unified school district with its
offices located at 423 Linn Street in Baraboo, Wisconsin.
JUUL Labs, Inc., formerly known as Pax Labs, Inc., is an American
electronic cigarette company, with its principal place of business
in San Francisco, California.
Altria Group, Inc. is a producer of tobacco products, with its
principal place of business in Richmond, Virginia.
Philip Morris USA, Inc. is a wholly-owned subsidiary of Altria
Group, Inc., with its principal place of business in Richmond,
Virginia.
Altria Client Services LLC is a tobacco company, with its principal
place of business in Richmond, Virginia.
Altria Group Distribution Company is a tobacco company, with its
principal place of business in Richmond, Virginia. [BN]
The Plaintiff is represented by:
James Frantz, Esq.
William B. Shinoff, Esq.
FRANTZ LAW GROUP, APLC
402 W. Broadway, Ste. 860
San Diego, CA 92101
Telephone: (619) 233-5945
Facsimile: (619) 525-7672
E-mail: jpf@frantzlawgroup.com
wshinoff@frantzlawgroup.com
JUUL LABS: Causes Youth E-Cigarette Crisis, Sullivan County Claims
------------------------------------------------------------------
SULLIVAN COUNTY BOARD OF COOPERATIVE EDUCATION, on behalf of itself
and all others similarly situated, Plaintiff v. JUUL LABS, INC.
F/K/A PAX LABS, INC.; JAMES MONSEES; ADAM BOWEN; NICHOLAS PRITZKER;
HOYOUNG HUH; RIAZ VALANI; ALTRIA GROUP, INC.; ALTRIA CLIENT
SERVICES LLC; ALTRIA GROUP DISTRIBUTION COMPANY; and PHILIP MORRIS
USA, INC., Defendants, Case No. 3:21-cv-07953 (N.D. Cal., October
11, 2021) is a class action against the Defendants for negligence,
gross negligence, and violations of Public Nuisance Law and the
Racketeer Influenced and Corrupt Organizations Act.
According to the complaint, the Defendants used three tactics to
maintain market dominance in the cigarette industry: (1) product
design to maximize addiction, (2) mass deception, and (3) targeting
of youth. Defendants JUUL Labs and Adam Bowen designed an
e-cigarette device allegedly intended to create and sustain
addiction, but without the stigma associated with cigarettes and
promoted them to vulnerable young population. JUUL Labs and other
Defendants developed and implemented a marketing scheme to mislead
users into believing that JUUL products contained less nicotine
than they actually do and were healthy and safe. The Defendants
enticed newcomers to nicotine with kid-friendly flavors without
ensuring the flavoring additives were safe for inhalation. The
Defendants targeted the youth market by placing vaporized campaigns
on youth-oriented websites and media and using influencers and
affiliates to amplify their message to a teenage audience. The
Defendants have successfully caused more young people to start
using e-cigarettes, creating a youth e-cigarette epidemic and
public health crisis, says the suit.
Sullivan County Board of Cooperative Education is a unified school
district with its offices located at 15 Sullivan Avenue Suite 1W in
Liberty, New York.
JUUL Labs, Inc., formerly known as Pax Labs, Inc., is an American
electronic cigarette company, with its principal place of business
in San Francisco, California.
Altria Group, Inc. is a producer of tobacco products, with its
principal place of business in Richmond, Virginia.
Philip Morris USA, Inc. is a wholly-owned subsidiary of Altria
Group, Inc., with its principal place of business in Richmond,
Virginia.
Altria Client Services LLC is a tobacco company, with its principal
place of business in Richmond, Virginia.
Altria Group Distribution Company is a tobacco company, with its
principal place of business in Richmond, Virginia. [BN]
The Plaintiff is represented by:
James Frantz, Esq.
William B. Shinoff, Esq.
FRANTZ LAW GROUP, APLC
402 W. Broadway, Ste. 860
San Diego, CA 92101
Telephone: (619) 233-5945
Facsimile: (619) 525-7672
E-mail: jpf@frantzlawgroup.com
wshinoff@frantzlawgroup.com
JUUL LABS: Delton Kellogg Sues Over Youth Health Crisis in Michigan
-------------------------------------------------------------------
DELTON KELLOGG SCHOOLS, on behalf of itself and all others
similarly situated, Plaintiff v. JUUL LABS, INC. F/K/A PAX LABS,
INC.; JAMES MONSEES; ADAM BOWEN; NICHOLAS PRITZKER; HOYOUNG HUH;
RIAZ VALANI; ALTRIA GROUP, INC.; ALTRIA CLIENT SERVICES LLC; ALTRIA
GROUP DISTRIBUTION COMPANY; and PHILIP MORRIS USA, INC.,
Defendants, Case No. 3:21-cv-07950 (N.D. Cal., October 11, 2021) is
a class action against the Defendants for negligence, gross
negligence, and violations of Public Nuisance Law and the Racketeer
Influenced and Corrupt Organizations Act.
According to the complaint, the Defendants used three tactics to
maintain market dominance in the cigarette industry: (1) product
design to maximize addiction, (2) mass deception, and (3) targeting
of youth. Defendants JUUL Labs and Adam Bowen designed an
e-cigarette device allegedly intended to create and sustain
addiction, but without the stigma associated with cigarettes and
promoted them to vulnerable young population. JUUL Labs and other
Defendants developed and implemented a marketing scheme to mislead
users into believing that JUUL products contained less nicotine
than they actually do and were healthy and safe. The Defendants
enticed newcomers to nicotine with kid-friendly flavors without
ensuring the flavoring additives were safe for inhalation. The
Defendants targeted the youth market by placing vaporized campaigns
on youth-oriented websites and media and using influencers and
affiliates to amplify their message to a teenage audience. The
Defendants have successfully caused more young people to start
using e-cigarettes, creating a youth e-cigarette epidemic and
public health crisis, says the suit.
Delton Kellogg Schools is a unified school district with its
offices located at 327 North Grove Street in Delton, Michigan.
JUUL Labs, Inc., formerly known as Pax Labs, Inc., is an American
electronic cigarette company, with its principal place of business
in San Francisco, California.
Altria Group, Inc. is a producer of tobacco products, with its
principal place of business in Richmond, Virginia.
Philip Morris USA, Inc. is a wholly-owned subsidiary of Altria
Group, Inc., with its principal place of business in Richmond,
Virginia.
Altria Client Services LLC is a tobacco company, with its principal
place of business in Richmond, Virginia.
Altria Group Distribution Company is a tobacco company, with its
principal place of business in Richmond, Virginia. [BN]
The Plaintiff is represented by:
James Frantz, Esq.
William B. Shinoff, Esq.
FRANTZ LAW GROUP, APLC
402 W. Broadway, Ste. 860
San Diego, CA 92101
Telephone: (619) 233-5945
Facsimile: (619) 525-7672
E-mail: jpf@frantzlawgroup.com
wshinoff@frantzlawgroup.com
JUUL LABS: E-Cigarette Ads Target Youth, Mason Schools Suit Claims
------------------------------------------------------------------
MASON PUBLIC SCHOOLS, on behalf of itself and all others similarly
situated, Plaintiff v. JUUL LABS, INC. F/K/A PAX LABS, INC.; JAMES
MONSEES; ADAM BOWEN; NICHOLAS PRITZKER; HOYOUNG HUH; RIAZ VALANI;
ALTRIA GROUP, INC.; ALTRIA CLIENT SERVICES LLC; ALTRIA GROUP
DISTRIBUTION COMPANY; and PHILIP MORRIS USA, INC., Defendants, Case
No. 3:21-cv-07951 (N.D. Cal., October 11, 2021) is a class action
against the Defendants for negligence, gross negligence, and
violations of Public Nuisance Law and the Racketeer Influenced and
Corrupt Organizations Act.
According to the complaint, the Defendants used three tactics to
maintain market dominance in the cigarette industry: (1) product
design to maximize addiction, (2) mass deception, and (3) targeting
of youth. Defendants JUUL Labs and Adam Bowen designed an
e-cigarette device allegedly intended to create and sustain
addiction, but without the stigma associated with cigarettes and
promoted them to vulnerable young population. JUUL Labs and other
Defendants developed and implemented a marketing scheme to mislead
users into believing that JUUL products contained less nicotine
than they actually do and were healthy and safe. The Defendants
enticed newcomers to nicotine with kid-friendly flavors without
ensuring the flavoring additives were safe for inhalation. The
Defendants targeted the youth market by placing vaporized campaigns
on youth-oriented websites and media and using influencers and
affiliates to amplify their message to a teenage audience. The
Defendants have successfully caused more young people to start
using e-cigarettes, creating a youth e-cigarette epidemic and
public health crisis, says the suit.
Mason Public Schools is a unified school district with its offices
located at 201 Ash Street Suite 2A in Mason, Michigan.
JUUL Labs, Inc., formerly known as Pax Labs, Inc., is an American
electronic cigarette company, with its principal place of business
in San Francisco, California.
Altria Group, Inc. is a producer of tobacco products, with its
principal place of business in Richmond, Virginia.
Philip Morris USA, Inc. is a wholly-owned subsidiary of Altria
Group, Inc., with its principal place of business in Richmond,
Virginia.
Altria Client Services LLC is a tobacco company, with its principal
place of business in Richmond, Virginia.
Altria Group Distribution Company is a tobacco company, with its
principal place of business in Richmond, Virginia. [BN]
The Plaintiff is represented by:
James Frantz, Esq.
William B. Shinoff, Esq.
FRANTZ LAW GROUP, APLC
402 W. Broadway, Ste. 860
San Diego, CA 92101
Telephone: (619) 233-5945
Facsimile: (619) 525-7672
E-mail: jpf@frantzlawgroup.com
wshinoff@frantzlawgroup.com
JUUL LABS: Faces McFarland Suit Over E-Cigarette Campaign to Youth
------------------------------------------------------------------
MCFARLAND SCHOOL DISTRICT, on behalf of itself and all others
similarly situated, Plaintiff v. JUUL LABS, INC. F/K/A PAX LABS,
INC.; JAMES MONSEES; ADAM BOWEN; NICHOLAS PRITZKER; HOYOUNG HUH;
RIAZ VALANI; ALTRIA GROUP, INC.; ALTRIA CLIENT SERVICES LLC; ALTRIA
GROUP DISTRIBUTION COMPANY; and PHILIP MORRIS USA, INC.,
Defendants, Case No. 3:21-cv-07957 (N.D. Cal., October 11, 2021) is
a class action against the Defendants for negligence, gross
negligence, and violations of Public Nuisance Law and the Racketeer
Influenced and Corrupt Organizations Act.
According to the complaint, the Defendants used three tactics to
maintain market dominance in the cigarette industry: (1) product
design to maximize addiction, (2) mass deception, and (3) targeting
of youth. Defendants JUUL Labs and Adam Bowen designed an
e-cigarette device allegedly intended to create and sustain
addiction, but without the stigma associated with cigarettes and
promoted them to vulnerable young population. JUUL Labs and other
Defendants developed and implemented a marketing scheme to mislead
users into believing that JUUL products contained less nicotine
than they actually do and were healthy and safe. The Defendants
enticed newcomers to nicotine with kid-friendly flavors without
ensuring the flavoring additives were safe for inhalation. The
Defendants targeted the youth market by placing vaporized campaigns
on youth-oriented websites and media and using influencers and
affiliates to amplify their message to a teenage audience. The
Defendants have successfully caused more young people to start
using e-cigarettes, creating a youth e-cigarette epidemic and
public health crisis, says the suit.
McFarland School District is a unified school district with its
offices located at 5101 Farwell Street in McFarland, Wisconsin.
JUUL Labs, Inc., formerly known as Pax Labs, Inc., is an American
electronic cigarette company, with its principal place of business
in San Francisco, California.
Altria Group, Inc. is a producer of tobacco products, with its
principal place of business in Richmond, Virginia.
Philip Morris USA, Inc. is a wholly-owned subsidiary of Altria
Group, Inc., with its principal place of business in Richmond,
Virginia.
Altria Client Services LLC is a tobacco company, with its principal
place of business in Richmond, Virginia.
Altria Group Distribution Company is a tobacco company, with its
principal place of business in Richmond, Virginia. [BN]
The Plaintiff is represented by:
James Frantz, Esq.
William B. Shinoff, Esq.
FRANTZ LAW GROUP, APLC
402 W. Broadway, Ste. 860
San Diego, CA 92101
Telephone: (619) 233-5945
Facsimile: (619) 525-7672
E-mail: jpf@frantzlawgroup.com
wshinoff@frantzlawgroup.com
JUUL LABS: Faces Union City Suit Over Youth E-Cigarette Addiction
-----------------------------------------------------------------
UNION CITY COMMUNITY SCHOOLS, on behalf of itself and all others
similarly situated, Plaintiff v. JUUL LABS, INC. F/K/A PAX LABS,
INC.; JAMES MONSEES; ADAM BOWEN; NICHOLAS PRITZKER; HOYOUNG HUH;
RIAZ VALANI; ALTRIA GROUP, INC.; ALTRIA CLIENT SERVICES LLC; ALTRIA
GROUP DISTRIBUTION COMPANY; and PHILIP MORRIS USA, INC.,
Defendants, Case No. 3:21-cv-07954 (N.D. Cal., October 11, 2021) is
a class action against the Defendants for negligence, gross
negligence, and violations of Public Nuisance Law and the Racketeer
Influenced and Corrupt Organizations Act.
According to the complaint, the Defendants used three tactics to
maintain market dominance in the cigarette industry: (1) product
design to maximize addiction, (2) mass deception, and (3) targeting
of youth. Defendants JUUL Labs and Adam Bowen designed an
e-cigarette device allegedly intended to create and sustain
addiction, but without the stigma associated with cigarettes and
promoted them to vulnerable young population. JUUL Labs and other
Defendants developed and implemented a marketing scheme to mislead
users into believing that JUUL products contained less nicotine
than they actually do and were healthy and safe. The Defendants
enticed newcomers to nicotine with kid-friendly flavors without
ensuring the flavoring additives were safe for inhalation. The
Defendants targeted the youth market by placing vaporized campaigns
on youth-oriented websites and media and using influencers and
affiliates to amplify their message to a teenage audience. The
Defendants have successfully caused more young people to start
using e-cigarettes, creating a youth e-cigarette epidemic and
public health crisis, says the suit.
Union City Community Schools is a unified school district with its
offices located at 430 St. Joseph Street in Union City, Michigan.
JUUL Labs, Inc., formerly known as Pax Labs, Inc., is an American
electronic cigarette company, with its principal place of business
in San Francisco, California.
Altria Group, Inc. is a producer of tobacco products, with its
principal place of business in Richmond, Virginia.
Philip Morris USA, Inc. is a wholly-owned subsidiary of Altria
Group, Inc., with its principal place of business in Richmond,
Virginia.
Altria Client Services LLC is a tobacco company, with its principal
place of business in Richmond, Virginia.
Altria Group Distribution Company is a tobacco company, with its
principal place of business in Richmond, Virginia. [BN]
The Plaintiff is represented by:
James Frantz, Esq.
William B. Shinoff, Esq.
FRANTZ LAW GROUP, APLC
402 W. Broadway, Ste. 860
San Diego, CA 92101
Telephone: (619) 233-5945
Facsimile: (619) 525-7672
E-mail: jpf@frantzlawgroup.com
wshinoff@frantzlawgroup.com
JUUL LABS: Hillsboro School District Sues Over E-Cigarette Crisis
-----------------------------------------------------------------
HILLSBORO SCHOOL DISTRICT, on behalf of itself and all others
similarly situated, Plaintiff v. JUUL LABS, INC. F/K/A PAX LABS,
INC.; JAMES MONSEES; ADAM BOWEN; NICHOLAS PRITZKER; HOYOUNG HUH;
RIAZ VALANI; ALTRIA GROUP, INC.; ALTRIA CLIENT SERVICES LLC; ALTRIA
GROUP DISTRIBUTION COMPANY; and PHILIP MORRIS USA, INC.,
Defendants, Case No. 3:21-cv-07956 (N.D. Cal., October 11, 2021) is
a class action against the Defendants for negligence, gross
negligence, and violations of Public Nuisance Law and the Racketeer
Influenced and Corrupt Organizations Act.
According to the complaint, the Defendants used three tactics to
maintain market dominance in the cigarette industry: (1) product
design to maximize addiction, (2) mass deception, and (3) targeting
of youth. Defendants JUUL Labs and Adam Bowen designed an
e-cigarette device allegedly intended to create and sustain
addiction, but without the stigma associated with cigarettes and
promoted them to vulnerable young population. JUUL Labs and other
Defendants developed and implemented a marketing scheme to mislead
users into believing that JUUL products contained less nicotine
than they actually do and were healthy and safe. The Defendants
enticed newcomers to nicotine with kid-friendly flavors without
ensuring the flavoring additives were safe for inhalation. The
Defendants targeted the youth market by placing vaporized campaigns
on youth-oriented websites and media and using influencers and
affiliates to amplify their message to a teenage audience. The
Defendants have successfully caused more young people to start
using e-cigarettes, creating a youth e-cigarette epidemic and
public health crisis, the suit says.
Hillsboro School District is a unified school district with its
offices located at 777 School Avenue P.O. Box 526 in Hillsboro,
Wisconsin.
JUUL Labs, Inc., formerly known as Pax Labs, Inc., is an American
electronic cigarette company, with its principal place of business
in San Francisco, California.
Altria Group, Inc. is a producer of tobacco products, with its
principal place of business in Richmond, Virginia.
Philip Morris USA, Inc. is a wholly-owned subsidiary of Altria
Group, Inc., with its principal place of business in Richmond,
Virginia.
Altria Client Services LLC is a tobacco company, with its principal
place of business in Richmond, Virginia.
Altria Group Distribution Company is a tobacco company, with its
principal place of business in Richmond, Virginia. [BN]
The Plaintiff is represented by:
James Frantz, Esq.
William B. Shinoff, Esq.
FRANTZ LAW GROUP, APLC
402 W. Broadway, Ste. 860
San Diego, CA 92101
Telephone: (619) 233-5945
Facsimile: (619) 525-7672
E-mail: jpf@frantzlawgroup.com
wshinoff@frantzlawgroup.com
JUUL LABS: Markets E-Cigarette to Youth, Chesaning Union Suit Says
------------------------------------------------------------------
CHESANING UNION SCHOOLS, on behalf of itself and all others
similarly situated, Plaintiff v. JUUL LABS, INC. F/K/A PAX LABS,
INC.; JAMES MONSEES; ADAM BOWEN; NICHOLAS PRITZKER; HOYOUNG HUH;
RIAZ VALANI; ALTRIA GROUP, INC.; ALTRIA CLIENT SERVICES LLC; ALTRIA
GROUP DISTRIBUTION COMPANY; and PHILIP MORRIS USA, INC.,
Defendants, Case No. 3:21-cv-07949 (N.D. Cal., October 11, 2021) is
a class action against the Defendants for negligence, gross
negligence, and violations of Public Nuisance Law and the Racketeer
Influenced and Corrupt Organizations Act.
According to the complaint, the Defendants used three tactics to
maintain market dominance in the cigarette industry: (1) product
design to maximize addiction, (2) mass deception, and (3) targeting
of youth. Defendants JUUL Labs and Adam Bowen designed an
e-cigarette device allegedly intended to create and sustain
addiction, but without the stigma associated with cigarettes and
promoted them to vulnerable young population. JUUL Labs and other
Defendants developed and implemented a marketing scheme to mislead
users into believing that JUUL products contained less nicotine
than they actually do and were healthy and safe. The Defendants
enticed newcomers to nicotine with kid-friendly flavors without
ensuring the flavoring additives were safe for inhalation. The
Defendants targeted the youth market by placing vaporized campaigns
on youth-oriented websites and media and using influencers and
affiliates to amplify their message to a teenage audience. The
Defendants have successfully caused more young people to start
using e-cigarettes, creating a youth e-cigarette epidemic and
public health crisis, the suit asserts.
Chesaning Union Schools is a unified school district with its
offices located at 850 North 4th Street in Chesaning, Michigan.
JUUL Labs, Inc., formerly known as Pax Labs, Inc., is an American
electronic cigarette company, with its principal place of business
in San Francisco, California.
Altria Group, Inc. is a producer of tobacco products, with its
principal place of business in Richmond, Virginia.
Philip Morris USA, Inc. is a wholly-owned subsidiary of Altria
Group, Inc., with its principal place of business in Richmond,
Virginia.
Altria Client Services LLC is a tobacco company, with its principal
place of business in Richmond, Virginia.
Altria Group Distribution Company is a tobacco company, with its
principal place of business in Richmond, Virginia. [BN]
The Plaintiff is represented by:
James Frantz, Esq.
William B. Shinoff, Esq.
FRANTZ LAW GROUP, APLC
402 W. Broadway, Ste. 860
San Diego, CA 92101
Telephone: (619) 233-5945
Facsimile: (619) 525-7672
E-mail: jpf@frantzlawgroup.com
wshinoff@frantzlawgroup.com
KELLY SERVICES: Ill. Court Denies Bids to Dismiss Poonja TCPA Suit
------------------------------------------------------------------
In the case, ASIF J. POONJA, individually and on behalf of a class
of similarly situated individuals, Plaintiff v. KELLY SERVICES,
INC., a Delaware corporation, Defendant, Case No. 20-cv-4388 (N.D.
Ill.), Judge Robert M. Dow, Jr., of the U.S. District Court for the
Northern District of Illinois, Eastern Division, denied the
Defendant's motions to dismiss.
Background
The impetus for the Plaintiff's proposed class action complaint is
a single text message that he unexpectedly received on Nov. 21,
2019. That text message, sent from the phone number 1-833-650-4026
at 11:38 a.m. stated as follows: "Immediate openings for warehouse
associate/machine operator roles in Lake Zurich, IL. 1st shift &
2nd shifts available starting pay rate at $15/hr. and up. If
interested, please call us at 847-995-9350, email us at
2423@kellyservices.com, or text back." At the bottom of the text
was an additional message: "(Reply STOP to stop anytime)".
The Plaintiff alleges that the Defendant advertises various job
listings like the one quoted for thousands of businesses nationwide
in an effort to assist those businesses to fill open positions. He
infers from (a) the use of a dedicated 1-833 toll free number, (b)
the generic nature of the text message, and (c) the automated
"STOP" and "text back" functionality that the text message he
received was sent using an ATDS in violation of the TCPA.
On June 22, 2020, the Plaintiff commenced the action in the Circuit
Court of Cook County. The Defendant removed the case to federal
court and has filed two separate motions to dismiss the Plaintiff's
complaint. In its first motion, the Defendant raises traditional
arguments for dismissal under Federal Rule of Civil Procedure
12(b)(6).
Specifically, the Defendant contends that the Plaintiff has not
satisfied the basic requirements of notice pleading under Federal
Rule of Civil Procedure 8, including that the Plaintiff has not
adequately pled that the text message in question was generated by
an ATDS. The Defendant also challenges the Plaintiff's demand for
treble damages based on alleged willful conduct and asks the Court
to strike Plaintiff's class allegations as well.
In its second motion, the Defendant submits that the Court lacks
subject matter jurisdiction on the basis of the Supreme Court's
decision in Barr v. American Association of Political Consultants,
140 S.Ct. 2335 (2020), which invalidated the so-called "government
debt exception" to the TCPA on First Amendment grounds but found
the offending provision, added by Congress in 2015, to be severable
from the statute as a whole. According to the Defendant, the
presence of the government debt exception between 2015 and 2020
rendered the entire autodialer restriction in the TCPA
unconstitutional and thus unenforceable today.
Discussion
A. Defendant's First Motion to Dismiss
The action arises under the Telephone Consumer Protection Act of
1991 ("TCPA"), which "proscribes abusive telemarketing practices
by, among other things, imposing restrictions on making calls with
an 'automated telephone dialing system." Breaking down the
statute's prohibition, to state a cause of action under the TCPA, a
plaintiff must allege (i) a call was made or a text was sent; (ii)
the caller/sender used an ATDS; (iii) the number called was
assigned to a cellular telephone service; and (iv) the caller did
not have the recipient's prior express consent.
Earlier this year, the Supreme Court resolved a circuit split
"regarding whether an autodialer must have the capacity to generate
random or sequential phone numbers" in Facebook, Inc. v. Duguid,
141 S.Ct. 1163, 1168-69 (2021). The Court agreed with the Seventh
Circuit in Gadelhak v. AT&T Servs., Inc., 950 F.3d 458, 468 (7th
Cir. 2020) in holding that to qualify as an "automatic telephone
dialing system" ("ATDS"), "a device must have the capacity either
to store a telephone number using a random or sequential generator
or to produce a telephone number using a random or sequential
number generator."
1. The Sufficiency of the Complaint's Allegations
The allegations of the complaint -- including a screen shot of the
text in question -- plainly show that a text was sent to what the
Plaintiff alleges is his cell phone number. The screen shot reveals
the date, time, and number from which the text was sent. Plaintiff
also alleges that he did not give his prior express consent to
receiving texts or calls from the Defendant. The only pleading
question requiring detailed examination is whether the Plaintiff
has adequately alleged that the Defendant used an ATDS to send the
text.
The Defendant claims that the Plaintiff's allegations regarding an
ATDS "are barebones and amount to rank speculation." Judge Dow
holds that consistent with other cases, thePlaintiff's allegations
of a generic message, sent by a 1-833 number, with "STOP" and "text
back" functionality suffice to survive a motion to dismiss.
2. Motion to Strike Claim for Treble Damages
The Defendant also asks the Court to strike the Plaintiff's claim
for treble damages based on a willful violation. It reads the
Plaintiff's complaint as alleging inadvertence, but not intentional
conduct.
Judge Dow holds that accepting that allegation as true and
construing it in the light most favorable to the Plaintiff, he
cannot say that it excludes the possibility of willful conduct.
Perhaps discovery will reveal, as the Plaintiff suspects, that the
Defendant sent the text message in question even though it knew
that it lacked the Plaintiff's prior express written consent and
that it did not have in place any procedures to ascertain whether
it had such consent. Perhaps discovery will show that the text was
sent inadvertently. Because either possibility remains in play,
striking the claim for treble damages would be premature.
3. Motion to Strike Class Allegations
Similarly, the Defendant's request that the Court strikes the
Plaintiff's class allegations is premature, Judge Dow finds. To be
sure, the Judge says, the Plaintiff will need to connect an awful
lot of dots to sustain a nationwide class action based on the
single text message that he received. Given the potential for
expensive discovery in class action litigation and the command of
Rule 26(b)(1) that courts allow discovery that is "proportional to
the needs of the case," Judge Dow will keep moving the case forward
on an issue-by-issue basis until the Plaintiff is able to
establish, at a minimum, that the Defendant used an ATDS to send
the offending text message. Nevertheless, there is no need to
foreclose the possibility that the case is appropriate for class
treatment if discovery bears out the Plaintiff's adequately pleaded
theory of the origins of that text.
B. Defendant's Second Motion to Dismiss
In the aftermath of the Supreme Court's decision in Barr v.
American Association of Political Consultants, 140 S.Ct. 2335
(2020), the Defendants filed a second motion to dismiss on the
ground that the Court lacks subject matter jurisdiction. Relying on
three district court rulings, they assert that the Barr decision
obliterated any causes of action based on the TCPA's autodialer
restrictions between the enactment of the provision invalidated by
the High Court and the date of its decision striking down that
provision.
At its core, Judge Dow holds that the issue presented by the
Defendant's second motion is a math problem. How many Justices
agree with the observation made in Justice Kavanaugh's plurality
opinion that the Court's decision in Barr "does not negate the
liability of parties who made robocalls" between 2015 and the date
of the Court's decision? The Sixth Circuit and the overwhelming
weight of district court authority have concluded that the
combination of the three-Justice plurality and the four additional
Justices who agreed that the 2015 amendment was severable from the
rest of the TCPA leaves intact the autodialer restriction on which
the Plaintiff relies in his complaint.
Judge Dow stresses that the Defendant's argument, relying on the
views of two Justices to suggest that the Court should disregard
the clear result that follows from the views of seven Justices,
runs contrary to the Seventh Circuit's observation that "an
inferior court is not entitled to say that because the one is more
persuasive than the eight, it will follow the one."
Conclusion
For the reasons stated, Judge Dow does not find any of the
Defendant's arguments persuasive. Some are incorrect; others
premature; but none justifies terminating any aspect of the lawsuit
at this time. With that said, a single text is a thin basis upon
which to launch full-blown discovery on a putative nationwide class
action. Accordingly, Judge Dow is inclined to stage discovery so
that the parties can first discern whether (a) the Defendant did in
fact use an ATDS to send the text message in question and (b) how
far and wide that message was sent -- i.e., locally in the area
where the job advertised would be performed, or across the nation,
as the Plaintiff suspects.
Judge Dow denied both the Defendant's motions to dismiss. The
counsel is directed to confer and to file a joint status report
that includes a proposed case management plan consistent with the
Opinion and the Court's guidance on the staging of discovery.
A full-text copy of the Court's Sept. 29, 2021 Memorandum Opinion &
Order is available at https://tinyurl.com/4ahf98vc from
Leagle.com.
KONINKLIJKE PHILIPS: George Files Suit in W.D. Pennsylvania
-----------------------------------------------------------
A class action lawsuit has been filed against Koninklijke Philips
N.V., et al. The case is styled as Anthony George, individually and
on behalf of all others similarly situated v. Koninklijke Philips
N.V., Philips North America LLC, Philips RS North America LLC, Case
No. 2:21-cv-01359-MRH (W.D. Pa., Oct. 12, 2021).
The nature of suit is stated as Personal Injury: Health
Care/Pharmaceutical Personal Injury Product.
Koninklijke Philips N.V. -- https://www.philips.com/global -- is a
Dutch multinational conglomerate corporation that was founded in
Eindhoven.[BN]
The Plaintiff is represented by:
Shanon J. Carson, Esq.
BERGER MONTAGUYE
1818 Market Street, Suite 3600
Philadelphia, PA 19103
Phone: (215) 592-1500
Fax: (215) 592-4663
Email: alevin@lfsblaw.com
KONINKLIJKE PHILIPS: Scarella Sues Over Defective Machines
----------------------------------------------------------
Jennifer Scarella, on behalf of herself and all others similarly
situated v. KONINKLIJKE PHILIPS N.V., PHILIPS NORTH AMERICA LLC,
and PHILIPS RS NORTH AMERICA LLC, Case No. 2:21-cv-01364-RJC (W.D.
Pa., Oct. 12, 2021), is brought by those who purchased defective
Recalled Breathing Machines to obtain relief for their injuries.
The Defendants manufacture and sell a variety of products that are
intended to help people breathe. These include Continuous Positive
Airway Pressure ("CPAP") and Bilevel Positive Airway Pressure
("BiPAP") machines, that are commonly used to treat sleep apnea,
and ventilators that treat respiratory failure. In general, each of
these devices express air into patients' airways. CPAP and BiPAP
machines are intended for daily use, and ventilators are used
continuously while needed. Without these devices, some patients may
experience severe symptoms, including heart attack, stroke, and
death by asphyxiation.
On June 14, 2021, Philips announced a recall of many of its
CPAP/BiPAP machines and its ventilators ("Recalled Breathing
Machines"). Specifically, the Recalled Breathing Machines contain
polyester-based polyurethane ("PE-PUR") foam for sound abatement.
Philips announced that this foam may break down and be inhaled or
ingested. Further, the PE-PUR foam may emit volatile organic
compounds ("VOCs") that may be inhaled, ingested, adversely affect
organs, and are carcinogenic. Philips announced these hazards could
result in "serious injury which can be life-threatening or cause
permanent impairment." Philips knew about these very substantial
and material risks long before the recall.
Patients who use the Recalled Breathing Machines have complained
about black particles in their machines for several years. Philips,
however, did not warn the public or its customers about these
hazards until late April 2021 and did not recall the Recalled
Breathing Machines until June 14, Patients use the Recalled
Breathing Machines every day but, absent this litigation, Philips
had no plan to replace any of the affected devices now or in the
future. Philips has no concrete timeline for replacing or repairing
any of the Recalled Breathing Machines. In fact, Philips timed its
recall of the Recalled Breathing Machines to coincide with the
launch of its next generation of products, which purportedly do not
suffer from the same PE- PUR foam issues. Thus, the only safe
option that Philips offers to its customers—many of whom need and
rely on the Recalled Breathing Machines—is to purchase Philips's
newer model, thus profiting Philips further, says the complaint.
The Plaintiff purchased the Recalled Breathing Machines.
Philips manufactures and sells CPAP machines, BiPAP machines, and
ventilators, among other products.[BN]
The Plaintiff is represented by:
Christian Bagin, Esq.
WIENAND AND BAGIN
100 1st Avenue, Suite 1010
Pittsburgh, PA 15222
Phone: 412-281-1110
Fax: 412-281-8481
Email: christian@wienandandbagin.com
- and -
William M. Audet, Esq.
Michael McShane, Esq.
Ling (David) Y. Kuang, Esq.
Kurt D. Kessler, Esq.
AUDET &PARTNERS, LLP
711 Van Ness Ave., Suite 500
San Francisco, CA 94102
Email: waudet@audetlaw.com
mmcshane@audetlaw.com
lkuang@audetlaw.com
kkessler@audetlaw.com
KRAFT HEINZ: Court Enters Preliminary Pretrial Conference Order
---------------------------------------------------------------
In the class action lawsuit captioned as CHRISTOPHER LEMKE,
individually and on behalf of all others similarly situated, v.
KRAFT HEINZ FOODS COMPANY, Case No. 3:21-cv-00278-wmc (W.D. Wisc.),
the Hon. Judge Stephen L. Crocker entered a preliminary pretrial
conference order as follows:
1. Amendments to the pleadings: By leave of court
2. Motions & Briefs To Certify Classes: July 11, 2022
This is the deadline for plaintiff to seek certification
of a Rule 23 class or for defendant to seek
decertification of a conditional FLSA class.
Responses: August 8, 2022
Replies: August 22, 2022
3. Disclosure of liability experts:
Plaintiff: November 7, 2022
Defendant: December 19, 2022
4. Deadline for filing dispositive motions: January 20, 2023
5. Disclosure of damages experts:
Plaintiff: April 10, 2023
Defendant: May 12, 2023
6. Settlement Letters: June 9, 2023
Not later than this date, each party must submit a
confidential settlement letter to the clerk of court at
clerkofcourt@wiwd.uscourts.gov. The letter should set
forth the terms and conditions upon which that party would
settle this case.
7. Discovery Cutoff: June 9, 2023
Discovery is stayed until January 3, 2022, or until the
court decides the pending motion to dismiss, whichever
comes first.
8. Rule 26(a)(3) Disclosures and all motions in limine: June
16, 2023
Objections: June 30, 2023
9. Final Pretrial Conference: July 11, 2023 at 4:00 p.m.
10. Trial: July 24, 2023 at 9:00 a.m.
11. Reporting Obligation of Corporate Parties
All parties that are required to file a disclosure of
corporate affiliations and financial interest form have a
continuing obligation throughout this case promptly to
amend that form to reflect any changes in the answers.
Kraft Heinz operates as a food and beverage company. The Company
offers sauces, meals, soups, snacks, and infant nutrition
products.
A copy of the Court's order dated Oct. 5, 2021 is available from
PacerMonitor.com at https://bit.ly/3oXhgJt at no extra charge.[CC]
KROGER CO: White Sues Over Sun Care Products' Reef Friendly Label
-----------------------------------------------------------------
PHILLIP WHITE, individually and on behalf of all others similarly
situated, Plaintiff v. THE KROGER CO. and FRUIT OF THE EARTH, INC.,
Defendants, Case No. 3:21-cv-08004 (N.D. Cal., October 12, 2021) is
a class action against the Defendants for breach of warranty,
unjust enrichment, and violations of California's Unfair
Competition Law, False Advertising Law, and Consumers Legal
Remedies Act.
According to the complaint, the Defendants are engaged in false,
deceptive, and misleading advertising, labeling, and marketing of
its Kroger brand sun care products. The Defendants labels the
products as "REEF FRIENDLY" deliberately leading reasonable
consumers, including the Plaintiff, to believe that the products
only contain ingredients that are reef-safe and otherwise cannot
harm reefs. However, contrary to this labeling, the products
actually contain harmful ingredients, including avobenzone,
homoslate, octisalate, and/or octocrylene, which are chemical
ingredients that are not safe for reefs because they can harm
and/or kill reefs, including the coral reefs and the marine life
that inhabits or depends on them. The Plaintiff and Class members
would not have purchased the products had they known the truth,
says the suit.
The Kroger Co. is an American retail company, headquartered in
Cincinnati, Ohio.
Fruit of the Earth, Inc. is a manufacturer of skin care products
based in Texas. [BN]
The Plaintiff is represented by:
Ryan J. Clarkson, Esq.
Shireen M. Clarkson, Esq.
Katherine A. Bruce, Esq.
Kelsey J. Elling, Esq.
CLARKSON LAW FIRM, P.C.
22525 Pacific Coast Highway
Malibu, CA 90265
Telephone: (213) 788-4050
Facsimile: (213) 788-4070
E-mail: rclarkson@clarksonlawfirm.com
sclarkson@clarksonlawfirm.com
kbruce@clarksonlawfirm.com
kelling@clarksonlawfirm.com
KRS GLOBAL: Court Enters Jury Trial & Pretrial Scheduling Order
---------------------------------------------------------------
In the class action lawsuit captioned as SURESH KUMAR v. KRS GLOBAL
BIOTECHNOLOGY, INC., and CLEVELAND DIABETES CARE, INC., Case No.
9:21-cv-80151-WM (S.D. Fla.), the Hon. Judge William Matthewman
entered an amended order setting jury trial and pretrial scheduling
order as follows:
-- Trial Date and Location
This case is hereby set for a 5-day jury trial before
United States Magistrate Judge William Matthewman,
commencing at 9:00 a.m. on Monday, April 25, 2022 1 , in
the West Palm Beach Division of this Court. The parties
should be prepared to proceed to trial on Monday, April
25, 2022 at 9:00 a.m.
-- Motion Practice
Every motion filed in this case must comply with Local
Rule 7.1(a)(3) if applicable (pre- filing conference and
certification) and be accompanied by a proposed order
granting the motion, except motions to dismiss and
motions for summary judgment. Proposed orders shall be e-
mailed in Word format to chambers at
matthewman@flsd.uscourts.gov.
-- Pretrial Schedule
Pretrial discovery will be conducted in accordance with
Southern District of Florida Local Rules 16.1 and 26.1
and the Federal Rules of Civil Procedure.
-- Settlement
If a case is settled, counsel are directed to inform the
Court promptly at (561) 803-3440 and to submit an
appropriate Stipulation for Order of Dismissal, pursuant
to Fed. R. Civ. P. 41(a)(1). Such an Order must be filed
within ten (10) days of notification to the Court, or
prior to the Calendar Call, whichever occurs first. Cases
are not removed from the trial calendar unless a
stipulation for dismissal is filed with the Court.
KRS provides pharmacy services.
A copy of the Court's order dated Oct. 6, 2021 is available from
PacerMonitor.com at https://bit.ly/3FNUMQV at no extra charge.[CC]
LAKEVIEW LOAN: Court Tosses Brown Bid for Class Certification
-------------------------------------------------------------
In the class action lawsuit captioned as JAMALLA BROWN,
individually and on behalf of others similarly situated, v.
LAKEVIEW LOAN SERVICING, LLC, and LOANCARE, LLC, Case No.
3:20-cv-00280-FDW-DSC (W.D.N.C.), the Hon. Judge Frank D. Whitney
entered an order:
1. denying Plaintiff's motion for class certification;
2. denying in part the Defendant's motion for summary
judgment, on Plaintiff's claim against both Defendants
under the North Carolina Mortgage Debt Collection and
Servicing Act and granting in part Defendant's motion for
summary judgment, on Plaintiff's remaining claims;
3. directing to proceed with the current trial setting of
November 1, 2021;
4. setting parties' joint pretrial submissions due by October
22, 2021.
Lakeview is a mortgage loan servicer. LoanCare, a national
subservicer, provides loan servicing solutions.
A copy of the Court's order dated Oct. 5, 2021 is available from
PacerMonitor.com at https://bit.ly/3mPG976 at no extra charge.[CC]
LAW ENFORCEMENT: Court Dismisses Vandermark Class Suit
------------------------------------------------------
In the class action lawsuit captioned as MARSHALL VANDERMARK, et
al., v, LAW ENFORCEMENT EMPLOYEES BENEVOLENT ASSOCIATION, (LEEBA),
et al., Case No. 1:15-cv-00483-VSB (S.D.N.Y.), the Hon. Judge
Vernon S. Broderick entered an order:
1. granting Defendants' motion for summary judgment;
2. dismissing Plaintiffs' case; and
3. directing the Clerk of Court to terminate docket entry 79,
and to close this case.
Judge Vernon said, "I find the Seventh Circuit's analysis of
Section 201(c), the discretionary nature of Section 201(c), and the
Second Circuit's interpretation of the similar Fair labor Stanards
Act (FLSA) fees provision to be persuasive. Here, I have not
awarded any judgment in favor of Plaintiffs, and even more broadly,
my decision is unfavorable to Plaintiffs. The Plaintiffs request
for attorney's fees therefore cannot rescue their claim. In short,
because I "have no license to retain jurisdiction over cases in
which one of the parties plainly lacks a continuing interest,"
Plaintiffs' Title II claim must be dismissed."
The Plaintiffs Vandermark, Mateer, and Terminelle bring this action
against LEEBA and Kenneth Wynder, former president of LEEBA,
asserting a violation of Title II of the Labor-Management Reporting
and Disclosure Act (LMRDA) which concerns the duty of labor
organizations to file certain reports with the Secretary of Labor,
provide reports to union members, and allows union members to sue
to examine books, records, and accounts to verify these reports.
The Plaintiffs also bring claims pursuant to New York Labor Law and
seek attorney's fees.
LEEBA is a labor organization that is composed of both public and
private law enforcement personnel. LEEBA represents approximately
190 Environmental Police Officers (EPOs), and was certified by the
City of New York on October 20, 2005 to represent EPOs in
collective bargaining. The Plaintiffs are current or former EPOs.
Vandermark retired from the New York
City Department of Environmental Protection in 2015.
A copy of the Court's order dated Oct. 6, 2021 is available from
PacerMonitor.com at https://bit.ly/3p50V5y at no extra charge.[CC]
LEWIS BROTHERS: Class Cert Bid Filing Extended to April 4, 2022
---------------------------------------------------------------
In the class action lawsuit captioned as ANTONIO CALDWELL v. LEWIS
BROTHERS BAKERIES, INC., et al., Case No. 3:20-cv-01081 (M.D.
Tenn.), the Hon. Magistrate Judge Judge Alistair E. Newbern entered
an order:
1. granting joint motion to extend the deadline to file a
motion for class certification:
-- The deadline is extended to April 4, 2022; and
-- The Magistrate Judge cautioned counsel that this
further extension of the class certification deadline
will likely result in an accelerated calendar for
merits discovery, expert discovery, and the filing of
dispositive motions; and
2. setting of further case management deadlines on February
8, 2022, at 10:00 a.m.
Lewis Brothers provides bakery products. The company manufactures
fresh and frozen bread and bread-type rolls, cakes, and pies.
A copy of the Court's order dated Oct. 6, 2021 is available from
PacerMonitor.com at https://bit.ly/3aHNjEV at no extra charge.[CC]
LIGHTSPEED COMMERCE: Pomerantz Law Discloses Class Action
---------------------------------------------------------
Pomerantz LLP is investigating claims on behalf of investors of
Lightspeed Commerce Inc. ("Lightspeed" or the "Company") (NYSE:
LSPD). Such investors are advised to contact Robert S. Willoughby
at newaction@pomlaw.com or 888-476-6529, ext. 7980.
On September 29, 2021, market analyst Spruce Point Capital
Management ("Spruce Point") published a report regarding
Lightspeed. Spruce Point also published a press release summarizing
its findings. The summary stated, among other things, that
"[e]vidence shows that Lightspeed massively inflated its business
pre-IPO, overstating its customer count by 85% and gross
transaction volume ('GTV') by 10% - a payment volume metric that a
former employee described as 'smoke and mirrors'"; that there was
"[e]vidence of declining organic growth and business deterioration
through Lightspeed's IPO, despite management's claims that Average
Revenue Per User ('ARPU') is increasing"; that the Company's
"[r]ecent acquisition spree has come at escalating costs with no
clear path to profitability, while management pursues aggressive
revenue reporting practices"; and that there were "[w]eak
governance standards and worrisome auditor oversight by PwC under a
concerning CFO, who was tied to a prior technology roll-up
scandal."
On this news, Lightspeed's share price fell $13.73 per share, or
12.2%, to close at $98.77 per share on September 29, 2021.
Pomerantz LLP, with offices in New York, Chicago, Los Angeles,
Paris, and Tel Aviv, 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, Pomerantz pioneered the field of securities class
actions. Today, more than 85 years later, Pomerantz 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.pomlaw.com. [GN]
LOUISIANA: Plaisance Bid to Certify Class Tossed without Prejudice
------------------------------------------------------------------
In the class action lawsuit captioned as Plaisance, et al., v.
State of Louisiana et al., Case No. 3:21-cv-00121 (M.D. La.), the
Hon. Judge John W. Degravelles entered an order denying without
prejudice motion to certify class.
The suit alleges violation of the Civil Rights Act.
Louisiana is a southeastern U.S. state on the Gulf of Mexico. Its
history as a melting pot of French, African, American and
French-Canadian cultures is reflected in its Creole and Cajun
cultures. The largest city, New Orleans, is known for its
colonial-era French Quarter, raucous Mardi Gras festival, jazz
music, Renaissance-style St. Louis Cathedral and wartime exhibits
at the huge National WWII Museum.[CC]
LUCKIN COFFEE: AP7 Hails U.S. Class Action Win As Lead Plaintiff
----------------------------------------------------------------
Rachel Fixsen at ipe.com reports that the head of Sweden's AP7 has
held up its win in a class action lawsuit last month against
US-listed Chinese firm Luckin Coffee as an example of its strategy
of pursuing companies in the courts for detrimental errors they
make.
As lead plaintiff in a US class action case, the SEK849bn
(EUR83.6bn) Swedish national pension fund reached a $187.5bn
(EUR162.2m) settlement with coffeehouse chain Luckin Coffee, whose
stock price was practically wiped out a year and a half ago in the
US after it admitted fabricating turnover figures prior to its
listing.
Richard Gröttheim, AP7's chief executive officer, said: "This
settlement with Luckin Coffee is a clear example of how AP7 uses
legal proceedings to hold companies we invest in liable when they
make mistakes that disadvantage shareholders.
"Not all capital owners pursue legal proceedings against companies,
but when we win a case like this, it benefits all shareholders," he
said in a commentary on the case published on AP7's website.
IPE emailed AP7 to ask how much of the settlement it would receive,
but received no immediate response.
Luckin Coffee - which is a rival to Starbucks in China - conducted
an initial public offering of American Depository Shares (ADS) on
17 May 2019 and a secondary public offering on 10 January 2020,
according to Kessler Topaz Meltzer & Check, the law firm acting for
AP7 in the US.
Months later, the law firm said, the coffee company admitted
inventing nearly $300m in sales between the second and fourth
quarters of 2019.
The Chinese firm made an announcement before the market opened on 2
April 2020 that, contrary to its recent denial of certain
allegations, an internal investigation had found misconduct,
including fabrication of certain transactions, according to a
document filed on 24 September 2020 in the US District Court for
the Southern District of New York.
That day, Luckin Coffee's ADSs collapsed from the previous day's
closing price of $26.20 to end trading at $6.40, and subsequently
dropped to $1.38 on 26 June, when the firm announced its ADSs would
be permanently delisted from the NASDAQ exchange, according to the
filing.
Kessler Topaz said that in March 2021, the court had provisionally
certified for settlement purposes a class of investors consisting
of all purchasers of the company's ADSs between 17 May 2019 and 15
July 2020.
Part of the legal process AP7 went through to get compensation from
the coffee firm involved pushing to be allowed to be a lead
plaintiff in the case - a role it took alongside co-lead plaintiff,
Louisiana Sheriffs' Pension & Relief Fund.
Kessler Topaz said in a sponsored article in Institutional Investor
in September 2020 that the case had "added to the growing body of
case law recognizing that non-U.S. asset managers, such as AP7, are
appropriate lead plaintiff representatives in securities class
actions."
A year ago, AP7 welcomed the settlement in a sexual harassment case
against Google parent Alphabet, in which it was also lead
plaintiff, which saw the California tech giant agree to take a
number of measures to improve diversity and inclusion. [GN]
MAGNOLIA FLOORING: Ross Settlement Class Gets Final Certification
-----------------------------------------------------------------
In the class action lawsuit captioned as VINCENT ROSS, JUSTIN
JACKSON, and DEVANTE FRANKLIN, Individually and on Behalf of All
Others Similarly Situated, v. MAGNOLIA FLOORING MILL, LLC, Case No.
1:18-cv-01075-SOH (W.D. Ark.), the Hon. Judge Susan O. Hickey
entered an order that:
1. Pursuant to Rule 23 of the Federal Rules of Civil
Procedure, final certification of the Class is confirmed
for the purpose of the Settlement, in accordance with the
Settlement Agreement.
2. No Class Member raised objections to the Notice of
Settlement. All potential members of the Settlement Class
are adjudged to be members of the Settlement Class and are
bound by this Final Order and Judgment and by the
Settlement Agreement.
3. The parties' Joint Motion for Final Approval of Class
Action Settlement is hereby granted and all provisions and
terms of the Settlement Agreement are hereby finally
approved in all respects. The Parties to the Settlement
Agreement are directed to consummate the terms of the
Settlement Agreement in accordance with its terms, as may
be modified by subsequent orders of this Court.
4. This Final Order and Judgment shall be immediately entered
as to all claims in the suit between the Representative
Plaintiffs and Class Members and Defendant, and Final
Judgment is entered approving and adopting all terms and
conditions of the Settlement Agreement, fully and finally
terminating all claims of the Representative Plaintiffs
and the Class in this suit against Defendant, on the
merits and with prejudice without leave to amend.
5. Pursuant to Rule 23(a) and (g) of the Federal Rules of
Civil Procedure, Plaintiffs Vincent Ross, Justin Jackson,
and Devante Franklin are appointed as the Representative
Plaintiffs for this Class, and the following counsel are
appointed as counsel for the Class.
6. Pursuant to Rule 23(h), the Court awards Class Counsel
$15,352.17 in attorney's fees and $490 in costs. In
addition, the Court awards the Representative Plaintiffs a
service award of $300.00. The Court hereby finds that
these amounts are fair and reasonable. Defendant shall pay
such fees to Class Counsel and the service award to the
Representative Plaintiffs pursuant to the terms of the
Settlement Agreement. Defendant shall not be responsible
for and shall not be liable with respect to the allocation
among Class Counsel or any other person who may assert a
claim thereto, of attorneys' fees and expenses awarded by
the Court.
The Magnolia Flooring Mill manufactures solid wood strip flooring.
A copy of the Court's order dated Oct. 6, 2021 is available from
PacerMonitor.com at https://bit.ly/3BNG0Y7 at no extra charge.[CC]
MATCH GROUP: Faces Age Discrimination Class Action in Canada
------------------------------------------------------------
Dominic Whitlock, writing for Global Dating Insights, reports that
A law firm in Canada has filed a class action lawsuit against Match
Group and Tinder, accusing the latter of age-based discrimination.
The lawsuit is alleging that Tinder was deliberately charging older
users more for premium subscriptions, as well as employing
potentially manipulative tactics to convince members to upgrade.
Canadian users aged 29 and under were charged $19.99 for one month
of Tinder Gold, while those over 30 were charged twice as much.
The dating app faced similar action recently in California.
However, its proposal to settle in August was rejected by the US
Court of Appeals for the Ninth Circuit because it was deemed to be
undervalued.
This latest lawsuit, filed by Slater Vecchio LLP, is also claiming
that Tinder is hiding profiles from free users and sending them
match notifications without actually showing them the person
they've matched with. It's believed this is a deliberate attempt to
frustrate users into paying for a membership.
Another Match Group subsidiary was accused of similar offences and
undertaking fraudulent business practices by the Federal Trade
Commission (FTC) in 2019. It was claimed that Match.com
deliberately allowed scam accounts to remain active, while also
promoting them to unsuspecting users.
The FTC claimed that almost half a million members were conned into
registering for premium memberships because they thought the scam
connections were genuine. [GN]
MATTEL INC: Court Certifies Class in Securities Suit
----------------------------------------------------
In the class action lawsuit RE MATTEL, INC. SECURITIES LITIGATION,
Case No. e 2:19-cv-10860-MCS-PLA (C.D. Cal.), the Hon. Judge Mark
C. Scarsi entered an order:
1. certifying a class of:
"All persons and entities who purchased or otherwise
acquired the common stock of Mattel, Inc. from August 2,
2017 to August 8, 2019, inclusive, and who were damaged
thereby;"
2. certifying a PricewaterhouseCoopers (PwC) subclass defined
as:
"All persons and entities who purchased or otherwise
acquired the common stock of Mattel, Inc. from February
27, 2018 to August 8, 2019, inclusive, and who were
damaged thereby;"
Excluded from the Class and the PwC Subclass are
Defendants Mattel, PwC, and Joshua Abrahams; Mattel's and
PwC's affiliates and subsidiaries; the officers and
directors of Mattel and PwC and their subsidiaries and
affiliates at all relevant times; members of the immediate
family of any excluded person; heirs, successors, and
assigns of any excluded person or entity; and any entity
in which any excluded person has or had a controlling
interest;
2. appointing Joseph J. Euteneuer, Margaret H. Georgiadis,
Kevin as Lead Plaintiffs and New Orleans and DeKalb as
class representatives; and
3. appointing Bernstein as Class Counsel.
This securities fraud action stems from a "cover-up of known,
material misstatements in Mattel's financial results and known,
severe weaknesses in its internal controls" as recounted in large
part by Mattel's former tax director, Brett Whitaker.
The Plaintiffs bring claims under Sections 10(b) and 20(a) of the
Exchange Act against Mattel, its top executives, its registered
accounting firm (PwC), and PwC's lead audit partner (Abrahams).
Mattel is an American multinational toy manufacturing company
founded in 1945 with headquarters in El Segundo, California. The
products and brands it produces include Barbie, Hot Wheels,
Fisher-Price, American Girl, UNO, Mega, Thomas & Friends, Polly
Pocket, Masters of the Universe, and Monster High.
A copy of the Court's order dated Oct. 6, 2021 is available from
PacerMonitor.com at https://bit.ly/3vlCC4s at no extra charge.[CC]
MCNEIL NUTRITIONALS: DiCroce Files Suit in D. Massachusetts
-----------------------------------------------------------
A class action lawsuit has been filed against McNeil Nutritionals,
LLC, et al. The case is styled as Kristin DiCroce, individually and
on behalf of all persons similarly situated v. McNeil Nutritionals,
LLC, Johnson & Johnson, Consumer Inc., Case No. 1:21-cv-11660-IT
(D. Mass., Oct. 12, 2021).
The nature of suit is stated as Contract Product Liability.
McNeil Nutritionals, LLC, is a global marketer of innovative
nutritional products.[BN]
The Plaintiff is represented by:
Brendan M. Bridgeland, Esq.
ADKINS, KELSTON AND ZAVEZ, P.C.
90 Canal Street, 5th Floor
Boston, MA 02114
Phone: (617) 367-1040
Email: bbridgeland@akzlaw.com
MDL 2543: Bid for Claim Payment in GM Ignition Switch Suit Denied
-----------------------------------------------------------------
The U.S. District Court for the Southern District of New York
denies a request for immediate payment of settlement claim in the
multidistrict litigation captioned as IN RE: GENERAL MOTORS LLC
IGNITION SWITCH LITIGATION, Case No. 14-MD-2543 (JMF) (S.D.N.Y.).
The Court has received a letter from alleged class member Jimmy
Davis requesting immediate payment of his settlement claim. Co-Lead
Counsel has confirmed, in response to Mr. Davis's previous letter
that JND Legal Administration, the Class Action Settlement
Administrator appointed by the MDL Court, is unable to issue
immediate payments to class members until processing of all claims
has been completed.
Accordingly, Mr. Davis's request for an order requiring immediate
payment is denied. That said, the Co-Lead Counsel will promptly
reach out to Mr. Davis to provide more specific information
regarding when class members can expect to receive settlement
payments. The Co-Lead Counsel will serve a copy of the Order on the
class member at the address provided.
A full-text copy of the Court's Order dated Sept. 30, 2021, is
available at https://tinyurl.com/4xh7w4hx from Leagle.com.
MEDROBOTICS INC: Court Enters Pretrial Scheduling Order in Spears
-----------------------------------------------------------------
In the class action lawsuit captioned as Spears et al v.
Medrobotics Inc., et al., Case No. 1:20-cv-10535-RGS (D. Mass.),
the Hon. Judge Richard G. Stearns entered a pretrial scheduling
order as follows:
-- initial disclosures to be exchanged no later than Nov. 2,
2021;
-- motion for conditional certification to be filed no later
than Nov. 30, 2021, with opposition by Dec. 21, 2019;
-- amendment of pleadings and joinder of parties no later
than Feb. 15, 2022;
-- fact discovery to close May 17, 2022;
-- class certification/decertification motion(s) to be filed
no later than June 14, 2022, opposition by July 12, 2022;
-- summary judgment motions to be filed 28 days after the
court's ruling on the class certification motion(s),
opposition in 21 days, reply by leave of court only; and
-- if the parties intend to utilize experts, they must inform
the court by May 17, 2022, and the court will enter an
appropriate expert discovery schedule.
Medrobotics is a privately-held, surgical products company.
A copy of the Court's order dated Oct. 5, 2021 is available from
PacerMonitor.com at https://bit.ly/3FNjz7J at no extra charge.[CC]
METALS CO: Rosen Law Discloses Probe of Potential Securities Claims
-------------------------------------------------------------------
Rosen Law Firm, a global investor rights law firm, announces an
investigation of potential securities claims on behalf of
shareholders of TMC the metals company Inc. (NASDAQ: TMC) resulting
from allegations that TMC may have issued materially misleading
business information to the investing public.
SO WHAT: If you purchased TMC securities you may be entitled to
compensation without payment of any out of pocket fees or costs
through a contingency fee arrangement. The Rosen Law firm is
preparing a class action seeking recovery of investor losses.
WHAT TO DO NEXT: To join the prospective class action, go to
http://www.rosenlegal.com/cases-register-2173.htmlor call Phillip
Kim, Esq. toll-free at 866-767-3653 or email pkim@rosenlegal.com or
cases@rosenlegal.com for information on the class action.
WHAT IS THIS ABOUT: On October 6, 2021, before markets opened,
market researcher Bonitas Research released a report alleging
multiple issues plaguing TMC. The report alleged: (1) overpayment
on licenses to potential undisclosed insiders; (2) artificially
inflated exploration expenses; (3) potentially unusable license for
which TMC paid $43 million in cash and stock; and (4) a history of
affiliating with bad actors.
On this news, TMC share prices dropped 4% before markets opened,
opening at $4.28 on October 6, 2021 and trading as low as $3.98.
WHY ROSEN LAW: We encourage investors to select qualified counsel
with a track record of success in leadership roles. Often, firms
issuing notices do not have comparable experience, resources or any
meaningful peer recognition. Be wise in selecting counsel. The
Rosen Law Firm represents investors throughout the globe,
concentrating its practice in securities class actions and
shareholder derivative litigation. Rosen Law Firm has achieved the
largest ever securities class action settlement against a Chinese
Company. Rosen Law Firm was Ranked No. 1 by ISS Securities Class
Action Services for number of securities class action settlements
in 2017. The firm has been ranked in the top 4 each year since 2013
and has recovered hundreds of millions of dollars for investors. In
2019 alone the firm secured over $438 million for investors. In
2020, founding partner Laurence Rosen was named by law360 as a
Titan of Plaintiffs' Bar. Many of the firm's attorneys have been
recognized by Lawdragon and Super Lawyers.
Attorney Advertising. Prior results do not guarantee a similar
outcome. [GN]
MICHAEL STINSON: Seeks Reconsideration of Sept. 30 Class Order
---------------------------------------------------------------
In the class action lawsuit captioned as DARLENE GIBBS, et al., v.
MICHAEL STINSON, et al., Case No. 3:18-cv-00676-MHL (E.D. Va.), the
Defendants Mike Stinson, Linda Stinson, 7HBF No. 2 Ltd., Stephen
Shaper, Haynes Investments, LLC, L. Stephen Haynes, and Sovereign
Business Solutions, LLC., ask the Court to enter an order
reconsidering the Court's September 30, 2021 Order granting
Plaintiffs' motion for class certification.
Haynes Investments is located in Dallas, Texas. This organization
primarily operates in the Investment Firm, General Brokerage
business/industry.
A copy of the Defendants' motion dated Oct. 6, 2021 is available
from PacerMonitor.com at https://bit.ly/3j4hc6L at no extra
charge.[CC]
The Attorneys for Defendants Michael Stinson, Linda Stinson, 7HBF
No. 2, Ltd., Stephen J. Shaper, L. Stephen Haynes, Haynes
Investments, LLC, and Sovereign Business Solutions, LLC, are:
Kasey L. Hoare, Esq.
John Michael Erbach, Esq.
M.F. Connell Mullins, Jr., Esq.
SPOTTS FAIN PC
411 East Franklin Street, Suite 600
Richmond, VA 23219
Telephone: (804) 697-2000
Facsimile: (804) 697-2100
E-mail: jerbach@spottsfain.com
cmullins@spottsfain.com
khoare@spottsfain.com
- and -
Richard L. Scheff, Esq.
Jonathan P. Boughrum, Esq.
Michael C. Witsch, Esq.
David F. Herman, Esq.
Carrie Sarhangi Love, Esq.
ARMSTRONG TEASDALE LLP
2005 Market Street
29th Floor, One Commerce Square
Philadelphia, PA 19103
Telephone: (267) 780-2000
Facsimile: (215) 405-9070
E-mail: rlscheff@atllp.com
jboughrum@atllp.com
mwitsch@atllp.com
dherman@atllp.com
clove@atllp.com
MIDLAND CREDIT: Stockman Suit Removed to N.D. Illinois
------------------------------------------------------
The case styled as Kathleen Stockman, on behalf of herself and all
others similarly situated v. Midland Credit Management, Inc., Case
No. 2021-CH-04298 was removed from the Circuit Court of Cook
County, Illinois to the United States District Court for the
Northern District of Illinois on Oct. 12, 2021.
The District Court Clerk assigned Case No. 1:21-cv-05396 to the
proceeding.
The lawsuit is brought over alleged violation of the Fair Debt
Collection Practices Act.
Midland Credit Management, Inc. -- https://www.midlandcredit.com/
-- is a specialty finance company providing debt recovery solutions
for consumers across a broad range of assets.[BN]
The Plaintiff appears pro se.
The Defendant is represented by:
Jennifer W. Weller, Esq.
HINSHAW & CULBERTSON LLP
151 N. Franklin Street, Suite 2500
Chicago, IL 60606
Phone: (312) 704-3000
Email: jweller@hinshawlaw.com
MR. BEAST BURGER: Faces Class Action Over Hidden Sales Tax
----------------------------------------------------------
Corrado Rizzi, writing for ClassAction.org, reports that a proposed
class action alleges Mr. Beast Burger has run afoul of Oregon law
by charging a hidden sales tax on fast food.
The plaintiff, a Portland resident, claims to have been charged
$3.16 more than the advertised price when he bought a Beast Style
Burger Combo at defendant Virtual Dining Concepts, LLC's location
near the Portland State University Campus. According to the
lawsuit, Mr. Beast Burger "misrepresented" the hidden charge as a
tax even though the Oregon Unlawful Trade Practices Act prohibits
companies from charging a sales tax on fast food.
Per the suit, Mr. Beast Burger represented to the plaintiff that
his order would cost $15.79. After reading his receipt, however,
the plaintiff discovered that the stated price was "falsely
advertised" given Virtual Dining Concepts added and collected an
extra $3.16 charge, the case says.
The allegedly hidden sales tax was omitted from the advertised
price and misrepresented as a "tax" even though state law prohibits
the charging of a sales tax on fast food, the suit claims.
"Defendant obtained a monetary benefit as increased profits through
this material omission and misrepresentation by collecting
undisclosed surcharges from plaintiff and the putative class
members, entitling plaintiff and the putative class members to
restitution in the amount of the overcharges defendant unjustly
collected from them."
The lawsuit states that the plaintiff does not request damages at
this time, only equitable and injunctive relief from Virtual Dining
Concepts. According to the complaint, the plaintiff and proposed
class members intend to seek damages in an amended complaint should
the defendant "refuse[] to provide the identity and contact
information for each putative class member" and notify these
individuals that they can be reimbursed for the allegedly hidden
sales tax upon request. [GN]
NANO-X IMAGING: Hagens Berman Reminds of December 6 Deadline
------------------------------------------------------------
Hagens Berman urges Nano-X Imaging Ltd. (NASDAQ: NNOX) investors
with significant losses to submit your losses now.
Class Period: June 17, 2021 – Aug. 18, 2021
Lead Plaintiff Deadline: Dec. 6, 2021
Visit: www.hbsslaw.com/investor-fraud/NNOX
Contact An Attorney Now: NNOX@hbsslaw.com
844-916-0895
Nano-X Imaging Ltd. (NNOX) Securities Fraud Class Action:
Nano-X, a digital X-ray company, is developing the "Nanox.ARC," an
imaging system that uses a purportedly novel X-ray source.
On June 17, 2021, Nano-X intrigued investors when it announced that
it had submitted a 510(k) submission to the FDA to demonstrate the
Nanox.ARC is marketed as safe and effective and substantially
equivalent to a legally marketed device.
The litigation alleges that Defendants misled investors concerning
the 510(k) submission for Nanox.ARC. Specifically, while touting
Nanox.ARC's regulatory and commercial prospects, Defendants
concealed: (i) Nano-X's 510(k) application for the Nanox.ARC was
deficient; (ii) accordingly, it was unlikely that the FDA would
approve the 510(k) application for the Nanox.ARC in its current
form; and (iii) as a result, Nano- X had overstated Nanox.ARC's
regulatory and commercial prospects.
The truth emerged on Aug. 19, 2021, when Nano-X reported that the
Company received a request for additional information from the FDA
concerning Nano-X's 510(k) application for the Nanox.ARC, and that
the submission file is placed on hold pending Nano-X's complete
response to the FDA's list of deficiencies within 180 days.
On this news, Nano-X's ordinary share price fell $2.25 per share,
or 9.5%, to close at $21.43 per share on Aug. 19, 2021.
"We're focused on investors' losses and proving Nano-X mispresented
Nanox.ARC's regulatory and commercial prospects," said Reed
Kathrein, the Hagens Berman partner leading the investigation.
If you invested in Nano-X Imaging and have significant losses, or
have knowledge that may assist the firm's investigation, click here
to discuss your legal rights with Hagens Berman.
Whistleblowers: Persons with non-public information regarding
Nano-X Imaging should consider their options to help in the
investigation or take advantage of the SEC Whistleblower program.
Under the new program, whistleblowers who provide original
information may receive rewards totaling up to 30 percent of any
successful recovery made by the SEC. For more information, call
Reed Kathrein at 844-916-0895 or email NNOX@hbsslaw.com.
About Hagens Berman
Hagens Berman is a national law firm with eight offices in eight
cities around the country and over eighty attorneys. The firm
represents investors, whistleblowers, workers and consumers in
complex litigation. More about the firm and its successes is
located at hbsslaw.com [GN]
NATIONSTAR MORTGAGE: Court Narrows Claims in McAdams Class Suit
---------------------------------------------------------------
In the case, PIA McADAMS, on behalf of herself and those similarly
situated, Plaintiff v. NATIONSTAR MORTGAGE LLC d/b/a MR. COOPER, a
Delaware limited liability company, Defendant, Case No.
3:20-cv-2202-L-BLM (S.D. Cal.), Judge M. James Lorenz of the U.S.
District Court for the Southern District of California granted in
part and denied in part the Defendant's motion to dismiss claims.
Background
Plaintiff Pia McAdams brings the dispute against Nationstar. In her
First Amended Complaint ("FAC"), the Plaintiff alleges five claims
against the Defendant: (1) violation of California's Homeowner Bill
of Rights; (2) intentional misrepresentation; (3) negligent
misrepresentation; (4) promissory estoppel; and (5) violation of
California's Unfair Competition Law.
The Plaintiff's amended complaint originates from the Defendant's
alleged misconduct during the loan modification and foreclosure
process. She alleges that the Defendant falsely led her to believe
that it was processing her loan modification application instead of
going through with the foreclosure process. This deceptive and
illegal practice, known as "dual tracking," is the basis for all of
the Plaintiff's claims.
The Plaintiff purchased her former home in August 2004. The home
was purchased "with a loan obtained from American Wholesale Lender,
Inc." Id. Defendant was the mortgage servicer to the Plaintiff's
loan.
The Plaintiff received her first loan modification from Defendant
in October 2010. A few years later, in April 2014, the Plaintiff
defaulted on her loan. Two years later, in December 2016, the
Plaintiff entered a second loan modification with the Defendant.
Unfortunately, her financial difficulties continued over the next
several years. Again, in November 2018, the Plaintiff defaulted on
her loan and requested a third loan modification from the
Defendant.
In December 2018, the Defendant sent the Plaintiff the Borrower
Response Package. It uses the Package to assess whether a loan
modification is necessary. The Package requests several documents,
including income documentation. It "instructed the Plaintiff to
complete the attached documents by Jan. 21, 2019."
The Plaintiff submitted the requested documents on Jan. 16, 2019.
The Defendant did not reply until Feb. 14, 2019. Its response
indicated that the Plaintiff's application was incomplete because
her income documentation was "illegible' and needed to be
resubmitted." It requested that she resubmits her income
documentation by March 15, 2019. The Plaintiff resubmitted her
income documentation on March 8, 2019. Within days, the Defendant
responded and claimed that the income documentation was still
incomplete. It encouraged the Plaintiff to resubmit the income
documentation by April 7, 2019. Nonetheless, on March 22, 2019,
before the Plaintiff submitted her income documentation for the
third time, the Defendant sold the Plaintiff's home in a
foreclosure sale.
Relatedly, the Plaintiff was a class member in a class action
lawsuit against the Defendant. The Class Action was filed by class
representatives Demetrius and Tamara Robinson in the U.S. District
Court for the District of Maryland.
The Robinsons believed that Defendant, as the Robinsons' mortgage
servicer, wronged them throughout the loss mitigation process. In
addition, they alleged on behalf of the class that the Defendant
violated 12 C.F.R. Section 1024.41 by "instituting foreclosure
proceedings while a loss mitigation application or appeal is being
processed," or, "dual tracking." However, the Maryland District
Court entered summary judgment in favor of the Defendant for this
dual tracking claim since Defendant had not begun the foreclosure
process against the Robinsons.
The Class Action concluded with a court approved settlement. The
settlement released the Defendant from: "All actions, causes of
action, claims, demands, obligations, or liabilities of any and
every kind that were or could have been asserted by the Class
Representative or Class Members in connection with the submission
of loss mitigation applications during the Class Period. This
release includes, but is not limited to, claims for statutory or
regulatory violations, the Real Estate Settlement Procedures Act,
Regulation X, the Maryland Consumer Protection Act, unfair,
abusive, or deceptive act or practice claims, tort, contract, or
other common law claims, or violations of any other related or
comparable federal, state, or local law, statute, or regulation."
Despite this release, the Plaintiff brings five claims as noted
above: (1) violation of California's Homeowner Bill of Rights; (2)
intentional misrepresentation; (3) negligent misrepresentation; (4)
promissory estoppel; and (5) violation of California's Unfair
Competition Law.
The Defendant moves to dismiss these claims pursuant to Federal
Rule of Civil Procedure 12(b)(6).
Discussion
I. Judicial Notice
As an initial matter, the Plaintiff and the Defendant request that
the Court takes judicial notice of several exhibits. Judge Lorenz
considers the parties' requests in the order they were presented.
1. Defendant's Request for Judicial Notice
The Defendant asks the Court to take judicial notice of nine
exhibits.
Exhibit one is the Plaintiff's first loan modification agreement.
Judge Lorenz finds that this agreement is public record because it
was recorded with the San Diego County Recorder's Office. Thus,
judicial notice is appropriate for exhibit one.
Exhibit four is public information displayed on the California
Department of Financial Protection and Innovation website. The
Court may take judicial notice of public information displayed on
government websites when "neither party disputes the authenticity
of the website or the accuracy of the information displayed
therein." Because neither party disputes the authenticity of the
website or the accuracy of the information judicial notice is
appropriate for exhibit four.
Exhibits two and three are documents that were filed with the U.S.
Bankruptcy Court for the Southern District of California. Exhibits
five through nine are all documents that were filed with the
Maryland District Court. Court documents are public record and
available for judicial notice. Thus, judicial notice is appropriate
for exhibits two, three, and five through nine.
2. Plaintiff's Request for Judicial Notice
The Plaintiff asks the Court to take judicial notice of two
exhibits. Judge Lorenz finds that both exhibits are documents that
were filed with the Maryland District Court. Thus, judicial notice
is appropriate for exhibit one and two.
II. Motion to Dismiss
The Defendant argues that the Plaintiff's claims are barred by
claim preclusion. Alternatively, it argues that each claim should
be dismissed on independent grounds.
1. Claim Preclusion
The Defendant first argues that the Plaintiff's claims are barred
because she released her claims in the Class Action settlement
agreement. The Plaintiff counters that the settlement agreement
does not bar her current claims because they are not "based on the
identical factual predicate as the underlying claims in the settled
class action."
Judge Lorenz holds that the Robinsons did not adequately represent
the Plaintiff in the Class Action regarding the dual tracking
claims. Accordingly, the settlement agreement cannot have
preclusive effect. He also finds that the Plaintiff's claims are
not barred under a traditional claim preclusion analysis. He says,
the Plaintiff's claims and the Robinsons' claims have some factual
over
lap, which in turn gives rise to similar infringements and
evidence. But there is no doubt that there is not an identity of
claims.
2. Homeowner's Bill of Rights (HBOR)
The Defendant contends that section 2923.6(g) of the Homeowner's
Bill of Rights does not apply because the Plaintiff defaulted on
two previous loan modifications. It also claims that section 2923.6
does not apply because the Plaintiff did not provide sufficient
documentation of her alleged change in financial circumstances.
According to the Defendant, her "hardship letter did not notify
Nationstar of any material change in financial circumstances that
occurred since her previous loan modification in 2016 as required
by Section 2923.6(g)."
In response, the Plaintiff argues that her previous defaults do not
affect the applicability of the HBOR because section 2923.6(g)
requires lenders like the Defendant to comply with HBOR where a
borrower provides documentation of a change in financial
circumstances, like she had, that occurred after the date of the
previous application. She argues that she submitted a letter of
hardship around Jan. 16, 2019, in which she described a loss of
income after her April 2015 bankruptcy and she submitted paystubs
documenting the decrease along with a breakdown of her monthly
expenses that reflected net monthly income of $556.
Judge Lorenz holds that the documents demonstrate that the
Plaintiff has sufficiently alleged a change in her financial
circumstances. First, she indicated that the hardship began after
her bankruptcy in 2015. Next, she explained the reasons for the
change, and provided her income and expenses, along with her
paystubs. It would have benefitted the Plaintiff to include the
specific date upon which her employment with Central Texas College
was terminated in the letter, as she alleges that was the cause of
her reduced income, however she alleges in the FAC that she
included her paystubs which would demonstrate the date of the
change in income. The Plaintiff has provided "sufficient factual
matter" in the FAC "to state a facially plausible claim to relief."
Accordingly, the motion to dismiss the Plaintiff's HBOR claim is
denied.
A. Fraud
The Plaintiff's fraud claims for intentional and negligent
misrepresentation must be dismissed, according to the Defendant,
because they do not identify a specific false statement the
Defendant knowingly made, upon which the Plaintiff relied when she
chose not to pursue other options to foreclosure. As a result, the
claims fail to satisfy the heightened pleading requirements of FRCP
9(b). The Defendant further argues that "courts do not allow fraud
claims based only on a violation of the HBOR."
According to the Plaintiff, the FAC adequately alleges claims for
intentional and negligent misrepresentation because she identified
representations made by Nationstar that stated she must return
documents within the specified timeframes to avoid foreclosure, but
it moved forward with the foreclosure despite her submission of the
requested documents.
Judge Lorenz holds that the Plaintiff has sufficiently alleged
factual content for the Court to draw the reasonable inference that
the defendant is liable for the alleged misconduct. Hence, the
Defendant's motion to dismiss the Plaintiff's claims for
intentional and negligent misrepresentation is denied.
B. Promissory Estoppel
The Defendant argues that the Plaintiff's promissory estoppel claim
must fail because she has not identified a clear and unambiguous
promise Nationstar made, and then reneged upon. Furthermore, the
Plaintiff has not sufficiently alleged that she relied upon a
promise by Nationstar, and as a result, suffered damages. The
Plaintiff counters that Nationstar made a promise to "halt the
foreclosure process upon submission of all documents requested by
Nationstar by the `reasonable date' provided by Nationstar.
Judge Lorenz holds that although the Plaintiff claims the Defendant
further promised to halt the foreclosure process upon submission of
the requested materials before the "reasonable date," she has only
identified the above promise, which Defendant met by providing a
"reasonable date" in each correspondence. Accordingly, the
Plaintiff's promissory estoppel claim is dismissed without
prejudice and with leave to amend.
C. UCL Claim
According to the Defendant, the Plaintiff's claim for violation of
the UCL must be dismissed because she has not sufficiently alleged
an unfair business practice and because she lacks standing to bring
the claim. The Plaintiff argues in response that she sufficiently
alleged that the Defendant violated section 2923.6 of the HBOR, and
that her common law intentional and negligent misrepresentation
claims have merit because the Defendant continued the foreclosure
process after the Plaintiff submitted a completed application.
The Defendant's motion to dismiss is granted as to the Plaintiff's
claim for a violation of the UCL. Judge Lorenz holds that the
reason the Plaintiff's home was ripe for foreclosure was due to her
default and that default was not caused by the Defendant's alleged
misrepresentations regarding the status of her loan modification or
the date by which she needed to submit additional documents.
Conclusion
For the foregoing reasons, Judge Lorenz granted in part and denied
in part the Defendant's motion to dismiss. The Plaintiff's claims
for promissory estoppel and violation of the UCL are dismissed
without prejudice and with leave to amend.
A full-text copy of the Court's Sept. 29, 2021 Order is available
at https://tinyurl.com/7sm5smt6 from Leagle.com.
NEW YORK CITY, NY: Seeks Time Extension to Oppose Class Cert. Bid
-----------------------------------------------------------------
In the class action lawsuit captioned as Chalmers, et al. v. City
of New York, Case No. 1:20-cv-03389-AT (S.D.N.Y.), the Defendant
asks the Court to enter an order granting a 30-day extension of
time, from October 14, 2021 to November 15, 2021, to file
defendant's opposition to class certification, and to request that
summary judgment briefing be held in abeyance, pending resolution
of plaintiff's motion for class certification.
A copy of the Defendant's motion dated Oct. 6, 2021 is available
from PacerMonitor.com at https://bit.ly/3j2vTrd at no extra
charge.[CC]
NISSAN NORTH: Nov. 22 Headlamp Settlement Opt-Out Deadline Set
--------------------------------------------------------------
Chimicles Schwartz Kriner & Donaldson-Smith LLP on Oct. 11
disclosed that a proposed Settlement with Nissan North America,
Inc. on behalf of all United States residents who are current or
former owners or lessees of a 2013–2018 Nissan Altima
manufactured with halogen headlights (Settlement Class Members).
The lawsuit alleges that the headlamps can become dim over time due
to delamination of reflective surfaces inside the headlamp.
Under the Settlement, NNA has agreed to provide the following
relief to Settlement Class Members:
1. Class Members who previously paid for headlamp assembly
replacements can receive cash reimbursement. The deadline to file
reimbursement claims is April 25, 2022.
2. NNA will provide a 3-year extension of the manufacturer's
warranty covering headlight dimming caused by delamination, for a
total of 6 years of coverage.
3. Class Members whose Class Vehicles are already outside of the
6-year warranty period when the Settlement becomes effective can
receive a free one-time repair at an Authorized Nissan Dealer
during a limited window of time following court approval of the
Settlement. To receive this benefit, Class Members must file an
Out-of-Warranty Repair claim and take their Altima to the Dealer
within the limited window of time.
Additional details are available at
www.AltimaHeadlightSettlement.com. All of these benefits are
subject to the settlement receiving final approval by the court.
Settlement Class Members who do not want to be legally bound by the
Settlement must exclude themselves by November 22, 2021. Settlement
Class Members who do not exclude themselves will release their
claims against Nissan. The Court has scheduled a hearing on
December 20, 2021, to consider whether to approve the Settlement,
Class Counsel's request for attorneys' fees of up to $2,500,000
including expenses, and Incentive Awards for the Class
Representatives of $5,000 each. You can appear at the hearing, but
you do not have to. You can hire your own attorney, at your
expense, to appear for you at the hearing.
For more information, including the scope of the Extended Warranty
coverage, how to file a claim for out-of-pocket reimbursement,
exclude yourself from the Settlement or object, please visit
www.AltimaHeadlightSettlement.com or contact the Settlement
Administrator by calling 1-855-786-0996. [GN]
NORTHERN NATIONAL: Bid to Quash in De Leon Suit Moved to W.D. Texas
-------------------------------------------------------------------
In the case, JESSIE DE LEON, individually and on Case behalf of all
others similarly situated, Plaintiff v. NORTHERN NATIONAL GAS
COMPANY, Defendant, Case No. 21-mc-0042 (WMW/ECW) (D. Minn.),
Magistrate Judge Elizabeth Cowan Wright of the U.S. District Court
for the District of Minnesota:
(i) granted the Plaintiff's Motion to Transfer Merjent's
Motion to Quash; and
(ii) transferred Non-Party Merjent, Inc.'s Motion to Quash
Subpoena Duces Tecum Served by Plaintiff to the U.S.
District Court for the Western District of Texas.
Background
The matter stems from a putative class action pursuant to the Fair
Labor Standards Act ("FLSA") pending in the Western District of
Texas ("Underlying Litigation"). The Plaintiff initiated the
Underlying Litigation to recover unpaid overtime wages owed to him,
and other workers alike, from his alleged employer, Northern
National Gas Company ("NNG"). Merjent is not a party in the
Underlying Litigation.
On Sept. 29, 2020, the Plaintiff moved in the Underlying Litigation
for conditional certification of a putative FLSA class of "all
inspectors of NNG who were paid a day-rate with no overtime in the
past 3 years." He filed his motion under the standard set forth in
Lusardi v. Xerox Corp., 118 F.R.D. 351 (D.N.J. 1987), which
"district courts in the Fifth Circuit had long employed when
considering motions for conditional certification under the FLSA."
However, on Jan. 12, 2021 in Swales v. KLLM Transport Services, the
Fifth Circuit enunciated its rejection of Lusardi." Because the
Plaintiff's motion for conditional certification was filed under
the Lusardi standard, U.S. Magistrate Judge Ronald C. Griffin of
the Western District of Texas denied it without prejudice on Jan.
27, 2021 so the Plaintiff could refile it when appropriate under
the new procedures articulated by the Fifth Circuit in Swales.
On March 17, 2021, the parties to the Underlying Litigation filed
"Joint Scheduling Recommendations" in which they proposed discovery
that would "focus on class wide discovery related to certification"
because "Swales requires courts to consider whether material legal
or factual similarities among the proposed class exist and whether
these similarities have the potential to advance the claims,
collectively, to some resolution" and "encourages courts to
authorize early discovery on those facts and legal consideration."
Judge Griffin entered a "Preliminary Discovery Control Plan"
adopting in large part the parties' Joint Scheduling
Recommendations. The Preliminary Discovery Control Plan, in part,
required NNG to produce a list of vendors that provided pipeline
inspectors to work on its sites from March 1, 2018, and for the
Plaintiff to thereafter subpoena the non-party vendors identified
on NNG's list. NNG had agreed not to object to a subpoena in the
form attached as Exhibit A to the parties' Joint Scheduling
Recommendations. In accordance with the Preliminary Discovery
Control Plan, NNG produced a list of 16 vendors to the Plaintiff,
including Merjent.
The Plaintiff initially attempted to serve the subpoena on
Merjent's registered agent in Florida on May 19, 2021. However,
because Merjent is a Minnesota corporation with its headquarters in
Minneapolis and due to the limited time set for its compliance, the
Plaintiff and Merjent agreed that he would withdraw the subpoena
and Merjent would accept service of a second subpoena on the
provision that it was deemed served in the District of Minnesota.
Accordingly, the Plaintiff served a second subpoena (the subpoena
at issue) on Merjent via email on June 2, 2021.
On June 14, 2021, Merjent filed the Motion to Quash and supporting
papers. The Court set a hearing on the Motion to Quash for Aug. 30,
2021, and on Aug. 23, 2021, the Plaintiff filed a "Motion for Leave
to Proceed without Local Counsel" along with a "Motion to Transfer
or Opposition to Merjent's Motion to Quash" and supporting papers.
On Aug. 26, 2021, the Court denied the Plaintiff's Motion for Leave
to Proceed without Local Counsel and struck all papers filed by the
Plaintiff on August 23 because his attorneys were not admitted to
practice in the District of Minnesota and because Local Rule 83.5
and Federal Rule of Civil Procedure 45(f) did not permit him to
proceed without local counsel. The Court reset the hearing on
Merjent's Motion to Quash for Sept. 10, 2021 and afforded the
Plaintiff until Sept. 1, 2021 to retain local counsel, comply with
Local Rule 83.5, and refile its Motion to Transfer and opposition
to the Motion to Quash.
On Sept. 1, 2021, Michele Fisher of Nichols Kaster PLLP entered an
appearance as local counsel for the Plaintiff and filed motions
seeking pro hac vice admission for Rochelle Prins and Richard
Schreiber of Josephson Dunlap Law Firm, which the Court granted.
The Plaintiff also re-filed his opposition to the Motion to Quash
and the Motion to Transfer in conjunction with the September 1
filings. On Sept. 9, 2021, Ms. Fisher moved for Andrew Dunlap's pro
hac vice admission, which the Court granted.
On Sept. 10, 2021, the Court held a hearing on the Motion to
Transfer and Motion to Quash. At the hearing, the Plaintiff
withdrew some of his requests in his second subpoena to Merjent
dated June 2, 2021, leaving only Request Numbers 7, 8, and 10
through 14 remaining. The Court thereafter took both motions under
advisement.
Discussion
In its supporting memorandum for the Motion to Transfer, the
Plaintiff argues that the Western District of Texas court in the
Underlying Litigation authorized discovery to Merjent in the form
of a subpoena and as a result, the Motion to Quash and the
Plaintiff's opposition to it should be transferred to that court,
or in the alternative, denied. He further argues that because the
Western District of Louisiana recently transferred another vendor's
motion to quash to the Western District of Texas for resolution in
connection with the Underlying Litigation, and because the
Plaintiff anticipates filing motions to compel compliance with the
subpoenas, exceptional circumstances justify transfer under Rule
45(f).
Merjent does not consent to transfer and argues that in determining
whether transfer is warranted, the primary focus should be on the
burden such transfer will create on it as a nonparty to the
Underlying Litigation. It argues that exceptional circumstances do
not exist in the case because the Underlying Litigation does not
involve "a complex issue, has not been pending long, and has had
little activity." Merjent further argues that Judge Griffin in the
Western District of Texas has not ruled on any nonparty motions
such as the one before the Court, that the Preliminary Discovery
Control Plan is not dispositive as Merjent did not agree to its
terms, and that because Merjent is not a party to the Underlying
Litigation, orders or plans entered in the Underlying Litigation
are not binding on it. It contends that the Plaintiff's subpoena
attempts to seek a broader set of documents from it than was
contemplated by the Preliminary Discovery Control Plan and that
requiring Merjent to litigate the Motion to Quash in Texas would
impose an undue burden on it.
Because Merjent does not consent to transfer, the question before
the Court is whether "exceptional circumstances" exist that warrant
transfer of the Motion to Quash to the Western District of Texas.At
least one court in this District has previously considered the
following factors in determining exceptional circumstances: (1)
whether the underlying litigation will be disrupted if the subpoena
dispute is not transferred; (2) whether the nonparty subpoena
recipient will suffer undue burden or cost if the subpoena dispute
is transferred; and (3) whether, based on various considerations,
the issuing court is in the best position to rule on the motion to
compel.
Judge Wright concludes that the transfer of the Motion to Quash is
"warranted to avoid piecemeal rulings by different judges, reaching
different conclusions, in resolving identical disputes," and to
avoid disruption of "the issuing court's management of the
Underlying Litigation," advisory committee notes to 2013 amendment.
These concerns, she says, are particularly important in view of the
directive in Swales that the district court tailor preliminary
discovery based on the facts and legal considerations of the
specific case. Accordingly, Judge Wright finds that exceptional
circumstances warrant transfer of the Motion to Quash.
Disposition
Judge Wright granted the Plaintiff's Motion to Transfer and
transferred and remitted Non-Party Merjent, Inc.'s Motion to Quash
Subpoena Duces Tecum Served by Plaintiff to the U.S. District Court
for the Western District of Texas for disposition in connection
with the Underlying Litigation. Upon transfer, the Clerk of Court
is directed to close the case in the Court.
A full-text copy of the Court's Sept. 29, 2021 Order is available
at https://tinyurl.com/ff72n34y from Leagle.com.
OHIO STATE UNIVERSITY: State Republicans Discuss Sexual Abuse Bill
------------------------------------------------------------------
Jake Zuckerman, writing for Ohio Capital Journal, reports that
despite hearing public, firsthand accounts of sexual abuse from
eight of at least 177 victims of Ohio State sports physician Dr.
Richard Strauss, state Republican leaders indicated they never
planned to pass introduced legislation that would allow his victims
to hold the university accountable in court.
Both former House Speaker Larry Householder, R-Glenford, and
current House Majority Leader Bill Seitz, R-Green Twp., said in
recent statements they used the legislation and high-profile
hearings to apply pressure on OSU to generate a larger out-of-court
settlement for victims -- not to guarantee anyone their right to a
trial.
In interviews, five victims of Strauss' abuse and several of their
attorneys say they were never told of the purported strategy.
"Why f**k with victims in that way? That's the most irresponsible
thing I've ever heard," said Mike Schyck, a two-time all-American
wrestler for Ohio State, in a recent interview.
Schyck testified before lawmakers in 2019, recounting how Strauss
sexually abused him during physical examinations. He said he
thought the bill was an honest effort to change the law, not some
kind of legal strategy.
"Why would you consider putting us through that?" he said.
Ohio law sets a two-year window within which adult victims of
sexual abuse must file any civil lawsuits (child victims get a
longer window). Strauss' conduct occurred between 1979 and 1996,
according to an OSU-commissioned, independent investigation.
"We [found] that university personnel had knowledge of Strauss'
sexually abusive treatment of male student-patients as early as
1979, but that complaints and reports about Strauss' conduct were
not elevated beyond the Athletics Department or Student Health
until 1996," the report states.
Victims filed a class action lawsuit that the Associated Press
reports would grow to include about 400 plaintiffs. After the
filing, an Ohio Republican introduced House Bill 249 in 2019 to
allow a special exemption to this statute of limitations for
Strauss victims. Last month, long after the bill died, U.S.
District Judge Michael Watson dismissed the lawsuit, citing the
statute of limitations. However, he lambasted Strauss' "unspeakable
sexual abuse" and how OSU "failed to protect these victims" in his
opinion.
He placed much of the blame for his ruling at state lawmakers'
feet.
"If there is a viable path forward for plaintiffs on their claim
against Ohio State, it starts with the legislature, rather than the
judiciary," he said.
The House Civil Justice Committee held six hearings on HB 249,
hearing out victims, their wives, and parents. However, legislative
leaders now admit they never planned to pass the bill.
"The reality is that the bill was introduced to provide the victims
with a public forum to tell their stories and hope to persuade the
university to settle with victims and bring some degree of closure
to a very bad situation," said Householder, then House speaker, in
a statement.
Shawn Dailey, a former OSU wrestler and Strauss victim who
testified before lawakers, said he was never told of this plan.
"That was someone else's intent, perhaps, but it was never our
intent," he said.
Rocky Ratliff, an attorney representing Strauss victims and a
victim and former wrestler himself, said he didn't know of the
strategy. Discussing it in an interview, he called Ohio lawmakers
"pathetic."
During the hearings in 2019 and early 2020, athlete after athlete
told lawmakers about how Strauss abused them, and the university
failed to act on their complaints. Most all of them cried in front
of strangers, lawmakers, TV cameras, and legislative staff.
They described to lawmakers abuses from Strauss like sodomy, forced
masturbation, groping and fondling, usually during routine
physicals required as a term of participating as a varsity athlete.
Some described dealing with PTSD, broken relationships with parents
and wives stemming from the abuse, trust issues causing fissures in
personal relationships, alcoholism and more.
One former wrestler, Daniel Ritchie, described a series of
escalating, unwanted advances from Strauss during annual physicals.
When coaches ordered Ritchie to see Strauss for a shoulder injury
his junior year, the appointment descended into Strauss stroking
Ritchie's genitals.
It was his first time telling his story publicly -- until that
point, he was only identified as a John Doe in the OSU lawsuit.
Ritchie explained to lawmakers how the abuse prompted him to quit
wrestling. He couldn't bring himself to tell his parents why. He
lost his scholarship and his grades suffered, prompting him to take
time from school.
In an interview, he expressed cycles of frustration at telling
lawmakers his story on two occasions, retraumatizing himself for
nothing.
"You have state government officials, and their sole job is to
represent the people of their state," he said. "When those people
come before them and say, 'We need your help,' they didn't help."
Applying pressure
The bill sponsor, Rep. Brett Hudson Hillyer, R-Uhrichsville, said
he, in tandem with the victims, tried in good faith to pass House
Bill 249. The legislation is extraordinarily narrow -- it allows
the Strauss victims, not any other sexual abuse or assault victims,
to bring civil lawsuits against OSU even if the statute of
limitations has passed.
In an interview, Hillyer said neither he nor the legislature should
be blamed for the bill's failure and Watson's ruling against the
plaintiffs. He insisted he fought in earnest to pass the bill but
the votes just weren't there. The bill never came up for a vote,
which is usually a decision of the committee chairman in
consultation with House leadership.
"I don't think there was ever a time that leadership was heavily
involved other than encouraging more hearings and asking Ohio State
to do the right thing," Hillyer said.
The chairman at the time, now-former Rep. Steve Hambley, R-New
Brunswick, declined to answer questions and referred comment to
Householder. He terminated a phone call when asked why he didn't
put the bill up for a vote.
Seitz, a powerful House Republican and Householder's lieutenant
overseeing the judicial committees at the time, didn't play any
public role regarding the bill. However, he recently wrote a
letter, which he provided to the Ohio Capital Journal, in response
to requests from Strauss victims to resurrect HB 249 in the current
legislative session.
While he described Strauss' conduct as "deplorable," he said he
opposed HB 249, which was "intended to apply pressure to Ohio State
to come to the table and make meaningful settlement offers."
Statutes of limitations, he said, ensure claims are brought when
memories are fresh, evidence has not yet been lost, and defendants
have a fairer opportunity to defend themselves against allegations
that may be "tainted" by faded memories or misremembered events.
Plus, he said, if lawmakers grant this extension, where does it
end?
"It would have led to a flood of similar demands that the civil
statute of limitations for damages be lifted as to lawsuits against
churches, the Boy Scouts, the Girl Scouts, and any number of
charitable institutions whose past practices facilitated abuse
similar to the abuse that you suffered," he wrote.
Householder rejected the notion that lawmakers failed on the bill;
the votes just weren't there, he said.
"The intent was to pass the bill if it had support. I guess the
obvious questions are, why didn't [the victims] settle once it was
extremely obvious the bill was out of oxygen?" he said.
A heinous precedent
With a statute of limitations as a shield and a legislature
signaling its unwillingness to get rid of it, OSU faced a lower
liability risk than universities that recently found themselves in
similar positions.
After a former OSU wrestler blew the whistle on Strauss' conduct in
2018, a university-commissioned investigation by the Perkins Coie
law firm established that Strauss abused at least 177 victims over
20 years. Even after the university forced Strauss out in 1997, it
allowed him to voluntarily retire and keep his "emeritus"
honorific.
Ohio State settled lawsuits with 185 Strauss victims, paying out a
total of $46.7 million, about $252,000 per victim. They settled
another roughly 45 claims through its "Strauss Individual
Settlement Program," according to a university spokesman. The
settlement program contains a term that it's not "an admission or
evidence of any wrongdoing or liability on the part of Ohio State
or of the truth of any of the allegations in the lawsuits."
The terms of the settlement allow victims to speak about their
abuse but prohibits them from any "disparagement of Ohio State's
handling of this matter since March 2018, of the terms of this
settlement, or of the Program."
Compare that to Michigan State University's Larry Nassar. The
university paid $500 million to settle lawsuits in 2018 filed by
332 alleged victims of his sexual abuse, which occurred under guise
of medical treatments while serving as a women's gymnastics doctor
at the university and Olympic level. That's about $1.5 million per
victim.
The Michigan Legislature passed legislation that year to extend the
state's statutes of limitation, giving sexual assault victims more
time to report and sue their accusers, according to Michigan Live.
The University of Southern California paid $852 million earlier
this year to 710 women who accused campus gynecologist George
Tyndall of sexual assault and said the university failed to
properly respond -- that's about $1.2 million per victim.
In 2019, Gov. Gavin Newsom signed legislation to extend the statute
of limitations allowing Tyndall's victims to sue the university,
according to the Huffington Post.
The OSU saga, however, is unique in that Strauss died by suicide in
2005 -- Tyndall and Nassar are still alive.
Robert Allard, an attorney representing several Strauss victims,
said his clients were victims of direct contact abuse. He accused
Wright and Schulte, an Ohio firm representing other victims who led
negotiations with OSU for the settlement, of only representing
voyeurism victims. The cheap settlements, he said, took pressure
off state lawmakers to pass HB 249.
"The truth is that virtually all of those . . . who suffered actual
sex abuse, i.e. forced masturbation, digital penetration and
sodomy, have yet to receive anything remotely close to a fair offer
for settlement," he said. "OSU concocted a scheme designed to screw
over true sex abuse victims and found a lackey to pull it off. The
whole thing makes me ill. I have never before in my 25 years seen
such Machiavellian behavior designed to violate sex abuse victims
all over again."
OSU spokesman Chris Booker called Allard's allegation "patently
false," noting that individual settlement amounts are determined by
an independent party without input from the university. He didn't
offer specifics as to what kinds of claims have been settled.
Richard Schulte, of the namesake firm, did not respond to repeated
inquiries. He now represents sexual abuse survivors at a similar
scandal emerging out of the University of Michigan.
"Our ongoing negotiations with Ohio State have resulted in a fair
settlement process that acknowledges the harm inflicted on
individual survivors and provides a pathway to healing," he said in
an OSU news release announcing some of the settlements. "Once
again, Ohio State has stepped forward and done the right thing."
Justice for some?
In 2019, House Democrats introduced more comprehensive legislation
to address sexual assault in Ohio. It would have removed the
criminal statute of limitations to prosecute rape, along with the
civil statute of limitations. It also would have closed a loophole
in Ohio law that shields men from prosecution if they rape their
spouses.
The bill received one, perfunctory hearing in December 2020 with
mere days left in the legislative session. House Democrats
controlled 38 of 99 seats at the time, meaning they couldn't pass
any bills for the most part without GOP buy-in and acquiescence
from the speaker.
Rep. Kristin Boggs, D-Columbus, sponsored that bill. She said the
Democrats likely would have opposed HB 249.
"I 100% believe the victims of Strauss deserve justice, but so does
everyone else," she said. "The fact that this was only being carved
out for a specific subset of victims, who by all accounts have
suffered greatly due to these horrendous experiences perpetrated by
this awful human, I don't think that justified opening access to
justice for them and denying it for everyone else."
But Rep. Rich Brown, the ranking Democrat on the House Civil
Justice Committee, said he figured Democrats likely would have
voted for the Strauss bill, although they preferred Boggs' bill. He
said he regularly prodded Hambley to put the Strauss bill up for a
vote, only to be told the "powers that be" weren't having it.
"I feel sorry for the victims," he said in an interview. "Their
testimony in committee was powerful."
The hearings
Over the course of six hearings, athlete after athlete recounted
their abuse; how coaches and administrators ignored their
complaints; and how the abuse caused lasting damage.
A swimmer detailed abuse that started with unwanted and
inappropriate touching of his genitals. His career ended when
Strauss attempted to forcibly sodomize him. He quit swimming, then
quit school. He doesn't trust doctors and won't see them without
his wife present.
A hockey player described how Strauss' abuse started small and
escalated over the years, culminating in the doctor touching and
stroking his penis during a required physical. He told an athletic
trainer who did nothing. He described himself as a "train wreck"
afterward, losing an NHL deal before being diagnosed with PTSD.
"If someone had done something when I reported this 30 years ago,
none of these other men here would have been abused," he said. "Not
a single one."
A wrestler said he was molested 15 times by Strauss in the 1990s,
sometimes at the doctor's personal home. He said he has sought out
therapy and contemplated suicide. He said he hasn't had a physical
in more than 20 years now.
"In my mind, I was raped, 15 times. Everybody knew," he said. "I
don't know why this has taken so long, and all I can ask is just,
please, vote and pass and say yes to 249 so this doesn't happen
again."
A non-athlete student and former major in the U.S. Army said he was
abused at Strauss' clinic and complained to the university as late
as 1995. Administrators, he said, told him no one had ever
complained before about Strauss.
Brian Noethlich, an attorney representing an anonymous victim in
the lawsuit, said his client was drugged and sodomized by Strauss.
"I'm haunted to this day by the image of all the blood," he said,
reading a statement his client wrote. "I was shocked and scared, in
tremendous pain and didn't know what to do."
Lobbying
State lobbying records show Ohio State University registered two
lobbyists to work on the bill; the Inter-University Council of
Ohio, which represents Ohio schools, had another three.
Some of the plaintiffs' firms followed suit.
Sharp Law, a firm representing several Strauss victims, hired GOP
powerhouse lobbyist Neil Clark to lobby on its behalf. Clark would
later be charged alongside Householder in the summer of 2020 for
his alleged role in a bribery scheme operated through the House
Speaker's office. Prosecutors say he served as Householder's proxy,
controlling a dark money nonprofit. Both Householder and Clark (who
died by suicide earlier this year) pleaded not guilty and denied
accusations of bribery.
Clark represented a wide range of clients, and there's no evidence
to link the criminal scandal (mostly involving coal and nuclear
bailouts) to the Strauss legislation.
However, Householder made statements through the media at the time
calling on OSU to "do the right thing" and settle with the Strauss
victims.
Meanwhile, a nonprofit called Advance America, registered to a PO
Box in Hyattsville, Maryland, disclosed to the IRS that it operated
an LLC known as the "Ohio State Accountability Project," which
purchased TV ads, billboards, and mailers, all pressuring lawmakers
to support the Strauss-specific bill. The LLC was incorporated by
Cincinnati attorney David Langdon, who operates dozens of dark
money operations, often supporting socially conservative political
causes. He didn't respond to phone calls and emails.
The groups do not disclose the sources of their funding.
An email obtained by the Ohio Capital Journal, written by a
lobbyist registered alongside Clark to various attorneys
representing Strauss victims, with the subject line "The Ohio State
Accountability Project," details a phone call from Kevin DeWine --
a former lawmaker and cousin of the governor. The email states
DeWine is a neighbor of Rick Schulte, who was the lead negotiator
settling with OSU.
The email describes a "robo text" that went out to undisclosed
recipients, and other strategies.
"Their PR focus is on making OSU uncomfortable rather than pushing
for legislation although they understand that HB 249 provides a
forum for more attention on the issue as well as increases in media
coverage," the email states.
Large insurance firms like AIG and Liberty Mutual Group registered
to lobby as well; insurers generally oppose expansions of liability
of institutions they cover. They didn't respond to inquiries from
the Capital Journal.
The Catholic Church, which has its own history of sexual abuse and
subsequent coverups, registered two lobbyists on the bill as well.
Jerry Freewalt, executive director of the Catholic Conference of
Ohio, said they didn't take a position for or against the bill.
"The Conference made some inquiries about the legislation and
monitored it as we do with many other bills covering a wide-range
of issues," he said.
"A disservice to survivors"
Camille Cooper, vice president of public policy for the Rape, Abuse
and Incest National Network, lobbies state legislatures around the
U.S. to eliminate or extend their statutes of limitation for rape
charges.
She said she has never heard of a bill used as leverage, as House
GOP leaders described.
"It's quite a disservice to survivors," she said. "It takes a lot
when they come down to the General Assembly to tell their story.
That's a little -- I would call it cynical."
She said there are complicated reasons victims don't immediately
come forward. Extensions of statutes of limitation don't lower
plaintiffs' burden of proof, she said, they just let them come
forward when ready.
"There are a lot of survivors who do not come forward for years, or
even decades, especially if it's due to power," she said. "We
shouldn't leave the doors of justice open only just a crack."
Camille Crary testified in support of the bill on behalf of the
Ohio Alliance to End Sexual Violence. In an interview, however, she
acknowledged constitutional problems with only extending the
statute of limitation for Strauss victims instead of all victims of
abuse.
She said among the problems with lawmakers' inaction: it sends a
signal to institutions that if they learn of a monster within their
ranks, they only need to run out the clock a few years to escape
liability. There's no incentive to immediately correct problematic
conduct as it arises.
Ratliff, the Strauss victim who sued the university as an attorney,
explained the OSU strategy another way: "Deny it, cover it up, hope
it never comes out, and if it does, just argue the statute of
limitations."
As for the lawmakers' pressure play, Crary said it seems to assume
that victims want to talk about their abuse publicly, which is not
always true.
"I think it's extremely presumptuous for any lawmakers …
especially who didn't work for victims, to say what is or is not
beneficial for them," she said.
Only one person publicly opposed the bill: Kevin Shimp,
representing the Ohio Alliance for Civil Justice, which is
comprised of the Ohio Chamber of Commerce, the Ohio Manufacturers
Association and others.
"The alliance believes creating the potential for endless liability
is not the appropriate balance because it only considers one
party's interest," he said. "Passage of House Bill 249 would
undermine the important goals of statutes of limitation by reviving
claims that were not filed in criminal or civil court within the
time frame required by statute."
Predictable failure
Part of the plaintiff's argument was that the statute of
limitations on Strauss victims didn't start at the time of their
abuse, given OSU's role concealing Strauss' conduct.
But as Watson, the judge, ruled in his dismissal, plaintiffs knew
of their injury, the identity of the perpetrator and his employee.
The lawmakers who could have solved the plaintiffs' statute of
limitations problem said they figured the lawsuit would fail
without legislative action.
Seitz noted that the victims who held out against OSU's settlement
offer were left with nothing, "as most lawyers could have
predicted."
In May 2019, days after the release of the damning,
OSU-commissioned Perkins Coie report, Hillyer hosted a press
conference with victims to unveil the legislation. A reporter asked
if the Strauss lawsuit would fail without a change to the law.
"Under the current statute of limitations, they would have expired,
and unfortunately, these victims would not have an opportunity to
have their day in court," Hillyer said. [GN]
OPTUM INC: Ct. Enters Class Cert. Hearing, Briefing Sched Order
---------------------------------------------------------------
In the class action lawsuit captioned as NANA AKUA SERWAAH ODDEI,
an individual, on behalf of all other similarly situated, v. OPTUM,
INC., a Delaware corporation, HEALTHCARE PARTNERS MEDICAL GROUP,
P.C., a California corporation, SCANSTAT TECHNOLOGIES, LLC, a
Delaware limited liability company; and DOES 1 through 20
inclusive, Case No. 2:21-cv-03974-SB-MRW (C.D. Cal.), the Hon.
Judge Stanley Blumenfeld, Jr. entered an order modifying the class
certification schedule by adopting the proposed dates as follows:
Prior Current Proposed
Dates Dates Dates
Plaintiff's Motion Oct. 8, 2021 Oct. 8, 2021 Nov. 19, 2021
for Class
Certification Filing
Deadline:
Defendants Opposition Nov. 5, 2021 Nov. 5, 2021 Dec. 17, 2021
deadline:
Reply Deadline: Dec. 26, 2021 Dec. 26,2021 Jan. 7, 2022
Hearing (8:30 a.m.): Dec. 17, 2021 Dec. 17, 2021 Jan. 28 2022
Optum is an American pharmacy benefit manager and health care
provider. It is a subsidiary of UnitedHealth Group since 2011.
A copy of the Court's order dated Oct. 6, 2021 is available from
PacerMonitor.com at https://bit.ly/3vfRgKA at no extra charge.[CC]
OREGON: Settles Class Action Over Black Oregonians Pandemic Aid
---------------------------------------------------------------
Jamie Goldberg, writing for Oregonlive.com (TNS), reports that the
state of Oregon has agreed to a settlement with the Mexican
American owner of a prominent downtown Portland coffee shop who
challenged the constitutionality of the state's novel $62 million
coronavirus relief fund for Black Oregonians.
The settlement brings an end to the legal challenges against the
Oregon Cares Fund. The terms of the settlement were not immediately
disclosed.
Maria Garcia, the owner of Revolución Coffee in downtown Portland,
sued the state and organizers of the fund last November, contending
that the fund unconstitutionally discriminated against her by
earmarking funds for a single race. Garcia said in court filings
that she had to close her coffee shop for three months after the
start of the pandemic in March 2020 and would have qualified for
relief from the Oregon Cares Fund if she were Black.
Last December, the state deposited $46,853.65 with the court in
response to a preliminary injunction request from Garcia's lawyers.
The amount represented the maximum grant that Garcia would have
been eligible for through the fund if she were Black.
"As there were no funds left in this program there wasn't anything
to do but settle this case," said Garcia in a statement provided by
the Center for Individual Rights, which represented her in the
case. "We will challenge any future efforts by Oregon to divide its
citizens by race, which hopefully, everyone now understands is both
unfair and illegal."
The settlement comes seven months after the state settled a
separate class action lawsuit brought by John Day logging company
Great Northern Resources on behalf of non-Black individuals and
businesses who applied for support through the fund.
As part of that settlement, Oregon agreed to use state money to pay
grants to up to 1,252 non-Black applicants that sought funding
through the program before Dec. 8, 2020. The state set aside $3.5
million from its risk fund, which is used to cover damages awarded
in settlements, to pay the grants.
The state also agreed to pay Great Northern Resources up to
$230,000, depending on the cost of attorney fees.
The Oregon Cares Fund distributed $49.5 million to Black
individuals, Black-owned businesses and Black-led nonprofits last
year before agreeing to suspend operations amid the ongoing legal
challenges. The March settlement with Great Northern Resources
allowed Oregon to continue awarding grants to Black Oregonians with
the remainder of money left in the fund. [GN]
PARADE INC: Bunting Files ADA Suit in E.D. New York
---------------------------------------------------
A class action lawsuit has been filed against Parade Inc. The case
is styled as Rasheta Bunting, individually and as the
representative of a class of similarly situated persons v. Parade
Inc., Case No. 1:21-cv-05674-EK-CLP (E.D.N.Y., Oct. 12, 2021).
The lawsuit is brought over alleged violation of the Americans with
Disabilities Act.
Parade -- https://yourparade.com/ -- is an underwear company that
creates designer and eco-friendly fabrics undergarments.[BN]
The Plaintiff is represented by:
Dan Shaked, Esq.
SHAKED LAW GROUP, P.C.
14 Harwood Court, Suite 415
Scarsdale, NY 10583
Phone: (917) 373-9128
Email: shakedlawgroup@gmail.com
PERMANENT GENERAL: Connor Must File Class Cert. Bid by Dec. 11
--------------------------------------------------------------
In the class action lawsuit captioned as DORINE L. CONNOR, and
MYRTLE E. PUGH, individually and on behalf of all others similarly
situated, v. PERMANENT GENERAL ASSURANCE CORP., Case No.
9:20-cv-81979-WPD (S.D. Fla.), the Hon. Judge William P.
Dimitrouleas entered an order:
1. granting the Parties' joint motion to extend deadline for
Plaintiff's class certification motion, filed on October
4, 2021; and
2. extending the deadline for Plaintiff to file her motion
for class certification to December 11, 2021;
Permanent General provides insurance services.
A copy of the Court's order dated Oct. 5, 2021 is available from
PacerMonitor.com at https://bit.ly/3DC2f3N at no extra charge.[CC]
PFIZER INC: Edwards Files Suit in E.D. Pennsylvania
---------------------------------------------------
A class action lawsuit has been filed against Pfizer Inc. The case
is styled as Albert Edwards, individually, and on behalf of all
others similarly situated v. Pfizer Inc., Case No.
2:21-cv-04275-GEKP (E.D. Pa., Sept. 29, 2021).
The nature of suit is stated as Other Fraud.
Pfizer Inc. -- https://www.pfizer.com/ -- is an American
multinational pharmaceutical and biotechnology corporation
headquartered on 42nd Street in Manhattan, New York City.[BN]
The Plaintiff is represented by:
Ruben Honik, Esq.
HONIK LLC
1515 Market St., Ste. 1100
Philadelphia, PA 19102
Phone: (267) 435-1300
Email: ruben@honiklaw.com
PLAINS ALL: Morr Suit Loses Bid for Class Certification
-------------------------------------------------------
In the class action lawsuit captioned as CHERYL MORR and DAVID
MEDLOCK, On Behalf of Themselves and All Others Similarly Situated,
v. PLAINS ALL AMERICAN PIPELINE, L.P., and PLAINS PIPELINE L.P.,
Case No. 3:17-cv-00163-SMY (S.D. Ill.), the Hon. Judge Staci M.
Yandle entered an order denying the Plaintiffs' motion for class
certification of:
"All owners or lessees of residential properties in the
Pocahontas, Grant Fork, and Highland Illinois communities,
from July 10, 2015 to present;"
Excluded from this proposed class are: (1) Defendants, any
entity or division in which Defendants have a controlling
interest, and their legal representatives, officers,
directors, employees, assigns and successors; (2) the
judge(s) to whom this case is assigned, the judge's staff,
and any member of the judge's family."
The Court said, "The Plaintiffs maintain the proposed class
includes 4,400 properties based on an estimate of how many
residential properties are in the communities of Highland,
Pocahontas, and Grant Fork. However, given the overbroad class
definition and the lack of evidence that the spill affected the
proposed class area, the Plaintiffs' numerosity argument fails. The
evidence shows that only 11 residential properties are located
along the spill pathway with unresolved claims and the Plaintiffs
provide no evidence that joinder is impracticable for the absent
class member property owners. Rule 23(b). Because Plaintiffs have
failed to fully satisfy the requirements of Rule 23(a), the Court
need not address whether under Rule 23(b)(3) common issues of law
and fact predominate over individualized issue or whether a class
action is superior to other vehicles available for adjudicating
this controversy."
The Plaintiffs filed the instant putative class action against the
Defendants asserting claims under the Oil Pollution Act, 33 U.S.C.
sections 2701, et seq. and state law claims for negligence,
nuisance, and trespass arising from an oil spill that occurred on
July 10, 2015.
This case arises from a July 10, 2015 spill of approximately 100
barrels of crude oil from a failed tubing fitting at Plains'
Pocahontas Pump Station. The Pump Station is located approximately
2.6 miles west of Pocahontas, Illinois and 6 miles northeast of the
residential areas of Highland, Illinois.
Following the spill, approximately 56 barrels were recovered as a
result of Plains' cleanup efforts. The spill response and cleanup
were overseen by regulators including, the U.S. Environmental
Protection Agency (USEPA), Illinois Environmental Protection Agency
(IEPA), and the City of Highland.
The Pump Station is surrounded by rural land. The pathway of the
spill stayed confined in a ditch leading away from the Pump
Station, a tributary into which the ditch fed, and Silver Creek.
The Release physically touched approximately 19 residential
properties along the banks of a creek that widened behind a dam to
form Silver Lake further downstream.
Plains All is a master limited partnership engaged in pipeline
transport, marketing, and storage of liquefied petroleum gas and
petroleum in the United States and Canada.
A copy of the Court's order dated Oct. 5, 2021 is available from
PacerMonitor.com at https://bit.ly/3oYEQFF at no extra charge.[CC]
PNC BANK: Sued Over Mortgage Forbearance Mandate Non-Compliance
---------------------------------------------------------------
Enza G. Boderone and Philip R. Stein, writing for Financial
Services Watch, report that millions of homeowners have signed up
for a forbearance under the CARES Act, which gives homeowners with
a federally-backed mortgage loan the right to obtain a temporary
reduction or suspension of mortgage payments by way of a
forbearance. During the forbearance period, the financial
institution cannot charge fees, penalties, or interest beyond the
amounts included as part of the homeowners' regular monthly
mortgage payments. A new putative class action asserts that one
bank, however, is doing just that.
PNC Bank customers recently filed a class action against the bank
in federal court in Maryland concerning the bank's handling of
forbearances granted pursuant to a Fannie Mae COVID-19 payment
deferral agreement. The plaintiffs accused the bank of breaching
its deferral agreements, which provided homeowners extra time to
make mortgage payments during the pandemic.
According to the plaintiffs, the bank agreed to bring their
mortgages current and delay any repayment obligation for missed
monthly mortgage payments without the borrowers accruing any
interest or penalties. Customers would not be responsible for
past-due amounts until the earlier of the maturity date of the
mortgage, sale of the mortgaged property, or the payoff or
refinance of the mortgage loan. The plaintiffs allege that the bank
breached its agreement by adding the total past due payments to the
outstanding principal balance on the loan, effectively
double-charging the plaintiffs and improperly increasing the amount
of their mortgages. The plaintiffs also claim violations of the
Truth-In-Lending Act, alleging that mortgage statements PNC sent to
its customers included inaccurate principal balances and did not
disclose the existence of prepayment penalties for deferred amounts
paid off early. Further, the plaintiffs allege violation of the
Maryland Consumer Protection Act, which prohibits unfair and
deceptive trade practices in the extension of consumer credit
and/or collection of consumer debts. The putative class alleges,
among other things, that PNC misrepresented the application of the
deferred payments and failed to disclose additional interest
charges. The class representatives, in their individual capacities,
also assert a claim for violation of the Real Estate Settlement
Practices Act ("RESPA") based on the bank's alleged failure to
appropriately respond to the plaintiffs' written notices about
their mortgage account.
The lawsuit seeks declaratory and injunctive relief, actual
damages, restitution, and statutory damages under the Fair Lending
statutes, and also request that their attorneys' fees be assessed
against the bank.
There has been a great deal of focus since the COVID-19 pandemic
began on forbearance requirements. There has been less scrutiny to
date in courts on whether financial institutions are heeding the
specific details of the mandated forbearance periods. The putative
class action filed against PNC may herald a coming wave of legal
actions asserting non-compliance with those key details. [GN]
POPULUS FINANCIAL: Barragan Wage-and-Hour Suit Goes to C.D. Cal.
----------------------------------------------------------------
The case styled NUVIA BARRAGAN, ITZEL LEGORRETA-CRUZALTA, JAVIER
RAMIREZ, and DAMALI URBINAFAJARDO, individually and on behalf of
all others similarly situated v. POPULUS FINANCIAL GROUP, INC. DBA
ACE CASH EXPRESS, INC. and DOES 1 through 100, inclusive, Case No.
21STCV31256, was removed from the Superior Court of the State of
California, County of Los Angeles, to the U.S. District Court for
the Central District of California on October 7, 2021.
The Clerk of Court for the Central District of California assigned
Case No. 2:21-cv-08021 to the proceeding.
The case arises from the Defendant's alleged violations of the
California Labor Code and the California Business and Professions
Code including failure to provide required meal periods, failure to
provide required rest periods, failure to pay overtime wages,
failure to pay minimum wages, failure to timely pay wages during
employment, failure to pay all wages due to discharged and quitting
employees, failure to maintain required records, failure to furnish
accurate itemized wage statements, failure to indemnify employees
for necessary expenditures incurred in discharge of duties, and
unfair and unlawful business practices.
Populus Financial Group, Inc., doing business as Ace Cash Express,
Inc., is a financial services company based in Irving, Texas. [BN]
The Defendant is represented by:
Elizabeth A. Brown, Esq.
Amanda Bolliger, Esq.
Jasmine S. Horton, Esq.
Matthew W. Morris, Esq.
GBG LLP
633 West 5th Street, Suite 3330
Los Angeles, CA 90071
Telephone: (213) 358-2810
Facsimile: (213) 995-6382
E-mail: lisabrown@gbgllp.com
amandabolliger@gbgllp.com
jasminehorton@gbgllp.com
matthewmorris@gbgllp.com
PROBABLE CAUSE DIRECTOR: Smith Loses Bid for Class Certification
----------------------------------------------------------------
In the class action lawsuit captioned as DERRICK LEE SMITH,
Petitioner, v. PROBABLE CAUSE CONFERENCE DIRECTOR ET AL.,
Respondents, Case No. 1:21-cv-00794-SJB (W.D. Mich.), the Hon.
Judge Sally J. Berens entered an order:
1. denying the Petitioner's request for class certification;
and
2. denying certificate of appealability.
A copy of the Court's order dated Oct. 5, 2021 is available from
PacerMonitor.com at https://bit.ly/3v7qofw at no extra charge.[CC]
PROGRESSIVE MOUNTAIN: Brown Files Suit in N.D. Georgia
------------------------------------------------------
A class action lawsuit has been filed against Progressive Mountain
Insurance Company, et al. The case is styled as Keddrick Brown,
individually and on behalf of a class of similarly situated persons
as defined herein v. Progressive Mountain Insurance Company,
Mitchell International, Inc., Case No. 3:21-cv-00175-TCB (N.D. Ga.,
Oct. 11, 2021).
The nature of suit is stated as Insurance for Insurance Contract.
Progressive Casualty Insurance Company --
https://www.progressive.com/ -- operates as an insurance firm. The
Company offers auto, homeowners, renters, motorcycle, boat, life,
and health insurance services.[BN]
The Plaintiff is represented by:
A. Danielle McBride, Esq.
LOBER & DOBSON, LLC
830 Mulberry Street, Suite 201
Macon, GA 31201
Phone: (478) 745-7700
Fax: (478) 745-4888
Email: admcbride@lddlawyers.com
- and -
Michael Jordan Lober, Esq.
LOBER & DOBSON, LLC
1197 Canton Street
Roswell, GA 30075
Phone: (770) 741-0700
Email: mjlober@lddlawyers.com
- and -
Robert Brent Irby, Esq.
MCCALLUM, HOAGLUND, COOK & IRBY, LLP
905 Montgomery Highway, Suite 201
Vestavia Hills, AL 35216
Phone: (205) 824-7767
Fax: (205) 824-7768
Email: birby@mhcilaw.com
- and -
William Gregory Dobson, Esq.
WILLIAM GREGORY DOBSON PC
1040 Fort Stephenson Road
Lookout Mountain, GA 30750
Phone: (478) 745-7700
Fax: (478) 745-4888
Email: wgd@lddlawyers.com
QUALCOMM INC: Averts Cellular Chip Licensing Class Action
---------------------------------------------------------
Jeffrey J. Amato, Esq., Ian L. Papendick, Esq., Dana L.
Cook-Milligan, Esq., and Patrick S. Opdyke, Esq., of Winston &
Strawn LLP, disclosed that Qualcomm Inc. has won another battle in
the fight over its alleged monopoly of modem chips used in cell
phones. On September 29, 2021, the Ninth Circuit vacated the
district court's class certification order and remanded the matter
for reconsideration. Stromberg v. Qualcomm Inc., No. 19-15159, 2021
WL 4448713 (9th Cir. Sept. 29, 2021). The panel unanimously held
that the district court's choice of law analysis was faulty, and
that it erred in certifying a Rule 23(b)(3) damages class because
the differences between relevant state laws meant that common
issues of law did not predominate in the class as certified. Id. at
*5-11. As to the Rule 23(b)(2) injunctive class, the Ninth Circuit
vacated the certification order in light of its FTC v. Qualcomm
decision, 969 F.3d 974 (9th Cir. 2020), and asked the district
court on remand to first address the effect of that decision,
particularly on the classes' ability to meet the Rule 23(a)
threshold requirements and the viability of plaintiffs' claims with
the appellate court's additional guidance. Id. at *11-12. For a
more detailed discussion of the Ninth Circuit's FTC v. Qualcomm
decision, see Winston & Strawn's Competition Corner Post here.
Plaintiffs' attorneys, in antitrust cases and in general, often
seek to certify a nationwide class under the state law where the
case is filed. The Ninth Circuit's decision is a clear statement
that nationwide classes are inappropriate when there are material
differences between states' laws that are not accounted for as part
of a rigorous choice of law analysis. Time will tell how
plaintiffs' attorneys will adjust their class certification
strategy, but defendants are now armed with significant precedent
to defend against nationwide class certification, especially in the
Ninth Circuit.
Qualcomm's Business Model and Litigation History
Qualcomm is a global leader in cellular technology that, as
relevant here, licenses standard essential patents (SEPs) for
cellular communication technologies, including for 3G and LTE.
Stromberg v. Qualcomm, Inc., No. 19-15159, 2021 WL 4448713 (9th
Cir. Sept. 29, 2021). SEPs are "standard essential" because any
entity that wishes to practice the standard -- e.g., 3G -- must
license the relevant SEPs from their owners. Id. at *1. In exchange
for having their patents incorporated into a standard,
patent-holders like Qualcomm typically commit to licensing their
SEPs on fair, reasonable, and non-discriminatory (FRAND) terms. Id.
at *2.
At issue in the Stromberg litigation was Qualcomm's practice of
licensing its patents solely to cellphone original equipment
manufacturers (OEMs) rather than any upstream cellphone component
suppliers. For its SEPs, Qualcomm typically receives a royalty of
5% of the device's wholesale net selling price. Id. Qualcomm is
also the leading supplier of 3G and LTE modem chips -- products
which practice Qualcomm's cellular SEPs -- to OEMs, which OEMs then
incorporate into their cell phones devices, enabling them to
connect to cellular networks. Id. Qualcomm adopted a policy known
as "no license, no chips," under which it would not supply modem
chips to any customers unless they also licensed Qualcomm's SEPs.
Id. at *8.
In January 2017, the Federal Trade Commission sued Qualcomm in a
separate action, alleging that, through its "no license, no chips"
policy, Qualcomm engaged in unfair methods of competition in
violation of the Federal Trade Commission Act ("FTCA") and the
Sherman Act. Id. at *2. Consumers filed various follow-on actions
against Qualcomm, alleging similar issues and invoking federal and
state antitrust and consumer protection laws. The cases were
consolidated as a multi-district litigation before Judge Koh in the
Northern District of California, the same judge who presided over
the FTC matter. Id.
The plaintiffs in Stromberg are consumers who bought cell phones
that contain Qualcomm chips, making them indirect purchasers of
Qualcomm's products (with the OEMs being the direct purchasers).
Id. Supreme Court precedent typically bars indirect purchasers from
pursuing antitrust damages claims under federal law because they
are too far removed from a distribution chain. Illinois Brick Co.
v. Illinois, 431 U.S. 720 (1977). After the Illinois Brick
decision, many states -- currently 35 -- enacted what are known as
"repealer laws," which permit indirect purchasers to seek antitrust
damages under their states' laws. Stromberg, at *3. Thus, only
consumers who are citizens of a "repealer state" may join an
indirect purchaser class. Id. For a more in-depth discussion of
Illinois Brick, see Winston & Strawn's Competition Corner post
here.
The class plaintiffs alleged that Qualcomm maintains a monopoly in
chips by "(1) engaging in a 'no-license-no-chips' policy by which
Qualcomm sold chips only to OEMs that paid above-FRAND royalty
rates to license Qualcomm's SEPs; (2) refusing to license its SEPs
to rival chip suppliers; and (3) entering into exclusive dealing
arrangements with Apple that prevented rival chip suppliers from
competing with Qualcomm to supply Apple's chip demand." Id. The
plaintiffs sought injunctive and monetary relief under Section 1
(restraint of trade) and Section 2 (monopolization) of the Sherman
Act, as well as California's Cartwright Act and Unfair Competition
Law. Id.
The plaintiffs sought, and the district court certified, an
indirect purchaser class under Rule 23(b)(2) and (b)(3) consisting
of consumers who purchased 3G and LTE cell phones for their own
use. Id. at *3-4. In addition to Rule 23's other requirements, the
district court concluded that common questions predominate overall
and for antitrust violation, antitrust impact, and damages. Id. at
*3.
The district court also concluded that the plaintiffs could seek
damages on behalf of a nationwide class under California's
Cartwright Act, applying California's three-step governmental
interest test to determine whether any other state's law should
apply. Id. The district court determined that non-repealer states
have materially different law because they do not permit indirect
purchaser claims, but they likewise "have no interest in applying
their laws here because non-repealer laws disadvantage resident
consumers and are not intended to protect out-of-state businesses."
Id. The district court also certified an injunctive relief class
under Rule 23(b)(2), concluding that Qualcomm's allegedly
anticompetitive conduct generally applied to the whole class. Id.
at *4.
The class as certified was expected to include between 232.8 and
250 million people, and the "lower bound" of damages would be $4.84
billion. Id. at *3. Qualcomm sought interlocutory review under Rule
23(f), which the Ninth Circuit granted. The appellate court noted
in its decision to grant the interlocutory appeal that it issued
the FTC v. Qualcomm decision after this case was submitted, so it
directed the parties to file supplemental briefs to address the
effects of that decision. Id. at *4.
Ninth Circuit Vacates the Class Certification Order and Remands for
Reconsideration
Upon review, the Ninth Circuit concluded that the district court
had committed reversible error in certifying the Rule 23(b)(2) and
(b)(3) classes.
The Ninth Circuit concluded that the district court failed to
properly apply California's choice of law analysis, and found that
common issues of law did not predominate as required for a Rule
23(b)(3) to be certified. When a plaintiff brings state law claims,
federal courts apply the choice of law of the forum state --
California here -- and the Ninth Circuit reiterated that the
plaintiffs bore the initial burden of establishing that applying
California law is constitutional. Id. at *18-19. Under Ninth
Circuit precedent, "California law cannot apply to class claims if
the interests of other states outweigh California's interest." Id.
at *6; see also Mazza v. Am. Honda Motor Co., 666 F.3d 581, 588
(9th Cir. 2012). The Ninth Circuit applied Mazza, where the Ninth
Circuit established a three-step governmental interest test, which
looks at (1) whether there is a difference in the law from each
relevant state on the issues present; (2) if there is a difference,
whether a true conflict exists between the individual interests for
each state; and (3) if there is a true conflict, which state's
interest would be most impaired if its policy were subordinated
(the most impaired being the state whose law should then apply).
Stromberg, at *6.
As an initial step, the Ninth Circuit noted that the district court
had correctly concluded that "California has a constitutionally
sufficient aggregation of contacts to the claims of each class
member" because Qualcomm's primary place of business is in
California, the class includes California residents, and Qualcomm
made relevant business decisions in California. Id. But the Court
agreed with Qualcomm that the district court misapplied the
three-step governmental interest test, because:
The district court failed to address material differences between
the Cartwright Act and antitrust laws of other states: The Ninth
Circuit noted that there is no dispute that material differences
exist between California antitrust law and the antitrust laws of
other states, most significantly the non-repealer states. Id. But
the Court also concluded that the district court erred in
overlooking differences among repealer states. The specifics of the
repeal, who can sue for damages, and the amount or type of damages
varies between repealer states, and the district court's failure to
address these differences did not fulfill the first prong. Id.
The district court erred in concluding that other states have no
interest in applying their laws to the current dispute: On the
second prong, the Ninth Circuit noted that it "has not yet
addressed California choice of law analysis in the antitrust
context." at *7. But the Court applied prior decisions in the tort
context in Mazza and the labor context in Senne v. Kan. City Royals
Baseball Corp., 934 F.3d 918 (9th Cir. 2019). In both cases, the
Ninth Circuit considered the importance of preserving the federal
system under which states can make their own decisions about
permissible conduct within their borders. Id. at *7-8.
Applying the logic of those cases, the Ninth Circuit found that
"there is no basis for concluding that only California has an
interest." Id. at *9. Non-repealer states have an interest in both
harm to resident consumers and harm to competition and business
within their borders. And non-repealer states should be permitted
to make policy choices about what damages recovery is available to
residents within their borders, including a bar on indirect
purchaser recovery. Moreover, states have a real interest as the
"place of the wrong." Id. at *10. In failing to account for these
interests, the district court committed reversible error.
The district court failed to determine which states' interests
would be most impaired: Finally, because the district court
incorrectly held that only California had an interest in the
current dispute, it committed reversible error by not determining
which states' interests would be most impaired if their policies
were subordinated to California's law. at *10-11. As the appellate
court established in its discussion of the second prong,
non-repealer states have a strong interest in applying their own
laws to consumer purchases of cell phones in their states, so
applying California law nationwide improperly impaired non-repealer
state policy. Id. at *11. And even among repealer states there
exist differences in law, so the Ninth Circuit concluded that "it
is not clear that a single class of all repealer state Plaintiffs
could be certified under Rule 23(b)(3)." Id. The Court indicated
that the district court should address this question after
"reconducting its choice of law analysis starting at step one."
Id.
The Ninth Circuit also vacated the Rule 23(b)(2) class in light of
the FTC v. Qualcomm decision issued after the class certification
order, and did not reach the merits of Qualcomm's cohesiveness
argument. Qualcomm argued on appeal that the FTC decision "bars
Plaintiffs from showing, based on their liability theories, that
Qualcomm's conduct harmed competition in the relevant markets." Id.
The Ninth Circuit disagreed, noting that this is still an open
question because neither party had "adequately addressed" how the
decision would affect the class's ability to satisfy the Rule 23
class certification requirements. Id. But given the overlap between
the two cases, the FTC decision "likely has preclusive effect" for
many issues raised by the Stromberg plaintiffs. Id.
The Ninth Circuit ultimately concluded that the FTC decision "may
well warrant dismissal of Plaintiffs' claims," but that question
was not before the appellate court on the interlocutory appeal from
the class certification order. Id. at *12. The appellate court thus
vacated the Rule 23(b)(2) class in light of the FTC decision and
vacated the Rule 23(b)(3) class based on the district court's
erroneous application of choice of law analysis. Id. The Ninth
Circuit instructed that the district court should first determine
if the FTC decision "defeats the class on Rule 23(a) grounds" and
only if the class survives that analysis should the district court
determine the effect of the FTC decision and a correct choice of
law analysis. Id. [GN]
R&S MOBILE HOME: McCorkle Sues Over Unpaid Minimum, Overtime Wages
------------------------------------------------------------------
Clayton McCorkle, individually and on behalf of all others
similarly situated v. R&S MOBILE HOME SERVICE, INC., and ROY
PHILPOT, Case No. 4:21-cv-00921-BRW (E.D. Ark., Oct. 12, 2021), is
brought against the Defendant for violations of the minimum wage
and overtime provisions of the Fair Labor Standards Act, and the
minimum wage and overtime provisions of the Arkansas Minimum Wage
Act.
The Plaintiff and other General Laborers regularly worked in excess
of forty hours per week throughout their tenure with Defendant. The
Plaintiff and other General Laborers did not receive an overtime
premium for hours worked over forty each week. In some weeks, the
Plaintiff and other General Laborers worked so many hours that
their constructive hourly rate fell below the statutory minimum
wage. Because of the volume of work required to perform their jobs,
the Plaintiff and other General Laborers consistently worked in
excess of forty hours per week. The Defendant knew, or showed
reckless disregard for, whether the way it paid the Plaintiff and
other General Laborers violated the FLSA and AMWA, says the
complaint.
The Plaintiff was employed by the Defendant as a General Laborer
from April of 2021 until August of 2021.
The Defendant's primary business is transportation of and
installation of mobile homes.[BN]
The Plaintiff is represented by:
Josh Sanford, Esq.
Colby Qualls, Esq.
SANFORD LAW FIRM PLLC
Kirkpatrick Plaza
10800 Financial Centre Pkwy, Suite 510
Little Rock, AR 72211
Phone: (501) 221-0088
Fax: (888) 787-2040
Email: josh@sanfordlawfirm.com
colby@sanfordlawfirm.com
RCD RESTORATIONS: Huertero Sues Over Unpaid Minimum, Overtime Wages
-------------------------------------------------------------------
Francisco Huertero, on behalf of himself, FLSA Collective
Plaintiffs, and the class v. RCD RESTORATIONS, INC., and JOSEPH
CAGGIANO, Case No. 1:21-cv-08419 (S.D.N.Y. Oct. 12, 2021), is
brought pursuant to the Fair Labor Standards Act and the New York
Labor Law, that he is entitled to recover from the Defendants:
unpaid minimum wage, unpaid overtime, unpaid wages, including
overtime, due to time shaving, statutory penalties, liquidated
damages, and attorneys' fees and costs.
The Plaintiff did not receive any overtime compensation, despite
working over 40 hours. FLSA Collective Plaintiffs and Class
Members similarly did not receive any overtime compensation. The
Defendants knowingly and willfully operated their business with a
policy of not paying the proper overtime rate for hours worked in
excess of 40 hours in each workweek, including due to time shaving,
to Plaintiff, FLSA Collective Plaintiffs and Class Members, says
the complaint.
The Plaintiff was hired by Defendants to work as a construction and
scaffold worker at the Defendant's construction site.
The Defendants own and operate a construction company located in
Bronx, New York.[BN]
The Plaintiff is represented by:
C.K. Lee, Esq.
Anne Seelig, Esq.
LEE LITIGATION GROUP, PLLC
148 West 24th Street, Eighth Floor
New York, NY 10011
Phone: 212-465-1180
Fax: 212-465-1181
RECKITT BENCKISER: Loses Bid to Strike Submissions in Williams Suit
-------------------------------------------------------------------
In the case, DAVID WILLIAMS, et al., Plaintiffs v. RECKITT
BENCKISER LLC, et al., Defendants, Case No.
20-23564-CIV-COOKE/GOODMAN (S.D. Fla.), Judge Marcia G. Cooke of
the U.S. District Court for the Southern District of Florida, Miami
Division, denies the Defendants' Motion to Strike.
In this putative class action lawsuit, the Defendants are seeking
to strike the submissions of Theodore H. Frank and Truth in
Advertising, Inc. ("TINA").
Background
In the putative class action lawsuit, Judge Cooke previously
entered an Order preliminarily approving the class action
settlement. As part of that Order, the Final Approval Hearing was
scheduled for Aug. 17, 2021. The Order also provided that the Class
Members could object, in writing, provided they did so no later
than July 27, 2021.
On July 26, 2021, TINA filed an unopposed motion for leave to file
an amicus brief in opposition to the proposed settlement. Judge
Cooke granted TINA's unopposed request. On July 26, 2021, Frank
filed a Notice of Objection to the proposed settlement.
Soon after these filings, on Aug. 10, 2021, the Defendants filed a
"Motion to Strike the Submissions of Theodore H. Frank and Truth in
Advertising, Inc." TINA quickly filed a response and the Defendants
filed a reply.
Before Mr. Frank responded to the Defendants' Motion to Strike,
Judge Cooke held a nearly three-hour fairness hearing on Aug. 17,
2021, which was attended by the Defendants, the Plaintiffs, Frank,
and TINA. Immediately following the fairness hearing, the
Defendants, based on representations made by Frank's attorney,
filed a Notice of Withdrawal of Section I of Defendants' Motion to
Strike (which the Defendants identify as pages 3-11).
Mr. Frank filed his response to the Defendants' motion, which was
accompanied by two affidavits clarifying the statements made by his
attorney at the Aug. 17, 2021 fairness hearing. The Defendants
filed a reply, indicating, in part, their Case 1:20-cv-23564-MGC
Document 123 Entered on FLSD Docket 09/29/2021 Page 3 of 14
displeasure with the clarifications, but still "maintaining the
integrity of their prior withdrawal" and "consenting to the Court
deciding the Article III standing issue without relying on or
considering their arguments on that point."
Analysis
The Defendants' argument can be divided into two categories: (1)
Neither TINA nor Frank have Article III standing; and (2) The Court
should not credit TINA's or Frank's submissions because their logic
is flawed and, despite their contentions, the proposed settlement
is fair. Similarly, Defendants also request relief in alternative
terms. Despite being styled as a motion to strike, Defendants, in
their first motion, conclude by requesting that the Court
"disregard" TINA's and Frank's submissions, and, in their reply to
Frank, conclude by requesting the Court "either strike or overrule"
Frank's submission.
Judge Cooke addresses only the Defendants' request to strike TINA's
and Frank's submissions (i.e., not even consider the submissions in
any capacity regardless of merit). To the extent that the
Defendants seek to have the Undersigned overrule the submissions or
determine the submissions lack an evidentiary foundation, those
substance-based rulings will be made in a separate Order evaluating
the motions to approve the settlement agreement and/or amended
settlement agreement.
a. TINA's Submission
TINA is a non-partisan, non-profit organization which claims its
mission is to Case 1:20-cv-23564-MGC Document 123 Entered on FLSD
Docket 09/29/2021 Page 5 of 14 "combat the systemic and individual
harms caused by deceptive marketing." The organization regularly
participates as amicus curiae at the district and appellate level.
TINA, at its request, was granted permission to participate as
amicus curiae in this litigation. The Defendants now seek to strike
TINA's submission.
Judge Cooke holds that other than the single inapplicable case
cited by the Defendants, they have presented no authority holding
that TINA needs Article III standing to file an amicus brief.
Indeed, the available authority points towards the opposite
conclusion. Given the frequency of amicus appearances in the
highest echelons of litigation, Judge Cooke is not inclined to
adopt the unique position that each potential amici must
demonstrate Article III standing so that a filing might be
considered. Accordingly, she denies the Defendants' request to
strike TINA's submission due to lack of standing.
b. Frank's Submission
Mr. Frank is associated with the Center for Class Action Fairness
("CCAF"), an organization that often represents class action
objectors at both the district court and appellate levels. In the
case, Frank is not appearing as an attorney representing an
objector, but as an actual objector based on a claim that he
qualifies as a Class Member.
Judge Cooke previously granted the Plaintiffs' Unopposed Motion for
Preliminary Approval of Class Action Settlement and for
Certification of the Settlement Class. In that Order, she
preliminarily certified the following nationwide Settlement Class:
"All persons who purchased for personal consumption and not for
resale, one or more of the Neuriva Products (Neuriva Original,
Neuriva Plus, or Neuriva De-Stress), from Defendants or an
authorized reseller, in the United States, between the dates of
January 1, 2019 and the date of Preliminary Approval of the
Settlement by the Court April 23, 2021."
Further, Judge Cooke allowed the Class Members until July 27, 2021
to file objections to the settlement.
On July 26, 2021, Frank filed his objection to the proposed
settlement.
Judge Cooke looks only to whether Frank qualifies as an objector
under the Undersigned's Order granting Preliminary Approval. She
finds that the Defendants have not made any argument that Frank
falls outside the Class Member definition. Nor have they put forth
evidence that Frank did not comply with the requirements objectors
must satisfy when filing an objection (e.g., timing or contents of
objections). Judge Cooke has also not Case 1:20-cv-23564-MGC
Document 123 Entered on FLSD Docket 09/29/2021 Page 10 of 14 found
any deficiencies in Frank's status as a member of the Settlement
Class nor in the contents of his objection. Accordingly, she denies
the Defendants' motion to strike Frank's submission.
Because the Defendants have withdrawn their arguments seeking to
attack Frank's Article III standing, Judge Cooke need not issue a
ruling definitively determining which category of objector Frank
and his organization fall within in the case. In her view, the
frequency with which Frank pursues objections (as either an
objector himself, personally, or, through the CCAF, as counsel for
an objector) is not, in and of itself, a reason to condemn him or
his organization.
Conclusion
Accordingly, based on the foregoing reasons, Judge Cooke denies the
Defendants' Motion to Strike TINA's and Frank's submissions. She
will discuss the merits of their objections/positions in a
later-issued substantive Report and Recommendations concerning the
motion to approve the amended class action settlement.
A full-text copy of the Court's Sept. 29, 2021 Order is available
at https://tinyurl.com/c83c5b73 from Leagle.com.
RESURGENT CAPITAL: Pruitt Files FDCPA Suit in D. Maryland
---------------------------------------------------------
A class action lawsuit has been filed against Resurgent Capital
Services L.P., et al. The case is styled as Yorel Pruitt, and on
behalf of all others similarly situated v. Resurgent Capital
Services L.P., LVNV Funding LLC, John Does 1-25, Case No.
1:21-cv-02615-JMC (D. Md., Oct. 12, 2021).
The lawsuit is brought over alleged violation of the Fair Debt
Collection Practices Act.
Resurgent Capital Services -- https://www.resurgent.com/ --
provides financial services. The Company manages debt portfolios
for credit grantors and debt buyers.[BN]
The Plaintiff is represented by:
Aryeh E. Stein, Esq.
MERIDIAN LAW, LLC
600 Reisterstown Road, Suite 700
Baltimore, MD 21208
Phone: (443) 326-6011
Fax: (410) 653-1061
Email: astein@meridianlawfirm.com
RITZ-CARLTON HOTEL: Opposition to Class Cert. Bid Due October 25
----------------------------------------------------------------
In the class action lawsuit captioned as MICHAEL FOX v. THE
RITZ-CARLTON HOTEL COMPANY, LLC, Case No. 1:17-cv-24284-MGC (S.D.
Fla.), the Hon. Judge Marcia G. Cooke entered a post-conference
administrative order as follows:
1. Defendant's opposition to the motion for class
certification is due on or before October 25, 2021.
2. Defendant shall have no more than an additional ten pages
for its opposition.
3. Plaintiff's reply in support of the motion for class
certification is due on or before November 11, 2021.
4. Plaintiff shall have no more than an additional five pages
for his reply.
Ritz-Carlton Hotel is an American multinational company that
operates the luxury hotel chain known as The Ritz-Carlton.
A copy of the Court's order dated Oct. 6, 2021 is available from
PacerMonitor.com at https://bit.ly/3mRUiAR at no extra charge.[CC]
RUTHERFORD COUNTY, TN: Juvenile Justice System Probe Published
--------------------------------------------------------------
Adam Tamburin, writing for Yahoo News, reports that WPLN and
ProPublica on Oct. 8 published a joint investigation into
Rutherford County's juvenile justice system.
The sweeping piece, which is getting national attention, includes a
detailed examination of the controversial 2016 arrests of
elementary students on a criminal charge that doesn't actually
exist.
Why it matters: Rutherford County's approach to juvenile justice
has faced scrutiny for years. The new investigation profiles the
2016 arrests and the adults behind the system, and shows how many
of them have escaped serious consequences.
The investigation included 2014 data showing Rutherford County
locked up kids in 48% of its juvenile court cases. The statewide
average was 5%.
Background: The county in June agreed to pay up to $11 million to
settle a class action lawsuit alleging more than 1,000 children had
been illegally incarcerated.
As much as $7.75 million will go to children who were arrested or
incarcerated under Rutherford County policies. [GN]
SALLY BEAUTY: Alonzo Sues Over Blind-Inaccessible Website
---------------------------------------------------------
Thuy Thanh Alonzo, individually and on behalf of all others
similarly situated v. SALLY BEAUTY SUPPLY LLC, a Virginia limited
liability company; and DOES 1 to 10, inclusive, Case No.
2:21-cv-07826-FLA-GJS (C.D. Cal., Sept. 30, 2021), is brought to
secure redress against the Defendants for its failure to design,
construct, maintain, and operate its website to be fully and
equally accessible to and independently usable by Plaintiff and
other blind or visually impaired people.
The Defendant's denial of full and equal access to its website, and
therefore denial of its products and services offered thereby and
in conjunction with its physical location, is a violation of the
Plaintiff's rights under the Americans with Disabilities Act and
California's Unruh Civil Rights Act. Because the Defendant's
website, https://www.sallybeauty.com/, is not fully or equally
accessible to blind and visually-impaired consumers in violation of
the ADA, the Plaintiff seeks a permanent injunction to cause a
change in the Defendant's corporate policies, practices, and
procedures so that the Defendant's website will become and remain
accessible to blind and visually impaired consumers, says the
complaint.
The Plaintiff is a visually impaired and legally blind person who
requires screen-reading software to read website content using his
computer.
The Defendant's website provides consumers access to "the largest
assortment of the best beauty products on the planet."[BN]
The Plaintiff is represented by:
Thiago Coelho, Esq.
Jasmine Behroozan, Esq.
Binyamin I. Manoucheri, Esq.
WILSHIRE LAW FIRM
3055 Wilshire Blvd., 12th Floor
Los Angeles, CA 90010
Phone: (213) 381-9988
Facsimile: (213) 381-9989
Email: thiago@whilshirelawfirm.com
jamine@wilshirelawfirm.com
binyamin@wilshirelawfirm.com
SEARS HOME: Appliance Warranty Complaints Lead to Class-Action
--------------------------------------------------------------
Todd Ulrich at WFTV.com reports that a local woman paid thousands
of dollars for an appliance repair warranty over the past 15
years.
When the well-known service failed to fix her refrigerator for two
months, she called Action 9 for results.
Pat Keefer is using a borrowed refrigerator belonging to someone
from her church because the freezer on her Kenmore refrigerator
failed eight weeks ago.
Keefer has a Sears Home Services warranty, so she thought the
repair was covered.
"You were paying for appliance protection. At the end of the day,
did you get it?" Todd Ulrich asked.
"No, not so far," Keefer replied.
Keefer contacted Action 9 claiming Sears was slow to respond, and
says the only repair that was made, failed to fix her freezer.
Two months later, she still can't use the refrigerator.
"They said, 'Well your parts were hard to get, and you know techs
are short because of COVID-19,'" Keefer explained.
She said she's been paying for a Sears appliance warranty for at
least 10 years and she paid more than $400 for the latest premium.
Nationwide, Sears has more than 2,600 complaints at the Better
Business Bureau, with most involving failed repairs. The company is
rated A-plus for responding to those complaints.
There's a class-action lawsuit against Sears Home Services that was
started by an Illinois couple. They claim they didn't get the
repair protection they paid for.
The lawsuit claims Sears was in breach of contract and involved in
deceptive trade by selling appliance warranties the company failed
to fully honor.
Consumer experts say that with any warranty, be prepared to stand
up for the coverage you paid for.
"Make sure that you stay on the timeline, because in the end, you
want to make sure that you aren't the reason they declined
coverage," BBB president Holly Salmons said.
Ulrich contacted corporate managers at Sears about Keefer's
complaint, and on that same day, Sears said she would be getting a
new replacement refrigerator and $400 to cover food losses. The
company claims they had already planned to assist Keefer in this
way.
Keefer said she had not heard about Sears' intended assistance,
prior to Ulrich's conversation with them.
"Were you ever able to talk to a supervisor?" Ulrich asked.
"No," Keefer replied.
Warranties sold in Florida are a type of insurance, so you can send
claim complaints to Florida's Department of Financial Services.
SEARS response:
"At Sears, the satisfaction of our members and customers is our top
priority. We value Ms. Keefer as a customer and we had already
authorized her for a replacement (although she apparently did not
get our email advising her of such due to email issues she was
experiencing).When we provided her with the information along with
updates on the models that were available, we were able to schedule
her replacement refrigerator for delivery on Oct. 11. In addition
to the replacement, she was unaware that she had already been
provided with the maximum allotment of $200.00 in food loss
reimbursement that was sent out as a check and we provided another
$200.00 as a courtesy that she should receive about a week after
she receives the other." [GN]
SIMM ASSOCIATES: Jones FDCPA Suit Removed to D. New Jersey
----------------------------------------------------------
The case styled as Amber Jones, on behalf of herself and those
similarly situated v. SIMM Associates, Inc., John Does 1 TO 10,
Case No. ESX-L-006355-21 was removed from the Superior Court of
Essex County, NJ, to the United States District Court for the
District of New Jersey on Sept. 29, 2021.
The District Court Clerk assigned Case No. 2:21-cv-17759-MCA-LDW to
the proceeding.
The lawsuit is brought over alleged violation of the Fair Debt
Collection Practices Act.
SIMM Associates -- https://www.simmassociates.com/ -- are Accounts
Receivable Management Specialists working with creditors to recover
outstanding consumer credit accounts.[BN]
The Plaintiff is represented by:
Yongmoon Kim, Esq.
KIM LAW FIRM, LLC
411 Hackensack Ave Ste 701
Hackensack, NJ 07601
Phone: (201) 273-7117
Fax: (201) 273-7117
Email: ykim@kimlf.com
The Defendant is represented by:
Graeme E. Hogan, Esq.
Richard J. Perr, Esq.
KAUFMAN DOLOWICH & VOLUCK, LLP
Four Penn Center
1600 John F. Kennedy Blvd., Suite 1030
Philadelphia, PA 19103
Phone: (484) 841-7109
Fax: (215) 405-2973
Email: asettle@kdvlaw.com
SK FOODS: Four In One's Bid for Cy Pres Fund Distribution Granted
-----------------------------------------------------------------
In the lawsuits styled Four In One Company, Inc., et al.,
Plaintiffs v. SK Foods, L.P., et al., Defendants. Diversified Foods
and Seasoning, Inc., et al., Plaintiffs v. SK Foods, L.P., et al.,
Defendants. Bruce Foods Corporation, et al., Plaintiffs v. SK
Foods, L.P., et al., Defendants Cliffstar Corporation., et al.,
Plaintiffs v. SK Foods, L.P., et al., Defendants, Case Nos.
2:08-cv-3017 KJM JDP, 2:08-cv-03074-KJM-JDP, 2:09-cv-00027-KJM-JDP,
2:09-cv-00442 KJM JDP (E.D. Cal.), the U.S. District Court for the
Eastern District of California grants the Plaintiffs' motion for cy
pres distribution of the remaining $8,766 class funds.
Plaintiffs Four in One Company, Inc., Bruce Foods Corporation,
Cliffstar Corporation and Diversified Foods & Seasonings, Inc. are
food product manufacturers that purchased processed tomato products
from Defendants SK Foods L.P., Ingomar Packing Company, Los Gatos
Tomato Products, Scott Salyer, Stuart Woolf and Greg Pruett.
The Plaintiffs move for cy pres distribution of the remaining class
funds, $8,766.85, to the Institute for Consumer Antitrust Studies
at Loyola University Chicago School of Law (ICAS/Loyola) and
dismissal of the action. The Defendants did not file an opposition,
and the Court submitted the matter without a hearing.
Background
In 2009, another judge of this Court issued an order consolidating
these four captioned cases. The Plaintiffs then filed a
consolidated complaint alleging the Defendants violated federal
antitrust laws by conspiring to raise and fix the prices of a
variety of processed tomato products. In January 2014, the Court
granted provisional certification of the settlement class and
preliminarily approved class settlement. Eight months later, the
Court granted the Plaintiffs' motion for final approval of the
class settlement as to Defendants Ingomar, Pruett, Woolf and Los
Gatos. The class has received all funds from those settlements and
the Court entered final judgment against them.
The actions against SK Foods, L.P. and Scott Salyer remained
pending due to an ongoing bankruptcy action in the United States
Bankruptcy Court for the Eastern District of California. On Nov.
20, 2020, the Chapter 11 Trustee for SK Foods filed a motion for
approval of a distribution of unclaimed funds after the final
distribution and entry of a final decree and closure of the
bankruptcy case, which the Bankruptcy Court granted on Dec. 30,
2020.
Before closure of the bankruptcy case, in April 2015, class members
began to receive pro rata shares from the distribution of these
Defendants' funds culminating recently with the final distribution
in January 2021. Even more recently, the Plaintiffs were advised
that $8,766.85 in uncashed checks remained in the class funds
account.
The Plaintiffs now move to resolve the pending claims against
remaining Defendants SK Foods, L. P, and Scott Salyer given the
completion of the distribution of the class funds and termination
of the bankruptcy action. The Plaintiffs move to disburse the
remaining funds to their proposed cy pres designee, ICAS.
Additionally, the Plaintiffs move to dismiss the actions against
remaining Defendants SK Foods, L.P. and Scott Salyer. The
Defendants do not oppose the motions.
Analysis
The Court finds that ICAS/Loyola's advocacy efforts align with the
nature of the Plaintiffs' lawsuit and the consumer protection
objectives of the Sherman Act, 15 U.S.C. Section 1. The Plaintiffs
alleged the Defendants violated Section 1 of the Sherman Act by
conspiring "to fix prices, allocate customers, and rig bids for
Processed Tomato Products, including tomato paste and diced
tomatoes."
The Plaintiffs propose ICAS/Loyola as cy pres designee "because of
its work on behalf of consumers in the area of antitrust law to
protect the rights of individuals from the types of predatory
behavior underlying the lawsuit." ICAS/Loyola is a "non-sectarian
charitable organization" and "non-partisan, independent academic
center that advocates for a more just, competitive, and
consumer-friendly economy."
Silent class members' interests will reasonably be benefitted by
the distribution to ICAS/Loyola. The Plaintiffs argue that
ICAS/Loyola reflects the interests of the silent class members
because it has a nationwide reach sufficient to justify receipt of
the cy pres award. The Court agrees. ICAS/Loyola works on behalf of
people such as the class members in this case, who were consumers
of commodities that were the subject of price-fixing agreements
subject to antitrust liability.
Chief District Judge Kimberly J. Mueller notes that university
programs may be appropriate designees when the focus of the program
aligns with the interests of a nationwide class, citing In re
Easysaver Rewards Litigation, 906 F.3d at 761-62. Likewise,
ICAS/Loyola's research on creating a more just economy will benefit
the silent, nationwide class impacted by alleged price fixing.
Therefore, the organization is an appropriate cy pres designee due
to the nexus between the class interests and the designee's
interest.
The Plaintiffs also request dismissal of the action against the
remaining Defendants, SK Foods, L.P. and Scott Salyer, under
Federal Rule Civil Procedure 41(a)(2). Given the conclusion of the
bankruptcy proceedings against these Defendants, the Court grants
this motion.
Conclusion
The motions are granted as follows:
(1) The court grants the disbursement of the remaining class
funds in the amount of $8,766.85 to the appropriate cy
pres designee, the Institute for Consumer Antitrust
Studies at Loyola University Chicago School of Law; and
(2) The court dismisses on the merits and with prejudice the
remaining causes of action against SK Foods, L.P. and
Scott Salyer.
This order resolves ECF No. 313. This case is closed.
A full-text copy of the Court's Order dated Sept. 30, 2021, is
available at https://tinyurl.com/2kepcknj from Leagle.com.
SKYWEST INC: N.D. California Certifies Four Classes in Meek Suit
----------------------------------------------------------------
In the case, CODY MEEK, Plaintiff v. SKYWEST, INC., et al.,
Defendants, Case No. 17-cv-01012-JD (N.D. Cal.), Judge James Donato
of the U.S. District Court for the Northern District of California
grants in part the Plaintiffs' motion for class certification.
Named Plaintiffs Cody Meek, Jeremy Barnes, and Coryell Ross moved
for class certification of their employment claims under California
state law against SkyWest, Inc. and SkyWest Airlines, Inc.
Background
The Plaintiffs propose a class of "all individuals currently or
formerly employed by the Defendants SkyWest Airlines, Inc. and
SkyWest, Inc. ('SkyWest') as Frontline Employees who worked on the
ground and were paid on an hourly basis ('Frontline Employees') for
at least one shift in the State of California at any time from Feb.
27, 2013 through Oct. 18, 2020."
The Plaintiffs request certification of the class for their Counts
I (grace period claim), II (meal and rest break claims), III (shift
trade overtime claim), V and VI (derivative claims), and VII (San
Francisco QSP minimum wage claim).
Summary judgment was granted for the Defendants on the Plaintiffs'
Counts III and VII, so those counts are now moot for class
certification purposes. Consequently, the claims for possible
certification consist of Counts I (grace period claim), II (meal
and rest break claims), and V and VI (derivative claims).
For these claims, the Plaintiffs allege that SkyWest "paid its
Frontline Employees according to their scheduled hours even though
they were under SkyWest's control and expected to be prepared to
work from punch-in to punch-out"; and "failed to provide
uninterrupted and timely meal and rest periods in the manner
required by the California Labor Code," and "failed to pay
statutory premium wages when the meal and rest breaks were
untimely, missed, or interrupted."
Discussion
The standards governing class certification are well established.
The overall goal is "to select the method best suited to
adjudication of the controversy fairly and efficiently." The
Plaintiffs must show that their proposed classes satisfy all four
requirements of Rule 23(a), and at least one of the subsections of
Rule 23(b). They have elected to proceed under Rule 23(b)(3) only.
The Plaintiffs, as the parties seeking certification, bear the
burden of showing that the requirements of Rule 23 are met for each
of their proposed classes.
The Court's class certification analysis "must be rigorous and may
entail some overlap with the merits of the Plaintiff's underlying
claim," though the merits questions may be considered to the
extent, and only to the extent, that they are "relevant to
determining whether the Rule 23 prerequisites for class
certification are satisfied." The class certification procedure is
decidedly not an alternative form of summary judgment or an
occasion to hold a mini-trial on the merits. The decision of
whether to certify a class is entrusted to the sound discretion of
the district court.
A. Numerosity (23(a)(1))
The Plaintiffs state, with evidentiary support, that "over 1700
Frontline Employees worked for SkyWest during the Class Period."
SkyWest does not contest numerosity. This element is satisfied,
Judge Donato finds.
B. Typicality and Adequacy (23(a)(3)-(4))
The named Plaintiffs say typicality is satisfied because "all the
Plaintiffs held the same position, performed the same duties, and
were subjected to the same work rules and pay practices as all
other members of the Class." SkyWest challenges typicality on the
ground that the Plaintiffs "were only ever ramp agents," while the
proposed class "includes 12 formal job classifications, some of
which -- like the label 'Ramp Agent' -- are further subdivided into
special roles like 'Commissary Agent,' 'Tow Team,' 'Baggage
Agents,' and others." In SkyWest's view, the Plaintiffs have shown
only that "their claims and the bases for them are typical of other
ramp agents at SFO, LAX, and ONT."
Judge Donato holds that SkyWest has not identified a "substantive
issue for which there is a conflict of interest between" agents and
supervisors. He says, the question whether employees at different
levels of the internal hierarchy have potentially conflicting
interests is context-specific and depends upon the particular
claims alleged in a case.
C. Commonality (23(a)(2)) and Predominance (23(b)(3))
Judge Donato finds it appropriate to assess commonality and
predominance in tandem, with a careful eye toward ensuring that the
specific requirements of each are fully satisfied.
1. Count I: Grace Period Claim
For this claim, the Plaintiffs seek certification on behalf of all
Frontline Employees who "were unpaid for all time from punch-in to
punch-out as a result of SkyWest's uniform policy of paying wages
according to employees' scheduled hours. They challenge the first
part of that policy. They take issue with the fact that "although
SkyWest's payroll system permits employees to punch-in up to five
minutes early," it "will only pay to Frontline Employees' scheduled
hours -- not their actual punch records."
Judge Donato holds that commonality is lacking where, as in the
case, "there is nothing to unite all of the plaintiffs' claims." He
says, the record also shows that the correct inquiry -- whether the
Frontline Employees were "in fact working" and/or were "under
SkyWest's control during the grace period" -- is one that is not
capable of classwide resolution "in one stroke." The Plaintiffs
cannot also satisfy commonality by proposing to apply to SkyWest's
grace period policy a rounding policy analysis.
2. Count II: Meal Period and Rest Break Claims
The Plaintiffs allege that Frontline Employees missed meal periods
and rest breaks without compensation as required by law. The
Defendants contest commonality and predominance for these claims.
First, Judge Donato finds that the Plaintiffs have demonstrated
commonality and predominance for the meal period claim. The
Plaintiffs have established commonality in that the class members
"have suffered the same injury." Predominance is also satisfied.
"Nearly all of the evidence in the record," including SkyWest's
employee declarations about its "actual business practices,"
support a finding that common issues of law and fact would
predominate over any individual issues.
Second, Judge Donato holds that the Plaintiffs have established
commonality for the rest break claims in that the class members
"have suffered the same injury." The record supports the finding
that there was a "common pattern and practice that could affect the
class as a whole," in that class members were deprived of rest
breaks and were not paid the premiums to which they were legally
entitled. Predominance is also satisfied. The evidence before the
Court, including SkyWest's employee declarations about its "actual
business practices," supports a finding that common questions would
predominate over individual ones.
3. Counts V & VI: Derivative Claims
The Plaintiffs seek certification of a "derivative claims" class
"arising from: (1) the failure to pay all wages due and owing at
the time of termination that entitled Frontline Employees to
waiting time penalties consisting of up to 30 days of wages under
Cal. Lab. Code Sections 201, 202, and 203; and (2) certification of
a claim under California's Unfair Competition Law ('UCL'), Bus. &
Prof. Code Sections 17200 et seq., which entitles aggrieved
employees to obtain a four-year look back on the statute of
limitations applicable to their claims."
Because these claims are derivative, the parties treated the
question of certification as derivative. Judge Donato finds that
the derivative claims may be certified without further analysis to
the extent they rely on the certified meal period and rest breaks
claim.
D. Superiority (23(b)(3))
The Plaintiffs say that in employment cases like these, "the
alternative to a class case is often no case at all," and "the
individual damages are often too small to merit individual
actions." SkyWest has not challenged superiority, and Judge Donato
finds this factor satisfied.
II. Administrative Motion to Seal
The Plaintiffs filed a motion to provisionally seal portions of
their certification motion and an attachment to the Breshears
declaration, because SkyWest had designated certain underlying
documents as "Confidential" under the protective order in the
case.
Judge Donato finds that SkyWest has not come forward with a
designating party's responsive declaration as required under Civil
Local Rule 79-5(e) to maintain the sealing. Consequently, sealing
is denied. The Plaintiffs are directed to file unredacted copies of
the documents on the ECF docket by no earlier than four days, and
no later than 10 days, from the date of the Order.
Conclusion
Judge Donato certifies the following classes:
1) All individuals currently or formerly employed by SkyWest
Airlines, Inc. and SkyWest, Inc. as Frontline Employees who worked
on the ground and were paid on an hourly basis for at least one
shift in the State of California at any time from Feb. 27, 2013,
through Oct. 18, 2020, who:
a. (1) worked for more than five hours during at
least one shift and did not receive a meal period that began before
the end of the fifth hour of work, and/or worked for more than ten
hours on a shift and did not receive a second meal period that
began before the end of the tenth hour of work; (2) had a meal
period shortened less than the 30 minutes required; and/or (3) had
an untimely meal period delayed after the fifth hour or tenth hour
of work; and
b. did not receive from SkyWest missed meal break
premium wages as required by Cal. Wage Order 9-2001 Section
11(A)-(B), and Cal. Lab. Code Sections 226.7(c) and 512.
2) All individuals currently or formerly employed by SkyWest
Airlines, Inc. and SkyWest, Inc. as Frontline Employees who worked
on the ground and were paid on an hourly basis for at least one
shift in the State of California at any time from Feb. 27, 2013,
through Oct. 18, 2020, who:
a. (1) did not receive at least ten minutes of rest
time for each four hours of work in violation of Cal. Wage Order
9-2001 Section 12(A); (2) had a rest period shortened from the ten
minutes required; and/or (3) had an untimely rest period that was
delayed so that the rest period was not taken near the middle of
each four-hour block of the employee's shift; and
b. did not receive from SkyWest one hour of
compensation for each workday that the rest period was not provided
as required by Cal. Wage Order 9-2001 Section 12(B), and Cal. Lab.
Code Sections 226.7(c).
3) All individuals formerly employed by SkyWest Airlines,
Inc. and SkyWest, Inc. as Frontline Employees who worked on the
ground and were paid on an hourly basis for at least one shift in
the State of California at any time from Feb. 27, 2013, through
Oct. 18, 2020, who were subject to a meal or rest break violation
for which they did not receive statutory premium wages and who
consequently did not receive all wages due and owing at the time of
termination.
4) All individuals currently or formerly employed by SkyWest
Airlines, Inc. and SkyWest, Inc. as Frontline Employees who worked
on the ground and were paid on an hourly basis for at least one
shift in the State of California at any time from Feb. 27, 2013,
through Oct. 18, 2020, who were subject to a meal or rest break
violation for which they did not receive statutory premium wages
and who on that basis assert a violation of the Unfair Competition
Law, Bus. & Prof. Code Sections 17200 et seq.
Plaintiffs Cody Meek, Jeremy Barnes, and Coryell Ross are appointed
class representatives, and their counsel at Greg Coleman Law PC,
Simmons Hanly Conroy LLC, and Kaplan Fox & Kilsheimer LLP are
appointed class counsel.
The Plaintiffs are ordered to submit by Oct. 29, 2021, a proposed
plan for dissemination of notice to the classes. They will meet and
confer with SkyWest at least 10 days in advance of submitting the
plan so that the proposal can be submitted on a joint basis to the
fullest extent possible.
The parties are directed again to contact Magistrate Judge Hixson
for a further settlement conference.
A full-text copy of the Court's Sept. 29, 2021 Order is available
at https://tinyurl.com/pjmc4j85 from Leagle.com.
SOCLEAN INC: Landers Product Liability Suit Removed to E.D. Ark.
----------------------------------------------------------------
The case styled STEVE LANDERS, SR., individually and on behalf of
all others similarly situated v. SOCLEAN, INC., Case No.
60CV-21-5528, was removed from the Circuit Court of Pulaski County,
Arkansas, to the U.S. District Court for the Eastern District of
Arkansas on October 12, 2021.
The Clerk of Court for the Eastern District of Arkansas assigned
Case No. 4:21-cv-00919-BSM to the proceeding.
The case arises from the Defendant's alleged breach of express
warranty, breach of implied warranty of merchantability, fraudulent
misrepresentation, fraud by omission, negligent misrepresentation,
unjust enrichment, failure to warn, and medical monitoring by
engaging in false advertising and failing to warn consumers about
the adverse health effects of its product used to clean continuous
positive airway pressure (CPAP) machines.
SoClean, Inc. is a manufacturer of cleaning devices, with its
principal place of business in New Hampshire. [BN]
The Defendant is represented by:
Gary D. Marts, Jr., Esq.
Eric Berger, Esq.
Laura E. Cox, Esq.
WRIGHT, LINDSEY & JENNINGS LLP
200 West Capitol Avenue, Suite 2300
Little Rock, AR 72201-3699
Telephone: (501) 371-0808
Facsimile: (501) 376-9442
E-mail: gmarts@wlj.com
eberger@wlj.com
lcox@wlj.com
SOUTHPOINT FINANCIAL: Nitschke Sues Over Unlawful Overdraft Fees
----------------------------------------------------------------
Victoria Nitschke, individually, and on behalf of all others
similarly situated v. SOUTHPOINT FINANCIAL CREDIT UNION, and DOES 1
through 5, inclusive, Case No. 0:21-cv-02237-NEB-ECW (D. Minn.,
Oct. 11, 2021), is brought on behalf of SPFCU's members, on the
basis that SPFCU has violated and continues to violate, Federal
Reserve Regulation E and the Minnesota Consumer Fraud Act with
regards to the Defendants' unlawful assessing and unilaterally
collection overdraft fees.
The Plaintiff has brought this class and representative action to
assert claims in her own right and as the class representative of
all other persons similarly situated. Regulation E requires SPFCU
to obtain informed consent, by way of a written stand-alone
document that fully complies with Regulation E and accurately
describes in an easily understandable way its overdraft services,
before charging members an overdraft fee on one-time debit card
and/or ATM transactions. Because of the substantial harm to
customers caused by large overdraft fees on relatively small debit
card and ATM transactions, Regulation E requires financial
institutions to put all mandated overdraft information in one clear
and easily understood document. Financial institutions are not
permitted to circumvent this requirement by referencing, or relying
on, their account agreements, disclosures, or marketing materials.
SPFCU does not meet these requirements. It does not provide its
members with a compliant stand-alone Regulation E opt-in disclosure
agreement because, inter alia, it fails to accurately and in an
easily understandable manner describe its overdraft services
including, but not limited to, failing to state or clearly describe
its overdraft procedures within the four corners of the opt-in
agreement. It also improperly encourages members to opt-in to
Regulation E overdraft coverage, and includes additional
information not permitted. SPFCU's failure to accurately describe
its overdraft practices and its use of improper tactics designed to
encourage or even "trick" members into signing up for its overdraft
service, shows its disregard for Regulation E's basic purpose which
is to protect consumers by ensuring all of their overdraft service
options are disclosed in a fair manner so they can make an informed
decision when deciding whether or not to opt into overdraft
coverage for Regulation E- covered transactions.
The Plaintiff has been harmed by SPFCU's Regulation E violations.
She was opted-in with a disclosure agreement that used inaccurate
and misleading (or at least an ambiguous) description of SPFCU's
overdraft practices that did not explain the overdraft services in
a clear and easily understandable manner. Plaintiff has been
assessed overdraft fees on one-time debit card and/or ATM
transactions (including at least one transaction that she would not
have received an overdraft fee on using the actual balance, but was
assessed an overdraft fee using the available balance) that were
not permitted because SPFCU obtained Plaintiff's "consent" using
the non-compliant opt-in disclosure agreement. This action seeks
statutory and actual damages, restitution, costs, attorneys' fees,
and injunctive relief due to, inter alia, SPFCU's policy and
practice of obtaining "affirmative consent" using a noncompliant
opt-in disclosure agreement and unlawfully assessing and
unilaterally collecting overdraft fees, says the complaint.
The Plaintiff is a resident of New Ulm, Minnesota, and an SPFCU
member.
SPFCU is a credit union with its headquarters and principal place
of business in Sleepy Eye, Minnesota.[BN]
The Plaintiff is represented by:
Joseph A. Larson, Esq.
JOSEPH A. LARSON LAW FIRM PLLC
310 Fourth Ave. S., Suite 5010
Minneapolis, MN 55415
Phone: (612) 206-3704
Facsimile: (612) 284-8716
- and -
Richard D. McCune, Esq.
David C. Wright, Esq.
MCCUNEWRIGHT AREVALO LLP
3281 Guasti Road, Suite 100
Ontario, CA 91761
Phone: (909) 557-1250
Facsimile: (909) 557-1275
Email: rdm@mccunewright.com
dcw@mccunewright.com
- and -
Emily J. Kirk, Esq.
McCUNE WRIGHT AREVALO, LLP
231 N. Main Street, Suite 20
Edwardsville, IL 62025
Phone: (618) 307-6116
Facsimile: (618) 307-6161
Email: ejk@mccunewright.com
STATE COLLECTION: Vela FDCPA Suit Removed to N.D. Illinois
----------------------------------------------------------
The case styled as Ashley Vela, on behalf of herself and all others
similarly situated v. State Collection Service, Inc., Case No.
2021CH03960 was removed from the Cook County Circuit Court, County
Dept. Chancery to the United States District Court for the Northern
District of Illinois on Sept. 30, 2021.
The District Court Clerk assigned Case No. 1:21-cv-05175 to the
proceeding.
The lawsuit is brought over alleged violation of the Fair Debt
Collection Practices Act.
State Collection Service -- https://www.statecollectionservice.com/
-- is a financial services company providing debt collection and
financial services.[BN]
The Plaintiff is represented by:
Celetha Chatman, Esq.
Michael Wood, Esq.
COMMUNITY LAWYERS, LLC
980 N. Michigan Ave., Suite 1400
Chicago, IL 60611
Phone: (312) 757-1880
Email: cchatman@communitylawyersgroup.com
mdelossantos@younessilaw.com
- and -
Michael William Drew, Esq.
NEIGHBORHOOD LEGAL, LLC
20 N. Clark, Ste. 3300
Chicago, IL 60602
Phone: (312) 967-7220
Email: mwd@neighborhood-legal.com
The Defendant is represented by:
Patrick Allen Watts, Esq.
150 S Wacker Drive, Suite 2400
Chicago, IL 60606
Phone: (312) 725-8267
Email: pwatts@swattslaw.com
STATE FARM: Geist Insurance Contract Suit Goes to E.D. Pennsylvania
-------------------------------------------------------------------
The case styled MIRANDA GEIST, individually and on behalf of all
others similarly situated v. STATE FARM MUTUAL AUTOMOBILE INSURANCE
COMPANY, was removed from the Court of Common Pleas, Philadelphia
County, Pennsylvania, to the U.S. District Court for the Eastern
District of Pennsylvania on October 8, 2021.
The Clerk of Court for the Eastern District of Pennsylvania
assigned Case No. 2:21-cv-04447 to the proceeding.
The case arises from the Defendant's refusal to provide the
Plaintiff's claim of up to $200,000 in stacked underinsured
motorist (UIM) coverage in connection with the serious and
permanent injuries she sustained in a motor vehicle accident on
September 16, 2017.
State Farm Mutual Automobile Insurance Company is an insurance
company, headquartered in Bloomington, Illinois. [BN]
The Defendant is represented by:
John J. McGrath, Esq.
PALMER & BARR, P.C.
1880 John F. Kennedy Blvd., Suite 401
Philadelphia, PA 19103
Telephone: (215) 557-0222
E-mail: john.mcgrath@palmerbarr.com
- and –
Joseph A. Cancila, Jr., Esq.
Sondra A. Hemeryck, Esq.
RILEY SAFER HOLMES & CANCILA LLP
70 West Madison Street, Suite 2900
Chicago, IL 60602
Telephone: (312) 471-8700
E-mail: jcancila@rshc-law.com
shemeryck@rshc-law.com
STATE FARM: Pete Must File Class Status Bid by Jan. 3, 2022
-----------------------------------------------------------
In the class action lawsuit captioned as EILEEN PETE, on behalf of
herself and all others similarly situated v. STATE FARM MUTUAL
AUTOMOBILE INSURANCE COMPANY, Case No. 4:21-cv-00056-KGB (E.D.
Ark.), the Hon. Judge Kristine G. Baker entered an order granting
parties' joint motion for relief from the deadline for filing a
motion for class certification and response:
-- Pete shall file her motion for class certification on or
before January 3, 2022, and
-- State Farm shall file any response to the motion 28 days
from the filing of the motion.
The Court said, "Because State Farm's time for filing a response to
Ms. Pete's motion for class certification is after the trial date
set forth in the Court's initial scheduling order, the Court
continues the January 10, 2022, trial and all of the unexpired
pre-trial deadlines set forth in the Court's initial scheduling
Order. The Court acknowledges that the parties have requested a
hearing before the Court enters a final scheduling order. The Court
will schedule a status conference with the parties by separate
order."
The plaintiff Eileen Pete, on behalf of herself and all others
similarly situated, and defendant State Farm filed second joint
motion for relief from deadline for filing motion for class
certification and response. The parties seek relief from an October
1, 2021, deadline for filing a motion for class certification and
an October 29, 2021, deadline for responding to the motion for
class certification that the Court set in an Order dated June 17,
2021.
A copy of the Court's order dated Oct. 5, 2021 is available from
PacerMonitor.com at https://bit.ly/3oZQ5NX at no extra charge.[CC]
STEWART ENTERPRISES: Litigation Team Prevails in Fiduciary Lawsuit
------------------------------------------------------------------
Troutman Pepper successfully represented Frank B. Stewart, the
former chairman of Stewart Enterprises Inc. (STEI), prevailing in a
class action lawsuit. The suit spanned eight years and three courts
in Louisiana, filed on the heels of an announcement that STEI, once
the second largest publicly traded death care company in the
country, would be acquired by its largest competitor, Service
Corp., Inc. (SCI).
In 2013, SCI announced its intention to acquire Stewart Enterprises
for $1.4 billion. Shortly after the deal was announced, plaintiffs'
class action lawyers filed suit in the Civil District, Orleans
Parish, claiming proxy violations and breaches of fiduciary duty by
Mr. Stewart and other members of the STEI board. In a joint effort
with allied defense counsel based in New Orleans, Troutman Pepper
attorneys defeated the motion for a preliminary injunction. The
stockholders approved the merger and the deal closed in 2014,
following an extensive review by the Federal Trade Commission and
divestiture requirements.
"The case proceeded through completion of discovery, including
experts," said Partner Pamela Palmer, who together with Partner
Kevin Crisp, defended Mr. Stewart in the litigation. "Despite
attempts by the plaintiffs to position Mr. Stewart as being on
'both sides of the deal,' the facts showed that he was not." Palmer
said. A special committee of the board negotiated the deal and Mr.
Stewart, who was not a member and did not participate in the
negotiation, voted for the merger at the special committee's
recommendation, even though he held a potential blocking vote.
On the eve of trial in the Civil District, Orleans Parish, the
defendants moved successfully for summary judgment. The trial court
mastered business judgment rule principles and rejected the
unfounded claims against Mr. Stewart. The defendants triumphed
again in the Fourth Circuit Court of Appeal of Louisiana, which
issued a unanimous opinion affirming summary judgment in May 2021.
Plaintiffs' counsel sought a writ of review by the Supreme Court of
Louisiana, which was denied unanimously on October 1, 2021.
Troutman Pepper's Business Litigation Practice Group has a long,
successful track record defending and prosecuting high-stakes
commercial matters in federal, state, trial, and appellate courts
throughout the United States. The firm is experienced in litigating
complex multi-district cases, class actions, and single-case
litigations.
About Troutman Pepper
Troutman Pepper is a national law firm with more than 1,200
attorneys strategically located in 23 U.S. cities. The firm's
litigation, transactional, and regulatory practices advise a
diverse client base, from start-ups to multinational enterprises.
The firm provides sophisticated legal solutions to clients' most
pressing business challenges, with depth across industry sectors,
including construction, energy, finance, health sciences,
insurance, private equity, real estate, and technology, among
others. Learn more at troutman.com. [GN]
STRADA SERVICES: Reyes Seeks Reconsideration of Cert. Denial
------------------------------------------------------------
In the class action lawsuit captioned as RICHARD REYES,
individually and On behalf of all others similarly situated, v.
STRADA SERVICES INC. d/b/a Strada Electric and Security, Case No.
8:21-cv-00976-VMC-TGW (M.D. Fla.), the Plaintiff asks the Court to
enter an order to reconsider the Court's Order Denying the
Plaintiff's Motion for Conditional Certification and consider newly
discovered evidence (specifically the deposition testimony of
Defendant's Corporate Representative) which clarifies and
unequivocally demonstrates that the Plaintiffs are similarly
situated for conditional certification purposes under the Fair
Labor Standards Act (the FLSA).
The Court denied Plaintiffs' motion for conditional certification
on grounds that the Plaintiffs were not similarly situated. The
Court found that the Plaintiffs are not similarly situated because
A.) Plaintiffs had different methods of pay; and B.) Plaintiffs
used different methods for recording hours worked. In so finding,
the Court misapprehended the facts alleged in this matter, and was
confused by Defendant's submitted declaration(s).
But as the newly acquired Strada Corporate Representative
Deposition makes abundantly clear, 98.3% of installers were paid on
a piece-rate basis; and 100% of piece-rate installers recorded
their time on paper timesheets. This new evidence alleviates the
Court's concerns over individualized inquiries while proceeding
collectively on behalf of piece-rate installers.
The newly acquired evidence requires the Court to reconsider/rehear
Plaintiffs' Motion for Conditional Certification to prevent
manifest injustice and to promote judicial economy. If the Court
does not reconsider the motion, the remaining Party Plaintiffs will
be forced to file individual suits which will likely be referred to
this Court to avoid inconsistent rulings. Accordingly, this Court
should reconsider its Order on Plaintiffs' Motion for Conditional
Certification, or in the alternative allow the Opt-In Plaintiffs to
remain in this matter through the conclusion of discovery with the
ability to move for class certification under a heightened
standard, the lawsuit says.
Every Plaintiff here has declared they were subjected to a de facto
policy against reporting more than 40 hours and discouraged from
reporting more than 40 hours in week, but in fact worked routinely
more than 40 hours with the knowledge of Defendant, the suit adds.
Strada Electric is doing business in the home services industry.
A copy of the Plaintiff's motion to certify class dated Oct. 6,
2021 is available from PacerMonitor.com at https://bit.ly/3p589Gr
at no extra charge.[CC]
The Plaintiff is represented by:
Benjamin Lee Williams, Esq.
WILLIAMS LAW P.A.
464 Sturdivant Avenue
Atlantic Beach, FL 32233
Telephone: (904) 580-6060
Facsimile: (904) 417-7494
E-mail: bwilliams@williamslawjax.com
- and -
Mitchell L. Feldman, Esq.
FELDMAN LEGAL GROUP
6940 W. Linebaugh Avenue, Suite 101
Tampa, FL 33625
Telephone: 813-639-9366
Facsimile: 813-639-9376
E-mail: mlf@feldmanlegal.us
STRIVETIN OPERATING: Locklin Sues Over Deceptive Sunscreen Labeling
-------------------------------------------------------------------
Martin Locklin, individually and on behalf of all others similarly
situated v. StriVetin Operating Co., Inc., Case No. 3:21-cv-07967
(N.D. Cal., Oct. 11, 2021), arises from the Defendant's unfair
competitive advantage in the billion-dollar sunscreen market. The
Defendant is exposing consumers and the environment to harmful
chemical active ingredients in their sunscreens by falsely labeling
them as "REEF SAFE."
According to the complaint, the Defendant has reaped millions of
dollars through this fraudulent scheme based on a calculated
business decision to put profits over people and the environment.
Specifically, the Defendant deceptively labels certain of its
StriVectin brand sun care Products as "REEF SAFE" deliberately
leading reasonable consumers, including the Plaintiff, to believe
that the Products only contain ingredients that are reef-safe and
otherwise cannot harm reefs, including the coral reefs and marine
life that inhabits or depends on them.
The Challenged Representation has misled reasonable consumers,
including the Plaintiff, into believing that the Products only
contain ingredients that are reef-safe or otherwise cannot harm
reefs, including the coral reefs and the marine life that inhabits
or depends on them. However, contrary to this labeling, the
Products actually contain Harmful Ingredients (including
avobenzone, homoslate, octisalate, and/or octocrylene), which are
chemical ingredients that are not safe for reefs because they can
harm and/or kill reefs, including the coral reefs and the marine
life that inhabits or depends on them.
Through falsely, misleadingly, and deceptively labeling the
Products, the Defendant sought to take advantage of consumers'
desire for sunscreens that are safe for reefs (coral reefs and
marine life and related ecosystems that inhabit or depend on coral
reefs), while reaping the financial benefits of using less
desirable, harmful, and/or less costly chemicals in the Products.
The Defendant has done so at the expense of unwitting consumers, as
well as the Defendant's lawfully acting competitors, over whom the
Defendant maintains an unfair competitive advantage, says the
complaint.
The Plaintiff purchased the StriVectin Sunscreen from the
Defendant.
The Defendant manufactures, markets, advertises, labels, packages,
and sells the Products.[BN]
The Plaintiff is represented by:
Ryan J. Clarkson, Esq.
Shireen M. Clarkson, Esq.
Katherine A. Bruce, Esq.
Kelsey J. Elling, Esq.
CLARKSON LAW FIRM, P.C.
22525 Pacific Coast Highway
Malibu, CA 90265
Phone: (213) 788-4050
Fax: (213) 788-4070
Email: rclarkson@clarksonlawfirm.com
sclarkson@clarksonlawfirm.com
kbruce@clarksonlawfirm.com
kelling@clarksonlawfirm.com
TAKEDA PHARMACEUTICAL: Ct. Extends Class Certification Schedule
---------------------------------------------------------------
In the class action lawsuit captioned as PAINTERS AND ALLIED TRADES
DISTRICT COUNCIL 82 HEALTH CARE FUND, a third-party healthcare
payor fund, ANNIE M. SNYDER, a California consumer, RICKEY D. ROSE,
a Missouri consumer, JOHN CARDARELLI, a New Jersey consumer,
MARLYON K. BUCKNER, a Florida consumer, and SYLVIE BIGORD, a
Massachusetts consumer, on behalf of themselves and ALL others
similarly situated, v. TAKEDA PHARMACEUTICAL COMPANY LIMITED, a
Japanese corporation; TAKEDA PHARMACEUTICALS USA, Inc., an Illinois
corporation (fka TAKEDA PHARMACEUTICALS NORTH AMERICA, Inc.); and
ELI LILLY & COMPANY, an Indiana corporation, Case No.
2:17-cv-07223-JWH-AS (C.D. Cal.), the Hon. Judge John W. Holcomb
entered an order vacating the schedule governing the parties'
briefing and the hearing on Plaintiffs' class certification motion
and the parties' anticipated accompanying Daubert motions, and
extending the Class Certification Schedule as follows:
-- November 19, 2021 Deadline for filing Plaintiffs'
Reply in Support of Class
Certification; any response to
Defendants' Daubert motions; and any
Daubert motions related to
Defendants' class certification
experts
-- December 17, 2021 Deadline for filing Defendants'
Reply in Support of any Daubert
Motions; and any response to
Plaintiffs' Daubert motions
-- December 23, 2021 Deadline for filing Plaintiffs'
Reply in Support of any
Daubert motions
-- January 14, 2022, Hearing date for Plaintiff's
at 9:00 a.m. Motion for Class Certification and
any Daubert Motions
Takeda Pharmaceutical is a Japanese multinational pharmaceutical
company, with American and British roots. It is the largest
pharmaceutical company in Asia and one of the top 20 largest
pharmaceutical companies in the world by revenue.
A copy of the Court's order dated Oct. 6, 2021 is available from
PacerMonitor.com at https://bit.ly/2YT1tAA at no extra charge.[CC]
TALOS ENERGY: Delaware Court Grants Bids to Toss Patel v. Duncan
----------------------------------------------------------------
Judge Morgan T. Zurn of the Court of Chancery of Delaware grants
the Defendants' motions to dismiss the lawsuit entitled
VRAJESHKUMAR PATEL, individually and on behalf of all others
similarly situated, and derivatively on behalf of Nominal Defendant
TALOS ENERGY INC., Plaintiff v. TIMOTHY S. DUNCAN, NEAL P. GOLDMAN,
CHRISTINE HOMMES, JOHN "BRAD" JUNEAU, DONALD R. KENDALL, JR., RAJEN
MAHAGAOKAR, CHARLES M. SLEDGE, ROBERT M. TICHIO, JAMES M. TRIMBLE,
OLIVIA C. WASSENAAR, RIVERSTONE HOLDINGS, LLC, RIVERSTONE TALOS
ENERGY EQUITYCO LLC, RIVERSTONE TALOS ENERGY DEBTCO LLC, APOLLO
GLOBAL MANAGEMENT, INC., APOLLO TALOS HOLDINGS, L.P., AP TALOS
ENERGY DEBTCO LLC, and GUGGENHEIM SECURITIES, LLC, Defendants, and
TALOS ENERGY INC., Nominal Defendant, Case No. 2020-0418-MTZ (Del.
Ch.).
Background
In February 2020, an oil and gas company purchased a set of
oil-producing assets from an affiliate of one of its private equity
sponsors. The Plaintiff in this action, one of the Company's public
stockholders, challenges the fairness of that transaction. He
alleges the Company's financial advisor gave a flawed fairness
opinion, severely undervaluing the Company while significantly
overvaluing the assets it purchased. The advisor had done business
with affiliates of a second private equity sponsor. Based on the
advisor's discrepant opinion, the Company overpaid for the assets
and, because the transaction involved issuing and transferring
stock to the sellers, unfairly diluted the Company's minority
stockholders.
The Plaintiff/stockholder challenges the transaction as manifestly
unfair. He starts with the advisor's flawed opinion and works
backwards, alleging the transaction must have been effectuated by
the two private equity sponsors as a control group.
The Verified Stockholder Derivative and Class Action Complaint (the
"Complaint") in this action challenges Nominal Defendant Talos
Energy Inc.'s ("Talos" or the "Company") February 28, 2020,
purchase of certain oil-producing assets (the "Challenged
Transaction"). Plaintiff Vrajeshkumar Patel ("Plaintiff") was a
Talos stockholder at all relevant times, and purports to bring his
claims derivatively and on behalf of Talos's other similarly
situated public stockholders.
In 2012, Defendant Timothy S. Duncan formed the Company's
predecessor, Talos Energy LLC ("Old Talos"). From its inception,
Old Talos was backed by funds affiliated with Defendants Riverstone
Holdings, LLC, ("Riverstone Parent") and Apollo Global Management,
Inc. ("Apollo Parent"). Riverstone Parent invested in Old Talos
through Defendants Riverstone Talos Energy Equityco LLC and
Riverstone Talos Energy Debtco LLC (the "Riverstone Funds," and
together with Riverstone Parent, "Riverstone"). Apollo Parent
similarly invested in Old Talos through Defendants Apollo Talos
Holdings, L.P., and AP Talos Energy Debtco LLC (the "Apollo Funds,"
and together with Apollo Parent, "Apollo"). Together, Riverstone
and Apollo are the "Venture Capital Defendants."
Nonparty Gregory A. Beard was instrumental in the Venture Capital
Defendants' initial investment in Old Talos. Beard co-founded
Riverstone, but moved to Apollo in 2010. In 2012, he "orchestrated"
the transaction through which Riverstone and Apollo "gained control
of Old Talos," aided by Riverstone's other co-founders, nonparties
Pierre Lapeyre and David Leuschen. Lapeyre and Leuschen had also
worked with Duncan in a previous oil company, Phoenix Exploration
Co. LP.
The Venture Capital Defendants received substantial yearly fees for
their "management consulting and advisory services" for Old Talos,
as well as a "transaction fee" equal to 2% of their initial
investment.
On May 18, 2018, Old Talos and nonparty Stone Energy Corporation
("Stone Energy") combined to form Talos (the "Combination"). The
Combination resulted in the Riverstone Funds owning 27.5% of the
Company's shares, the Apollo Funds owning 35.4%, and Stone Energy's
former stockholders owning the remaining 37.1%. The Company became
a publicly traded Delaware corporation, describing itself as "a
leading offshore energy company focused on oil and gas exploration
and production in the United States Gulf of Mexico and offshore
Mexico."
Since the Combination, the Company has been managed by a ten-member
board of directors (the "Board"). The Company's certificate of
incorporation contains a provision exculpating the Board from
breaches of the duty of care pursuant to 8 Del. C. Section
102(b)(7).
Contemporaneously with the Combination, the Venture Capital
Defendants, through their affiliated funds, entered into a
Stockholders' Agreement (the "Stockholders' Agreement").
In sum, Riverstone and Apollo each designated two Board directors,
agreed to designate one director jointly, and also agreed Duncan,
the Company's CEO, should sit on the Board; the remaining four
directors were initially designated by Stone Energy.
After the Combination, the Company filed a Form S-4 Registration
Statement on Sept. 14, 2018. That filing indicated that Talos is a
"controlled company" under applicable New York Stock Exchange
("NYSE") rules.
At the time of the Challenged Transaction, and at the time this
lawsuit was filed, the Board had 10 members, all of whom are
Defendants in this action: Duncan, Neal Goldman, Christine Hommes,
John Juneau, Donald Kendall, Jr., Rajen Mahagaokar, Charles Sledge,
Robert Tichio, James Trimble, and Olivia Wassenaar (together, the
"Director Defendants"). Three directors, Mahagaokar, Tichio and
Wassenaar were recused from considering the Challenged Transaction
due to their connection with Riverstone and Riverstone's
affiliation with the sellers in the Challenged Transaction (the
"Recused Directors"). Mahagaokar and Tichio are Riverstone's
designees on the Board. Both are Riverstone insiders: the Complaint
describes Mahagaokar as a "principal" and Tichio as a "partner."
Both were recused from discussions on the Challenged Transaction,
given their status as Riverstone fiduciaries. Wassenaar is one of
Apollo's two designees on the Board. She is a senior partner at
Apollo, which she joined in 2018 after serving as a managing
director at Riverstone. She continues to own an interest in a
Riverstone affiliate and so was also recused from discussions on
the Challenged Transaction.
Beyond the three Recused Directors, there are seven remaining
Director Defendants. Four Director Defendants--Goldman, Sledge,
Trimble, and Juneau--are former Stone Energy directors (the "Stone
Energy Directors"). The three remaining Director Defendants are
Duncan, Kendall, and Hommes. Duncan and Kendall are designated to
the Board jointly by Apollo and Riverstone. Hommes is an Apollo
partner and Board designee. The Plaintiff alleges some experiential
ties between the Directors.
After they invested in Old Talos in 2012, the Venture Capital
Defendants crossed in a 2013 energy-sector transaction. In 2013,
Apollo led a buyout group including Riverstone that bought nonparty
EP Energy Corp. ("EP Energy") for approximately $7.2 billion. In
that transaction, Apollo and Riverstone together held 68.95% of EP
Energy's stock; and, through a stockholders' agreement, they
designated seven of EP Energy's 11 directors, including Beard,
Tichio, and Mahagaokar. In 2019, EP Energy filed for bankruptcy.
Apollo lost over $2 billion as a result; Riverstone lost over $600
million.
The Complaint also describes Talos's 2018 acquisition of Whistler
Energy II, LLC ("Whistler"). Whistler was another oil company that
held assets in the Gulf of Mexico. In July 2013 and October 2014,
Apollo loaned Whistler a total of $135 million in secured
financing. Whistler suffered several operational issues, and in
March 2019, several creditors commenced involuntary bankruptcy
proceedings against it. Apollo asserted senior secured creditor
claims of approximately $143.7 million. Whistler emerged from
bankruptcy in March 2018. Apollo had received only $35 million in
cash on its loans, but also received new membership interests that
would entitle it to receive 100% of any distributions until it was
paid back on its original loans, interest, and fees.
On August 31, Talos acquired Whistler from Apollo for $52.3
million, allegedly making Apollo nearly whole on its Whistler
investment. But this came at a price: according to the Complaint,
making Apollo whole required Talos to greatly overpay for
Whistler," at a premium of between 61% and 66% over a fair price.
According to the Complaint, that transaction "bailed Apollo out of
a disastrous investment" and was the first half of the alleged quid
pro quo at the heart of this action, to be followed by the
overpayment for Riverstone assets in the Challenged Transaction.
The Complaint alleges that having agreed to let Talos bail out
Apollo from the Whistler debacle, Riverstone was rewarded with its
own sweetheart deal in the Controllers' next interested-party
transaction--the Challenged Transaction. The Complaint offers no
other allegations that Riverstone was involved in the Whistler
transaction, or that it struck any agreement with Apollo to support
the Whistler deal in exchange for a future favor.
The Challenged Transaction
On Dec. 10, 2019, Talos announced that it had entered into
agreements to acquire a portfolio of U.S. Gulf of Mexico
oil-producing assets, prospects and acreage from non-parties Castex
Energy 2014, LLC, ILX Holdings, LLC, and their affiliates
(together, "Sellers"). Sellers are affiliated with Riverstone. The
arrangement between Talos and Sellers would ultimately become the
Challenged Transaction at issue here.
Based on an "extensive valuation analysis" in the Complaint, the
Plaintiff alleges that Talos "grossly overpaid" in the Challenged
Transaction, giving Riverstone an unfair windfall. The Plaintiff
alleges the Challenged Transaction is the second half of the quid
pro quo between the Venture Capital Defendants, in which Talos
overpaid for a Riverstone asset to make up for Talos overpaying
Apollo in the Whistler transaction. To support this claim, the
Complaint describes the evolution of the Challenged Transaction's
terms, and then devotes substantial space to criticize the
Challenged Transaction's fairness.
Despite the benefit of books and records, the Complaint offers few
details on the process leading up to the Challenged Transaction. It
appears the Board was responsible for negotiating the terms of the
Challenged Transaction in the first instance.
Because the Challenged Transaction issued Talos stock to a
Riverstone affiliate, Riverstone's Talos holdings were
substantially increased: from 27.5% to 39.8%. Other stockholders,
including Apollo, saw a dilution of their shares.
The Plaintiff devotes over a third of his Complaint to detailing
why he believes the Challenged Transaction was unfair to Talos and
its minority stockholders. The majority of this discussion is
focused on alleged defects in the Fairness Opinion of Talos's
financial advisor, Defendant Guggenheim Securities, LLC
("Guggenheim"), presenting a "technical valuation analysis" on the
Challenged Transaction. The Fairness Opinion evaluated the
Challenged Transaction in part by drawing comparisons between
Talos, Sellers, and other comparable companies.
According to the Plaintiff, Guggenheim failed to draw these
comparisons systematically, employing a flawed valuation method
that consistently undervalued Talos and overvalued the Sellers'
assets. These valuation discrepancies were animated in part by the
differences between the value of oil and natural gas, causing
Guggenheim to overvalue Sellers' gas-skewed reserves and undervalue
Talos's oil-heavy reserves. The Fairness Opinion also did not
account for one of Talos's main Mexican oil assets, known as the
Zama field.
The Plaintiff alleges that had Guggenheim considered Zama, its
Fairness Opinion could not have supported the Challenged
Transaction. Based on these and other deficiencies, the Plaintiff
concludes the Challenged Transaction was unfair to the Company and
its minority stockholders. The Plaintiff repeatedly alleges these
problems were obvious and "could not have been overlooked by
persons knowledgeable in the energy industry."
The Plaintiff Seeks Books and Records
Motivated by problems in the Fairness Opinion, the Plaintiff served
the Board with a demand to inspect Talos's books and records
pursuant to 8 Del. C. Section 220 on March 31, 2020. The parties
did not litigate the Plaintiff's demand and agreed to a stipulated
production on May 14. The parties memorialized that production with
a "Confidentiality and Non-Disclosure Agreement."
After the Plaintiff filed his complaint, the Company produced other
documents it claims are responsive to the Plaintiff's Section 220
demand. It has also brought forward "amended" Board minutes that
are inconsistent with those the Company produced to the Plaintiff
earlier. In making plaintiff-friendly inferences at this stage, the
Court has relied only on the Plaintiff's allegations as framed by
the Board minutes and other documents the Company produced to the
Plaintiff before he filed his Complaint.
The Plaintiff Files this Action
On May 29, the Plaintiff filed his derivative and class action
Complaint. The Complaint asserts seven counts. Counts I and IV
allege the Director Defendants breached their fiduciary duties by
consummating the Challenged Transaction. Count I is direct and
Count IV is derivative. Counts II and V allege the Venture Capital
Defendants breached their fiduciary duties as controlling
stockholders. Count II is direct and Count V is derivative. Counts
III and VI allege Guggenheim aided and abetted the Director
Defendants' breaches of fiduciary duty. Count III is direct and
Count VI is derivative. Count VII alleges Riverstone was unjustly
enriched by the Challenged Transaction, a claim the Plaintiff
brings derivatively.
On August 8, Defendants filed four motions to dismiss the Complaint
under Court of Chancery Rule 12(b)(6) (the "Motions"). The parties
fully briefed the Motions and the Court heard oral argument on Feb.
19, 2021.
The Plaintiff originally named only Riverstone Parent and Apollo
Parent as Defendants, despite admitting these entities do not own
any Talos stock. On May 17, the Court issued a letter opinion
concluding that because the Complaint sought to impose fiduciary
duties on the absent Riverstone Funds and Apollo Funds, the Court
could not afford complete relief among the parties currently before
it under Rule 19.
Judge Zurn held the Motions in abeyance until the parties joined
the relevant Apollo Funds and Riverstone Funds, which they did by
stipulation on June 7. The Apollo Funds and Riverstone Funds
declined to present any additional briefing.
Earlier in the afternoon of Sept. 30, 2021, the Plaintiff filed a
stipulation voluntarily dismissing his direct claims in Counts I,
II, and III. This Opinion, therefore, addresses only his derivative
claims in Counts IV, V, VI, and VII.
Analysis
The Plaintiff complains that Talos's fiduciaries caused the Company
to engage in the Challenged Transaction via an unfair process and
at an unfair price. To properly position that claim before the
Court, Plaintiff relies on his theory that the Challenged
Transaction is subject to entire fairness review because of the
presence of a conflicted control group. The Plaintiff does not
focus on any particular wrongdoing by a fiduciary. He instead
builds a theory of liability on the fact of overpayment, inferring
that overpayment to Riverstone must have been the result of
Riverstone partnering with Apollo to implement a quid pro quo.
But even with the benefit of plaintiff-friendly inferences on a
fact-specific inquiry, the Plaintiff has failed to plead that the
Venture Capital Defendants are a control group, Judge Zurn finds.
Accordingly, the Challenged Transaction is presumptively subject to
the business judgment rule's deference.
Stripped of the presence of a control group, it is unclear what
breach of fiduciary duty the Plaintiff asserts to rebut the
business judgment rule, Judge Zurn notes. The Plaintiff does not go
so far as to allege waste. But even assuming the Plaintiff has
fairly pled derivative breaches of the duties of loyalty or care,
the Plaintiff has failed to allege demand futility for those
claims, Judge Zurn adds.
Counts IV, VI, and VII allege derivative claims for breach of
fiduciary duty against the Director Defendants, for aiding and
abetting against Guggenheim, and for unjust enrichment against
Riverstone. Derivative claims belong to the Company and the
decision whether to pursue the claim presumptively lies with the
Board. But the law recognizes that, in certain circumstances,
stockholders may pursue litigation derivatively on behalf of the
corporation as a matter of equity to redress the conduct of a
torpid or unfaithful management where those in control of the
company refuse to assert (or are unfit to consider) a claim
belonging to it.
Applying the Zuckerberg test to the facts here, Judge Zurn
concludes that the Plaintiff cannot show that at least half the
members of the Company's Board were incapable of fairly and
impartially considering a litigation demand. Talos's Board has ten
members. Defendants concede that the three Recused Directors would
have been interested for demand futility purposes. Under Zuckerberg
prong one, demand would have been futile as to those directors
because their affiliation with Riverstone caused them to receive "a
material personal benefit from the alleged misconduct that is the
subject of the litigation demand." The question is, therefore,
whether the remaining seven directors could have fairly considered
a demand. Judge Zurn concludes that at least six could have, and
so, the Plaintiff cannot show that demand would have been futile
for at least half of the Board's 10 directors.
In sum, Judge Zurn holds, the Plaintiff has not alleged that a
majority of the Board is incapable of impartially considering the
demand's merits without being influenced by improper
considerations. Demand would not have been futile as to at least
six of the ten Board members, so the Plaintiff lacks standing to
pursue derivative claims on the Company's behalf under Rule 23.1.
His derivative claims in Counts IV, VI, and VII are dismissed.
Conclusion
For these reasons, the Defendants' Motions are granted in full.
A full-text copy of the Court's Memorandum Opinion dated Sept. 30,
2021, is available at https://tinyurl.com/dtrzmj8a from
Leagle.com.
Stephen E. Jenkins -- TMickler@ashbygeddes.com -- and F. Troupe
Mickler IV -- SJenkins@ashbygeddes.com -- ASHBY & GEDDES, P.A., in
Wilmington, Delaware; Eduard Korsinsky -- ek@zlk.com -- Gregory M.
Nespole -- gnespole@zlk.com -- and Daniel Tepper -- dtepper@zlk.com
-- LEVI & KORSINSKY, LLP, in New York City, Attorneys for the
Plaintiff.
Kevin R. Shannon -- kshannon@potteranderson.com -- Matthew F. Davis
-- mdavis@potteranderson.com -- and Justin T. Hymes --
jhymes@potteranderson.com -- POTTER ANDERSON & CORROON LLP, in
Wilmington, Delaware; David M. Zensky -- dzensky@akingump.com --
and Brian Carney -- bcarney@akingump.com -- AKIN GUMP STRAUSS HAUER
& FELD LLP, in New York City; M. Scott Barnard --
sbarnard@akingump.com -- AKIN GUMP STRAUSS HAUER & FELD LLP, in
Dallas, Texas, Attorneys for Defendants Timothy S. Duncan, Neal P.
Goldman, Christine Hommes, John "Brad" Juneau, Donald R. Kendall,
Jr., Rajen Mahagaokar, Charles M. Sledge, Robert M. Tichio, James
M. Trimble, and Olivia C. Wassenaar and Nominal Defendant Talos
Energy Inc.
David E. Ross -- dross@ramllp.com -- and Anthony M. Calvano --
acalvano@ramllp.com -- ROSS ARONSTAM & MORITZ LLP, in Wilmington,
Delaware; Andrew B. Clubok -- andrew.clubok@lw.com -- J. Christian
Word -- christian.word@lw.com -- and Stephen P. Barry --
stephen.barry@lw.com -- LATHAM & WATKINS, LLP, in Washington, D.C.,
Attorneys for Defendants Defendant Riverstone Holdings, LLC,
Riverstone Talos Energy Equityco LLC and Riverstone Talos Energy
Debtco LLC.
Rudolf Koch -- koch@rlf.com -- Matthew D. Perri -- perri@rlf.com --
and Andrew L. Milam -- milam@rlf.com -- RICHARDS LAYTON & FINGER,
P.A., in Wilmington, Delaware; Robert I. Bodian --
RBodian@mintz.com -- Francis J. Earley -- FEarley@mintz.com --
Jacob H. Hupart -- JHHupart@mintz.com -- and Kaitlyn A. Crowe --
KACrowe@mintz.com -- MINTZ, LEVIN, COHN, FERRIS, GLOVSKY AND POPEO,
P.C., in New York City, Attorneys for Defendants Apollo Global
Management, Inc., Apollo Talos Holdings, L.P., and AP Talos Energy
Debtco LLC.
William B. Chandler III -- wchandler@wsgr.com -- Andrew D. Cordo --
acordo@wsgr.com -- and Jeremy W. Gagas -- jgagas@wsgr.com -- WILSON
SONSINI GOODRICH & ROSATI, in Wilmington, Delaware; Mark A. Kirsch
-- mkirsch@gibsondunn.com -- Randy M. Mastro --
rmastro@gibsondunn.com -- and Shireen A. Barday --
sbarday@gibsondunn.com -- GIBSON DUNN & CRUTCHER, in New York City,
Attorneys for Defendant Guggenheim Securities, LLC.
TASTES ON THE FLY: Yepez Labor Suit Removed to N.D. California
--------------------------------------------------------------
The case styled ADRIAN YEPEZ, individually and on behalf of all
others similarly situated v. TASTES ON THE FLY SAN FRANCISCO, LLC,
Case No. 21-CIV-01358, was removed from the Superior Court of the
State of California, County of San Mateo, to the U.S. District
Court for the Northern District of California on October 8, 2021.
The Clerk of Court for the Northern District of California assigned
Case No. 3:21-cv-07923 to the proceeding.
The case arises from the Defendant's alleged violations of the
California Labor Code including failure to provide meal and rest
periods or compensation in lieu thereof, failure to pay all wages,
failure to provide accurate itemized statements, failure to pay
wages due at termination of employment, and failure to timely pay
wages.
Tastes on the Fly San Francisco, LLC is a restaurant owner and
operator located in San Mateo, California. [BN]
The Defendant is represented by:
Arthur Gaus, Esq.
KAUFMAN DOLOWICH & VOLUCK, LLP
425 California Street, Suite 2100
San Francisco, CA 94104
Telephone: (415) 926-7600
Facsimile: (415) 926-7601
TD BANK: Burns Consumer Class Suit Removed to D. New Jersey
-----------------------------------------------------------
The case styled KYLE BURNS, individually and on behalf of all
others similarly situated v. TD BANK, N.A., Case No.
CAM-L-002478-21, was removed from the Superior Court of New Jersey,
Law Division, Camden County, to the U.S. District Court for the
District of New Jersey on October 7, 2021.
The Clerk of Court for the District of New Jersey assigned Case No.
1:21-cv-18194-RBK-KMW to the proceeding.
The case arises from the Defendant's alleged breach of contract,
breach of the covenant of good faith and fair dealing, and
violation of the New York General Business Law by charging
unauthorized overdraft fees on the debit card transactions of the
Plaintiff and Class members.
TD Bank, N.A. is an American national bank, headquartered in Cherry
Hill, New Jersey. [BN]
The Defendant is represented by:
William M. Tambussi, Esq.
Susan M. Leming, Esq.
Jonathan L. Triantos, Esq.
Margaret M. Doyle, Esq.
BROWN & CONNERY, LLP
360 Haddon Avenue
P.O. Box 539
Westmont, NJ 08108
Telephone: (856) 854-8900
TFORCE FREIGHT: Court Narrows Claims in Mish Suit
-------------------------------------------------
In the class action lawsuit captioned as DONYEISHA MISH, v. TFORCE
FREIGHT, INC., Case No. 3:21-cv-04094-EMC (N.D. Cal.), the Hon.
Judge Edward M. Chen entered an order:
1. granting TForce's motion to dismiss Mish's seventh cause
of action and all class allegations, and dismissing those
claims without prejudice and granting Mish leave to amend
her complaint within 30 days from the date of this order;
and
2. denying TForce's motion to dismiss Mish's third and fourth
causes of action to the extent they pertain to allegations
on her own behalf.
The Plaintiff Mish, formerly employed as a Parts Clerk for
Defendant Tforce, brings wage-and-hour and unfair competition
claims under California law on behalf of herself and two putative
classes of non-exempt TForce Freight employees in California in her
First Amended Complaint.
The FAC alleges seven causes of action against TForce under
California law:
(1) Recovery of Unpaid Minimum Wages;
(2) Recovery of Unpaid Overtime Wages;
(3) Failure to Provide Meal Periods;
(4) Failure to Provide Rest Periods;
(5) Failure to Provide Accurate Wage Statements;
(6) Waiting Time Penalties; and
(7) Unfair Competition.
TForce, a subsidiary of TFI International, is an American less than
truckload freight carrier based in Richmond, Virginia.
A copy of the Court's order dated Oct. 6, 2021 is available from
PacerMonitor.com at https://bit.ly/3lFBi9i at no extra charge.[CC]
TOUR RESOURCE: Bid to Dismiss Certain Claims in Delcavo Suit Denied
-------------------------------------------------------------------
In the case, ANTHONY DELCAVO, individually and on behalf of all
others similarly situated, Plaintiff v. TOUR RESOURCE CONSULTANTS,
LLC, Defendant, Case No. 21-2137-JWL (D. Kan.), Judge John W.
Lungstrum of the U.S. District Court for the District of Kansas
denied the Defendant's motion to dismiss certain claims asserted in
the Plaintiff's amended complaint.
Background
The Defendant provides travel services for groups, and in 2019 a
music group arranged for the Defendant to provide services for a
June 2020 tour to Italy. The Plaintiff's son was a member of the
group, and in November 2019, the Plaintiff paid the Defendant $400
as an initial deposit for the trip. The Plaintiff later paid the
Defendant an additional $400 for another person planning to travel
with the group. In January 2020, the Plaintiff received a trip
itinerary that included the Defendant's cancellation policy,
although he did not receive that policy from the Defendant at that
time or before he paid the deposit.
In March 2020, when travel to Italy became impossible in light of
the COVID-19 pandemic, the Defendant and the music group jointly
cancelled the Plaintiff's booking. The Defendant notified the
Plaintiff and others that their $400 deposits would not be refunded
and would serve as cancellation fees. It subsequently sent the
Plaintiff a letter in which it confirmed that it would retain the
Plaintiff's deposit as a cancellation fee. The letter included its
cancellation policy and a separate force majeure policy.
In March 2021, the Plaintiff filed the putative class action. In
Counts I and II of his amended complaint, the Plaintiff asserts
common-law claims for unjust enrichment and conversion. In the
alternative, he asserts a claim for breach of contract in Count
III. Finally, in Count IV, the Plaintiff asserts claims under the
Kansas Consumer Protection Act (KCPA), K.S.A. Sections 50-626,
-627.
By the present motion, the Defendant seeks dismissal of the unjust
enrichment, conversion, and KCPA claims.
Analysis
A. Choice of Law
In seeking dismissal of the unjust enrichment and conversion
claims, the Defendant relies on Kansas law, but it has not shown
that those claims are governed by the state's substantive law, as
neither party has addressed the choice-of-law issue in briefing the
motion. Judge Lungstrum applies the forum state's choice-of-law
rules to determine which state's substantive law governs a claim.
Under Kansas law, tort actions are governed by the law of the state
in which the tort occurred, that is, the state in which the wrong
was felt. As the Court has ruled on multiple occasions, if the
alleged wrong involves only financial harm, the claim is governed
by the law of the state of the plaintiff's residence.
With respect to a claim of unjust enrichment, Judge Lungstrum does
not resolve the issue at this time. She need not do so to rule the
present motion, as the law of Kansas (where the Defendant is
located) and the law of Colorado (where the Plaintiff resides) does
not differ with respect to the sole issue raised by the Defendant
with respect to the unjust enrichment claim.
Finally, the Plaintiff asserts statutory claims under Kansas law.
The Defendant does not contend in the present motion that its
conduct does not fall within the reach of the statute, however, and
thus no choice-of-law issue presently arises with respect to the
KCPA claims.
B. Unjust Enrichment Claim (Count I)
The Defendant seeks dismissal of the Plaintiff's unjust enrichment
claim based on the principle (which the Plaintiff does not dispute)
that such a claim is prohibited if there is a valid contract
between the parties that addresses the particular issue. It
concedes that a plaintiff ordinarily may plead an unjust enrichment
claim in the alternative to a contract claim. The Defendant argues,
however, that the Plaintiff may not do so because he has relied on
the parties' contract to support the unjust enrichment claim
pleaded in the amended complaint.
Judge Lungstrum rejects this argument because it is clear that the
Plaintiff has not alleged or conceded the existence of a valid
contract between him and the Defendant. He does not agree with the
Defendant that the Plaintiff effectively conceded the existence of
a contract by relying on such a contract to support his unjust
enrichment claim. He says, the existence of a valid contract
governing the issue is not undisputed, and there is no basis to
prohibit the Plaintiff's alternative pleading at this stage. Judge
Lunsgtrum thus denies the Defendant's motion to dismiss the unjust
enrichment claim.
C. Conversion Claim (Count II)
The Defendant argues that the Plaintiff's conversion claim should
be dismissed because its retention of his deposit was not
unauthorized. Specifically, it argues that the Plaintiff has relied
on the parties' contract in alleging that the retention was
unauthorized, but that the contract permitted that retention
pursuant to the force majeure clause.
Judge Lungstrum rejects this argument for dismissal for a number of
reasons. First, the Plaintiff does not concede that a contract
existed between the parties, and thus a contract cannot be assumed.
Second, even if the Plaintiff had conceded the existence of a
contract that included the cancellation policy, he would not
necessarily have conceded that the contract also included the force
majeure clause on which defendant relies. Third, even if it could
be assumed that the Plaintiff agreed to the force majeure clause,
the Court would hesitate to construe that clause as argued by
defendant. Finally, even if the force majeure clause did require
participants to compensate defendant for its own losses, the
Plaintiff has alleged that the amount of the deposits did not in
fact relate to the amount of any loss incurred by the Defendant,
and thus the amount the Defendant would be entitled to retain would
present a question of fact for further litigation.
For these reasons, Judge Lungstrum denies the Defendant's motion to
dismiss the Plaintiff's conversion claim.
D. KCPA Claims (Count IV)
In asserting claims under the KCPA, the Plaintiff alleges that the
Defendant violated K.S.A. Section 50-626's prohibition against
deceptive acts and practices and K.S.A. Section 50-627's
prohibition against unconscionable acts and practices. The
Defendant seeks dismissal of these claims.
Judge Lungstrum finds that concludes that the Plaintiff has
satisfied the rule with respect to the alleged omission, as he has
stated specific facts about the Defendant's communications with him
while also alleging that those communications did not include a
disclosure that the Defendant would retain the Plaintiff's deposit
in the event of a cancellation not made by him. Judge Lungstrum
also cannot conclude that the Plaintiff's claims that the Defendant
knowingly failed to disclose that it would not return his deposit
in the event of a cancellation even if he did not cancel the trip
himself, is implausible. Finally, the Plaintiff has alleged unequal
bargaining power, and whether the alleged conduct is sufficient to
support a violation of the statute may be determined only upon
consideration of the facts.
Conclusion
In light of the foregoing, Judge Lungstrum denied the Defendant's
partial motion to dismiss.
A full-text copy of the Court's Sept. 29, 2021 Memorandum & Order
is available at https://tinyurl.com/2jx5cpaa from Leagle.com.
TOYOTA MOTOR: Perez Sues Over Prius Vehicles' Defective HVAC System
-------------------------------------------------------------------
JOSE JAVIER PEREZ, individually and on behalf of all others
similarly situated, Plaintiff v. TOYOTA MOTOR SALES, U.S.A., INC.,
TOYOTA MOTOR CORPORATION, and SOUTHEAST TOYOTA DISTRIBUTORS, LLC,
Defendants, Case No. 0:21-cv-62117 (S.D. Fla., October 12, 2021) is
a class action against the Defendants for fraudulent concealment,
unjust enrichment, breach of implied warranties, breach of express
warranty, and violations of the Racketeer Influenced and Corrupt
Organizations Act, the Magnuson-Moss Warranty Act, and the
Florida's Deceptive and Unfair Trade Practices Act.
The case arises from the Defendants' sale and distribution of
2006-2020 Toyota Prius, 2017-2020 Toyota Prius Prime, 2010-2015
Toyota PHV, 2012-2016 Toyota Prius C, and 2012-2017 Prius V
vehicles with an identical and inherent design defect in the
Heating, Ventilation, and Air Conditioning (HVAC) System. The
defect, which was latent, but existed at the time that the Class
vehicles left the Defendants' possession and control, permits the
accumulation of moisture and microbial growth within the HVAC
system, causing it to emit foul, noxious, and/or toxic odors into
the vehicles' passenger compartments and exposing the occupants to
a safety risk from the mold and other contaminants that are emitted
in the air circulated through the defective HVAC System, alleges
the suit.
Additionally, Toyota has refused to issue a recall and has not
remedied the defect and/or compensated the Plaintiff or Class
members for their damages resulting from the material defect.
Rather, the Defendants wrongfully and intentionally concealed
information about the defect to the Plaintiff and Class members,
the suit added.
Toyota Motor Sales, U.S.A., Inc. is the North American sales,
marketing, and distribution subsidiary of Toyota Motor Corporation,
with its principal place of business in Plano, Texas.
Toyota Motor Corporation is a multinational automotive manufacturer
headquartered in Toyota City, Aichi, Japan.
Southeast Toyota Distributors, LLC is a dealer of Toyota vehicles
headquartered in Deerfield Beach, Florida. [BN]
The Plaintiff is represented by:
Jason H. Alperstein, Esq.
Jeff Ostrow, Esq.
Kristen Lake Cardoso, Esq.
KOPELOWITZ OSTROW FERGUSON WEISELBERG GILBERT
One West Las Olas, Suite 500
Fort Lauderdale, FL 33301
Telephone: (954) 525-4100
Facsimile: (954) 525-4300
E-mail: alperstein@kolawyers.com
ostrow@kolawyers.com
cardoso@kolawyers.com
- and –
Steven G. Calamusa, Esq.
Rachel A. Bentley, Esq.
Geoffrey Stahl, Esq.
GORDON & PARTNERS, P.A.
4114 Northlake Boulevard
Palm Beach Gardens, FL 33410
Telephone: (561) 799-5070
Facsimile: (561) 799-4050
E-mail: scalamusa@fortheinjured.com
rbentley@fortheinjured.com
gstahl@fortheinjured.com
- and –
Scott Edelsberg, Esq.
EDELSBERG LAW, P.A.
20900 NE 30th Ave., #417
Aventura, FL 33180
Telephone: (786) 289-9471
E-mail: scott@edelsberglaw.com
TWIN CITY FIRE: Martin Files Suit in W.D. Pennsylvania
------------------------------------------------------
A class action lawsuit has been filed against Twin City Fire
Insurance Company. The case is styled as MICHAEL MARTIN, KAREN
MARTIN both doing business as: MARTINS OF SEWICKLEY, on behalf of
itself and all others similarly situated v. Twin City Fire
Insurance Company, Case No. 2:21-cv-01355-JFC (W.D. Pa., Oct. 11,
2021).
The nature of suit is stated as Insurance for Insurance Contract.
Twin City Fire Insurance Company offers property and casualty
insurance products and services.[BN]
The Plaintiff is represented by:
Gary F. Lynch, Esq.
CARLSON LYNCH LLP
1133 Penn Avenue, 5th Floor
Pittsburgh, PA 15222
Phone: (412) 322-9243
Email: glynch@carlsonlynch.com
ULTA BEAUTY: Court Narrows Claims in Hansber Suit
-------------------------------------------------
In the class action lawsuit captioned as SUSAN HANSBER, NANG CHAN,
and JESUS MORENO, on behalf of themselves, all others similarly
situated, and the general public, v. ULTA BEAUTY COSMETICS, LLC,
and DOES 1-100, Case No. 1:21-cv-00022-AWI-JLT (E.D. Cal.), the
Hon. Judge Anthony W. Ishii entered an order:
1. granting in part and denying in part the Defendants'
motion to dismiss or strike;
a. The seventh cause of action for timely wages violations
under California Labor Code section 204 is dismissed
with prejudice; and
b. All references to injunctive relief and declaratory
relief are stricken; and
2. granting Plaintiffs leave to file an amended complaint:
-- If Plaintiffs elect to file a third amended complaint,
they must do so within 30 days of service of this order.
On July 10, 2020, Hansber filed an initial complaint in state
court, naming as defendants Ulta and Does 1-100. Then, on November
4, 2020, Hansber, Chan, and 26 filed a first amended complaint
against Ulta, Spherion Staffing, LLC, and the Doe defendants.
Spherion removed the action to this Court pursuant 28 U.S.C. 28
section 1332(d). Thereafter, Plaintiffs filed a second amended
complaint, wherein they pleaded nine causes of action against only
Ulta and the Doe defendants.
In the second amended complaint, which is the operative pleading,
the Plaintiffs allege that they formerly worked as non-exempt,
hourly workers in Defendants’ California warehouse and
distribution facilities.
The Plaintiffs seek to represent a class of similarly situated
non-exempt, hourly workers for purposes of nine causes of action:
failure to pay straight-time wages failure to pay overtime wages;
failure to provide meal periods or compensation in lieu thereof;
failure to provide rest periods or compensation in lieu thereof;
failure to provide accurate wage statements; failure to pay
separation wages; failure to timely pay wages; violations of
California's unfair competition law; and entitlement to civil
penalties under California's Private Attorney General Act.
Ulta offers customers prestige & mass cosmetics, makeup, fragrance,
skincare, bath and body, haircare tools and salon.
A copy of the Court's order dated Oct. 5, 2021 is available from
PacerMonitor.com at https://bit.ly/3mKwXRi at no extra charge.[CC]
UNITED STATES: Plaintiff No. 1's Bid for Certification Denied
-------------------------------------------------------------
Judge Stephen S. Schwartz of the United States Court of Federal
Claims denied without prejudice the Plaintiff's Motion for
Conditional Certification and Notice in the lawsuit styled
PLAINTIFF NO. 1, Plaintiff v. THE UNITED STATES, Defendant, Case
No. 19-1019C (Fed. Cl.).
The Plaintiff claims that the Department of Defense ("DOD")
violated the Fair Labor Standards Act ("FLSA") by failing to
compensate him for the time he spent outside working hours
completing the DOD Counterintelligence Agent Course ("DCAC") from
Jan. 4 to March 2, 2018. The Plaintiff has moved for Court-issued
notice concerning the case to members of his DOD "component" who
attended the DCAC up to three years ago.
The motion is governed by Section 16(b) of FLSA, which entitles
employees to bring claims on behalf of themselves and those who are
"similarly situated." The parties in this case appear to agree that
past cases have misconceptualized the standard for FLSA notice,
Judge Schwartz notes.
Contrary to cases that have analyzed FLSA notice using inaccurate
analogies to class action procedures, see, e.g., Lusardi v. Xerox
Corp., 118 F.R.D. 351 (D.N.J. 1987), mandamus granted on other
grounds sub nom. Lusardi v. Lechner, 855 F.2d 1062 (3d Cir. 1988),
notice is a case management device for ensuring orderly joinder of
individuals likely to be "similarly situated" to the original
plaintiff, Judge Schwartz states.
For the Court to issue notice, the Plaintiff, thus, must show that
he is likely to be "similarly situated" to the people who would
receive the proposed notice. In other words, the Plaintiff's
experience with the DCAC between Jan. 4 and March 2, 2018, has to
be similar to that of individuals in his DOD component who
participated in the last three years.
Judge Schwartz finds that there are several problems with the
Plaintiff's showing.
Judge Schwartz notes that the sole evidentiary support for the
motion is the Plaintiff's own declaration. But the declaration
speaks only of the Plaintiff's DCAC class in early 2018. The
individuals in the Plaintiff's class are not even in the group, who
would receive notice under the Plaintiff's proposal, which only
calls for notice covering the last three years. The declaration
says nothing at all about other DCAC classes at later times. Nor
does it address other employees in the Plaintiff's DOD "component"
or the policies applicable to their compensation. The term
"component," in fact, appears only in the Plaintiff's briefing.
The Plaintiff argues that "two people would be similarly situated
if, when assessing the merits of their claim the sort of primary
issues are the same for both of them -- factual and legal issues."
Even assuming arguendo that definition is correct, the Plaintiff
cannot make such a showing without establishing that people who
took the DCAC after him had a similar experience in the course and
were subject to at least similar policies, Judge Schwartz opines.
But the declaration is silent on those issues. The declaration,
therefore, provides no basis to conclude that a broader category of
individuals is similarly situated to the Plaintiff.
The Plaintiff argues for a presumption that the DCAC has remained
consistent and that members of his component have been subject to
the same policies. But that is only speculation, considering that
he has not provided evidence or attested to personal knowledge
about the rest of his component or subsequent DCAC classes, Judge
Schwartz holds. A presumption would also be inconsistent with the
Plaintiff's burden to show that sending notice would serve the
purposes of a FLSA collective action or rise above mere
"solicitation of claims."
The Plaintiff, thus, cannot cure the omissions in his declaration
by reference to presumptions about other employees at other times.
Conclusion
For these reasons, the Plaintiff's Motion for Conditional
Certification and Notice is denied without prejudice. The parties
must submit a joint status report with proposals for further
proceedings.
A full-text copy of the Court's Opinion and Order dated Sept. 30,
2021, is available at https://tinyurl.com/n2ja5848 from
Leagle.com.
US DOMINION: Cooper Files RICO Suit in D. Colorado
--------------------------------------------------
A class action lawsuit has been filed against US Dominion, Inc., et
al. The case is styled as Jennifer L. Cooper, Eugene Dixon, Francis
J. Cizmar, Anna Pennala, Kathleen Daavettila, Cynthia Brunell,
Karyn Chopjian, Abbie Helminen, individually, and on behalf of all
others similarly situated v. US Dominion, Inc., Dominion Voting
Systems, Inc., Dominion Voting Systems Corporation, Case No.
1:21-cv-02672-STV (D. Colo., Sept. 30, 2021).
The lawsuit is brought over alleged violation of the Racketeer
Influenced and Corrupt Organizations Act.
Dominion Voting Systems -- https://www.dominionvoting.com/ -- is a
leading supplier of election technology across the U.S., Canada and
globally.[BN]
The Plaintiffs are represented by:
Douglas A. Daniels, Esq.
Heath Aaron Novosad, Esq.
James Christopher Diamond, Esq.
DANIELS AND TREDENNICK PLLC
6363 Woodway, Suite 700
Houston, TX 77057
Phone: (713) 917-0024
Fax: (713) 917-0026
Email: doug.daniels@dtlawyers.com
heath.novosad@dtlawyers.com
chris.diamond@dtlawyers.com
- and -
Robert A. McGuire, III, Esq.
ROBERT MCGUIRE LAW FIRM
1624 Market Street, Suite 226
Pmb 86685
Denver, CO 80202-2523
Fax: (720) 420-1395
Email: ram@lawram.com
The Defendants are represented by:
David Meschke, Esq.
Stanley L. Garnett, Esq.
BROWNSTEIN HYATT FARBER SCHRECK LLP-Denver
410 17th Street, Suite 2200
Denver, CO 80202-4432
Phone: (303) 223-1219
Email: dmeschke@bhfs.com
sgarnett@bhfs.com
USF HOLLAND: Partial Bid to Dismiss EEOC's Complaint Granted
------------------------------------------------------------
District Judge Neal B. Biggers, Jr., of the U.S. District Court for
the Northern District of Mississippi, Oxford Division, granted the
Defendant's partial motion to dismiss the Plaintiff's complaint in
the lawsuit entitled EQUAL EMPLOYMENT OPPORTUNITY COMMISSION,
Plaintiff v. USF HOLLAND, LLC, Defendant, Case No.
3:20-cv-270-NBB-RP (N.D. Miss.).
The complaint filed by the Equal Employment Opportunity Commission
("EEOC") alleges that Defendant USF Holland, LLC discriminated
against an employment applicant, Marilyn Hervery, and other
unidentified women by purportedly failing to hire her and a class
of other females, because of their sex, female, for truck driving
positions at its Olive Branch, Mississippi terminal from its
opening around 1986 to the present. Hervery alleges she applied for
a truck driving position with Holland in May 2015, but Holland did
not extend an offer of employment to her, instead hiring three male
applicants for truck driving positions. On Oct. 8, 2015, Hervery
filed a charge of discrimination asserting Holland discriminated
against her based on her sex in violation of Title VII by not
hiring her for a position for which she was qualified.
The EEOC brings this action under Section 706 of Title VII to
pursue relief for Hervery and a class of other women, alleging that
Holland has engaged in unlawful employment practices by failing to
hire Hervery and other women as truck drivers since the opening of
its Olive Branch location in 1986 until the present.
To pursue a Title VII claim, a plaintiff must first file a timely
charge with the EEOC regarding the claim and exhaust administrative
remedies. Section 706 authorizes the EEOC to sue on behalf of one
or more "persons aggrieved" by an unlawful employment practice.
When a plaintiff brings a class action on behalf of aggrieved
applicants, the plaintiff may allow applicants who did not file a
charge to "piggyback" onto a timely charge filed by another
applicant, see, e.g., Price v. Choctaw Glove & Safety Co., 459 F.3d
595, 598 (5th Cir. 2006).
The "piggyback" (or "single-filing") rule, however, allows
aggrieved applicants who seek to attach their claims onto the
underlying charge in a federal court action to do so only if the
discrimination they allege occurred during the relevant limitations
period, as determined by the charge underlying the federal court
action.
Section 706 provides that a charge under this section will be filed
within 180 days after the alleged unlawful employment practice
occurred, 42 U.S.C. Section 2000e-5(e)(1). Because Hervery filed
her charge on Oct. 8, 2015, any purported claims predating April
11, 2015 (that is, 180 days prior to the filing date of Hervery's
EEOC charge) are time-barred.
Further, the EEOC cannot evade the limitations period by invoking
the "continuing violation doctrine," as it does not apply to
failure-to-hire claims, even when a "systemic policy" or a "pattern
and practice" are alleged, Judge Biggers opines, citing Frank v.
Xerox Corp., 347 F.3d 130, 136 (5th Cir. 2003).
Failure to hire is a "discrete act" which is easy to identify and
distinguished from hostile work environment claims, which the
Supreme Court has found amenable to the continuing violation
doctrine, Judge Biggers explains, citing Nat'l R.R. Passenger Corp.
v. Morgan, 536 U.S. 101, 115 (2002). Such claims are not at issue
in this case. Only claims involving discrete acts are at issue
here.
For these reasons, the Court finds that the Defendant's partial
motion to dismiss the Plaintiff's complaint is well taken and
should be granted. A separate order in accordance with this opinion
will issue.
A full-text copy of the Court's Memorandum Opinion dated Sept. 30,
2021, is available at https://tinyurl.com/3z6v6csm from
Leagle.com.
UTAH: Medina Suit Seeks to Certify Class of Detainees
-----------------------------------------------------
In the class action lawsuit captioned as DAWN HEPIKIYA MEDINA,
JUSTIN HORTON, MADELAINE THOMPSON, LUKE MELVIN LEWIS, and MARCOS
HERNANDEZ on behalf of themselves and all others similarly
situated, v. THE HON. ANN MARIE MCIFF ALLEN, THE HON. JEREMIAH
HUMES, THE HON. CHRISTINE JOHNSON, THE HON. THOMAS LOW, and THE
HON. MATTHEW BELL in their official capacities, Case No.
4:21-cv-00102-DN-PK (D. Utah), the Plaintiffs ask the Court to
enter an order:
1. certifying a proposed class pursuant to Rule 23 of the
Federal Rules of Civil Procedure defined as:
"All people who are or will be detained in the Iron,
Carbon, Beaver, and Utah County jails because they are
unable to pay a secured financial condition of release;"
and
2. appointing their counsel to represent the certified class
under Rule 23(g) of the Federal Rules of Civil Procedure.
In the alternative, the Plaintiffs seek a minimum of six months for
document discovery and depositions, followed by a hearing to
present testimony and further evidence in support of this motion.
The Plaintiffs, pretrial detainees in the Iron, Carbon, Beaver, and
Utah County jails, have filed this proposed class action
challenging Defendants' unconstitutional pretrial detention system,
which jails poor individuals without affording due process or
providing counsel as required by the Sixth Amendment.
The Defendants' post-arrest policies and practices violate
Plaintiffs' rights to pretrial liberty and against wealth-based
detention.
The Plaintiffs challenge Defendants' policy and practice of
imposing and enforcing secured financial conditions of release
without affording constitutionally required inquires. The amount of
money a person must pay to secure release is determined without any
inquiry into, or finding concerning, ability to pay, any
consideration of alternative conditions of release, or any findings
concerning the necessity of pretrial detention.
The Defendants' pretrial detention scheme ensures that persons who
have been arrested but are presumptively innocent and are eligible
for release, must remain in jail cells for days, weeks, or even
months solely because they cannot make cash payments. Those who
cannot access enough money to pay the amounts required to secure
their release must remain in jail up to a week before their first
court appearances. During that period, they have no opportunity to
challenge their detention and are not provided counsel. The
Defendants do not hear arguments concerning conditions of release
at Initial Appearance, or in any context other than in response to
bail reduction motions filed by later appointed counsel. These
policies and practices cause people to languish in jail cells every
night simply because they cannot afford to pay for their release,
the Plaintiffs contend.
A copy of the Plaintiffs' motion dated Oct. 5, 2021 is available
from PacerMonitor.com at https://bit.ly/3lyTt0j at no extra
charge.[CC]
The Plaintiff is represented by:
Karra J. Porter, Esq.
Anna P. Christiansen, Esq.
CHRISTENSEN & JENSEN, P.C.
257 East 200 South, Suite 1100
Salt Lake City, UT 84111-2047
Telephone: (801) 323-5000
Facsimile: (801) 355-3472
E-mail: Karra.Porter@chrisjen.com
Anna.Christiansen@chrisjen.com
VENTURE HOME: Lied About Electricity Offset, Class Action Says
--------------------------------------------------------------
Danielle Toth at topclassactions.com reports that Venture Solar
Panel System Class Action Lawsuit Overview:
Who: Consumers lodged a class action lawsuit against solar panel
system providers Venture Home Solar, LLC; Venture Commercial NYC,
LLC; and Venture Solar Commercial, LLC.
Why: Plaintiffs allege they were promised an offset on their
electricity bills if they installed a Venture solar panel system,
but they say they did not get it.
Where: The class action lawsuit is pending in Connecticut federal
court.
Venture Solar, and affiliated panel system providers, promised
consumers a significant offset on their electricity bills, but the
savings never materialized, a class action lawsuit alleges.
Lead plaintiffs Kurt James, Julie Stewart and Zaker Ahmed claim
they did not receive the offset and say the defendants, Venture
Home Solar, LLC; Venture Commercial NYC, LLC; and Venture Solar
Commercial, LLC, ("Venture"), knew or should have known that the
solar systems they were marketing could not provide sufficient
electricity to provide the represented offset.
James, Stewart, and Ahmed also claim that despite numerous
complaints from their consumers, Venture continues to market solar
panel systems with the promise of a substantial, if not complete,
offset of their electricity bills.
Venture Solar Panel System's Promised 'Offset' a No-Show
Plaintiffs' allegations stem from their purchase of solar panel
systems from Venture. The purchase agreements provided by the
defendant promised offsets of more than 100 percent, they say;
however, the plaintiffs say that their electricity bills never
reflected such savings.
James, Stewart and Ahmed say they suffered damages by not receiving
the offset they were promised.
The class action lawsuit accuses Venture and its affiliates of
using a scheme, including "aggressive marketing tactics, referral
bonuses for recruiting new customers, touting high-quality
equipment, aesthetically-pleasing product superior to their
competitors (even so much that they promise $100 savings towards a
solar panel system if a consumer finds a better looking install of
solar panels), boasting outstanding reviews from previous customers
in an effort to attract new customers (even though they know not
all their reviews are in fact outstanding), claiming local
expertise with applicable laws and regulations and touting great
customer service," to induce consumers into installing their solar
panel system.
They claim Venture deceptively marketed solar panel systems with
the promise of a false electricity usage offset in violation of
Connecticut's Consumer Protection Laws (and/or similar statutes in
effect in the other states in which class members reside).
James, Stewart and Ahmed want to represent other consumers in
Connecticut, New York, New Jersey, Rhode Island, Massachusetts and
New Hampshire, who leased or purchased a Venture solar panel system
that never provided the promised electricity bill savings.
Plaintiffs are requesting compensatory, restitutionary, punitive
and treble damages for themselves and all Class Members.
Venture solar systems is far from the first solar power company to
face allegations of false advertising. Genesis California was
accused of deliberately misrepresenting the quality of their solar
panel systems and forcing Spanish-speaking customers sign documents
in English.
Open Energy and SolarBlend paid nearly $700,000 to end a class
action lawsuit over the quality of their solar power tiles.
Have you purchased a Venture solar panel system? Did you see the
promised offset on your electricity bill? Let us know in the
comments!
The plaintiffs are represented by Seth Lesser, Jeffrey Klafter and
Amir Alimehri of Klafter Lesser LLP and Cary L. Flitter and Andrew
M. Milz of Flitter Milz, P.C.
The Venture Solar Panel System False Ad Class Action Lawsuit is
James, et al. v. Venture Home Solar, LLC et al., Case No.
3:21-cv-01306, in the U.S. District Court for the District of
Connecticut. [GN]
VIEW HOMES: Vance FLSA Suit Moved From D. Colorado to W.D. Texas
----------------------------------------------------------------
The case styled TODD VANCE, individually and on behalf of all
others similarly situated v. VIEW HOMES INCORPORATED; ASPEN VIEW
HOMES, LLC; ARMADILLO MANAGEMENT, L.L.C.; RLDC GP, LLC; REPUBLIC
LAND AND DEVELOPMENT COMPANY, LP, f/k/a ARMADILLO CONSTRUCTION
COMPANY, LTD., f/k/a ARMADILLO CONSTRUCTION COMPANY, INC.; and
TRINET HR II, INC., Case No. 1:21-cv-00881, was transferred from
the U.S. District Court for the District of Colorado to the U.S.
District Court for the Western District of Texas on October 12,
2021.
The Clerk of Court for the Western District of Texas assigned Case
No. 5:21-cv-00974 to the proceeding.
The case arises from the Defendants' alleged failure to compensate
the Plaintiff and similarly situated non-exempt employees overtime
pay for all hours worked in excess of 40 hours in a workweek in
violation of Fair Labor Standards Act and the Portal-to-Portal
Act.
View Homes Incorporated is a real estate company based in
Colorado.
Aspen View Homes, LLC is a home construction company based in
Colorado Springs, Colorado.
Armadillo Management, L.L.C. is a limited liability company based
in Texas.
RLDC GP, LLC is a construction company based in Texas.
Republic Land and Development Company, LP, formerly known as
Armadillo Construction Company, Ltd., formerly known as Armadillo
Construction Company, Inc., is a construction company based in
Texas.
Trinet HR II, Inc. is a provider of human resources solutions based
in California. [BN]
The Plaintiff is represented by:
Melinda Arbuckle, Esq.
SHELLIST LAZARZ SLOBIN LLP
11 Greenway Plaza, Suite 1515
Houston, TX 77046
Telephone: (713) 621-2277
E-mail: marbuckle@eeoc.net
- and –
Glenn D. Levy, Esq.
LAW OFFICES OF GLENN D. LEVY
906 West Basse Road, Suite 100
San Antonio, TX 78212
Telephone: (210) 822-5666
E-mail: glenn@glennlevylaw.com
VOLKSWAGEN GROUP: Class Status Hearing Continued to Jan. 7, 2022
----------------------------------------------------------------
In the class action lawsuit captioned as RICARDO R. GARCIA, et al.,
v. VOLKSWAGEN GROUP OF AMERICA, INC., et al., Case No.
1:19-cv-00331-LO-MSN (E.D. Va.), the Hon. Judge Michael S.
Nachmanoff entered an order:
1. continuing hearing on Plaintiffs' forthcoming motion for
class certification to January 7, 2022, at 10:00 a.m.;
2. continuing the Final Pretrial Conference to January 7,
2022, at 10:00 a.m.;
3. directing the Parties to file any Motion for Summary
Judgment on or before February 14, 2022;
4. directing the Parties to file their Oppositions to any
motion for summary judgment on or before March 16, 2022;
5. directing to file any reply in support of any motion for
summary judgment on or before April 4, 2022;
6. scheduling oral argument on any motion for summary
judgment on April 22, 2022, at 10:00 a.m.; and
7. continuing the deadline for pre-trial submissions to April
25, 2022.
Volkswagen Group is the North American operational headquarters,
and subsidiary of the Volkswagen Group of automobile companies of
Germany.
A copy of the Court's order dated Oct. 5, 2021 is available from
PacerMonitor.com at https://bit.ly/3aCDR5w at no extra charge.[CC]
WAUKESHA SCHOOL: Sued for Refusing to Implement COVID-19 Measures
-----------------------------------------------------------------
Caroline Reinwald, writing for WISN 12 News, reports that a parent
has filed a federal class-action lawsuit against the Waukesha
School Board and district superintendent.
In the lawsuit, the parent, whose child attended Rose Glen
Elementary School, said the school board's and superintendent's
"reckless refusal to implement reasonable COVID-19 mitigation
measures, was the direct and proximate cause" to her child getting
COVID-19 from another student and potentially spreading it to their
community.
The lawsuit said the school board and superintendent threw their
child and the rest of the district students into a COVID-19 "snake
pit," by not instating a mask mandate or social distancing.
The lawsuit is fully funded by the Minocqua Brewing Company Super
PAC, according to its founder, Kirk Bangstad.
He owns Minocqua Brewing Company in northern Wisconsin.
Bangstad said he became heavily involved in politics after nearly
losing his brewpub during the pandemic and laying off many of his
employees.
He is known for making progressive beers, hanging a massive
Biden-Harris sign on the side of his building, and said he is now
fielding calls for help from concerned parents around the state.
"I was like, somebody's got to be doing something to stop these
communities from obviously not doing what they should be doing to
keep COVID numbers down," Bangstad said. "(Kids) are basically
vectors for COVID bombs in these towns, once they get out of
school."
When asked why he decided to fund a lawsuit targeting the Waukesha
School District, he said he was approached by the parents.
"These plaintiffs were in the health care industry, so they were
particularly upset that they had been through COVID, helping other
people recover from COVID for the last year and a half and now that
the school district wasn't protecting kids, their kids brought
COVID into their home," Bangstad said. "Waukesha County, there's
more conservative Republicans there than most any other place in
Wisconsin, I do smile a little bit that we're able to get to the
Republican party in this lawsuit as well."
"What would you say to the parents, who may be watching, who don't
want masks required in their school district," asked WISN 12's
Caroline Reinwald.
"I would say, 'What's your problem?' Kids don't have a huge problem
with wearing masks. It's proven science from everyone, except nut
jobs getting their info from fake news, that masks work and prevent
COVID," Bangstad said.
WISN 12 reached out to each member of the Waukesha School Board.
The only one to respond was the clerk, Bill Baumgaurd, who said he
was not available for comment.
Waukesha School District Superintendent Dr. James Sebert sent a
brief emailed response.
"We received a COVID-19 complaint for filing this morning. We have
not been formally served. Immediately, we contacted our attorneys
and on the advice of our counsel, we have been advised not to
respond further at this time," Sebert said.
Bangstad said he hopes the court grants the lawsuit "class action"
status so it can be applied to every Wisconsin school district
without mask mandates.
"We don't want to go to court for this," he said. "We want a judge
to say this is so dangerous, we're going to do a restraining order
or injunction to do what they're supposed to do, put masks on kids
who are too young to get vaccinated." [GN]
WEINSTEIN KAPLAN: Dahan Files FDCPA Suit in E.D. New York
---------------------------------------------------------
A class action lawsuit has been filed against Weinstein, Kaplan &
Cohen, P.C., et al. The case is styled as Esther Dahan, on behalf
of herself and all other similarly situated consumers v. Weinstein,
Kaplan & Cohen, P.C., Robert N. Cohen, Case No. 1:21-cv-05654
(E.D.N.Y., Oct. 11, 2021).
The lawsuit is brought over alleged violation of the Fair Debt
Collection Practices Act.
Weinstein, Kaplan & Cohen, P.C., -- https://www.wkc-law.com/ --
represents New York clients in divorce, business law, employment
law and estate planning.[BN]
The Plaintiff is represented by:
Adam Jon Fishbein, Esq.
ADAM J. FISHBEIN, P.C.
735 Central Avenue
Woodmere, NY 11598
Phone: (516) 668-6945
Email: fishbeinadamj@gmail.com
WELLS FARGO: Court Narrows Claims in Consolidated Securities Suit
-----------------------------------------------------------------
District Judge Gregory H. Woods of the U.S. District Court for the
Southern District of New York issued a Memorandum Opinion and Order
granting in part and denying in part the Defendants' motion to
dismiss the consolidated amended class action complaint in the
lawsuit titled IN RE WELLS FARGO & COMPANY SECURITIES LITIGATION,
Case No. 1:20-cv-04494-GHW (S.D.N.Y.).
In 2018, Defendant Wells Fargo entered into three consent orders
(the "2018 Consent Orders") with federal regulators to rectify
corporate mismanagement under which fraudulent practices had
occurred, including the opening of millions of unauthorized bank
accounts and charging hundreds of thousands of borrowers for
unnecessary insurance without their consent. The Federal Reserve
Board issued one of the 2018 Consent Orders (the "2018 FRB Consent
Order"), which included an asset cap (the "Asset Cap") prohibiting
Wells Fargo from expanding its assets until it had complied with
the 2018 FRB Consent Order's requirements. Two other consent orders
were issued by the Office of the Comptroller of the Currency (the
"OCC"), and the Consumer Financial Protection Bureau (the "CFPB").
Investors were concerned about the ramifications of the 2018
Consent Orders--and the Asset Cap in particular--on Wells Fargo's
viability as a bank and its stock value, and they monitored the
Bank's compliance with the 2018 Consent Orders. Those investors
include the lead plaintiffs in this action, Handelsbanken Fonder
AB, Public Employees' Retirement System of Mississippi, the Rhode
Island Office of the General Treasurer on behalf of the Employees'
Retirement System of Rhode Island, and the Louisiana Sheriffs'
Pension & Relief Fund (together, the "Lead Plaintiffs").
In 2018 and 2019, after the 2018 Consent Orders were issued, Wells
Fargo's senior executives and directors (the "Individual
Defendants," and together with Wells Fargo, the "Defendants") made
certain statements that the Lead Plaintiffs argue misleadingly
represented the status of Wells Fargo's compliance with the orders.
Specifically, the Lead Plaintiffs argue that the Defendants'
statements conveyed that Wells Fargo had passed Stage 1 and was
focused on the later execution stages, when in reality, Wells Fargo
had submitted multiple Stage 1 Plans, which were rejected by the
regulators.
Furthermore, the Lead Plaintiffs assert that Wells Fargo misled its
investors about the timeframe for lifting the Asset Cap, and gave
an unrealistically short timeframe, when it knew that the removal
would be significantly delayed based on the multiple extensions
that Wells Fargo had requested and received, and the unfavorable
feedback that the regulators had given on Wells Fargo's proposed
plans and timelines. The Lead Plaintiffs claim that when the public
learned of Wells Fargo's failure to satisfy the 2018 Consent
Orders' requirements, the price of its stock dropped
precipitously.
The Lead Plaintiffs have brought this securities class action on
behalf of other similarly situated investors, who purchased or
acquired Wells Fargo securities between Feb. 2, 2018, and March 12,
2020 (the "Class Period"). They allege that the Defendants violated
Section 10(b) of the Securities Exchange Act of 1934 (the "Exchange
Act") and Rule 10b-5, and that the Individual Defendants violated
Section 20(a) of the Exchange Act.
Discussion
A. Section 10(b) and Rule 10b-5 Liability
Judge Woods finds that the Lead Plaintiffs have plausibly alleged
that certain of the Defendants' statements were made in violation
of federal securities laws. To survive a defendant's motion to
dismiss a claim brought under Section 10(b) and Rule 10b-5, a
plaintiff must plausibly plead these elements: (1) a material
misrepresentation (or omission); (2) scienter, i.e., a wrongful
state of mind; (3) a connection with the purchase or sale of a
security; (4) reliance; (5) economic loss; and (6) loss causation,
Judge Woods explains, citing Kleinman v. Elan Corp., plc, 706 F.3d
145, 152 (2d Cir. 2013) (citing Dura Pharm., Inc. v. Broudo, 544
U.S. 336, 341-42 (2005)).
The Defendants argue that the Lead Plaintiffs have failed to set
forth particularized allegations that the challenged statements
were materially false or misleading when made, or that the
Defendants acted with fraudulent intent, as required by the first
and second elements.
The Consolidated Amended Complaint ("CAC") alleges that the
Defendants made numerous false and misleading statements during the
Class Period. In several of the challenged statements, the Lead
Plaintiffs have relied on selective quotations.
Judge Woods finds that the facts alleged by the Lead Plaintiffs
show that there was no basis for Mr. Shrewsberry's expectations
about the timeline under the consent order. In fact, communications
with the Regulators indicated that the Bank would need even more
time to fully comply with the orders than originally anticipated.
Here, the Lead Plaintiffs have clearly identified specific material
facts that conflict with Mr. Shrewsberry's statement: the month
before the Morgan Stanley Financials Conference, Wells Fargo
received May 7, 2018 Rejection Letter, which stated that the Bank's
initial plans were insufficient and so materially incomplete that
they could not be evaluated by the Federal Reserve staff for their
adequacy because the Bank had failed to include proposed milestones
and timelines for compliance, as required by the consent order.
In that letter, the Federal Reserve ordered Wells Fargo to resubmit
its Stage 1 proposal within 90 days (by July 2, 2018), and on June
5, 2018, the Bank requested an extension to Sept. 19, 2018. Based
on that context, the Lead Plaintiffs have adequately pleaded that
Mr. Shrewsberry's opinions are actionable because they omitted
facts that conflicted with his statements; a reasonable investor
would understand from the questions asked and Mr. Shrewsberry's
responses that the facts on the ground supported his expected
timeline, Judge Woods opines.
The Lead Plaintiffs assert that Mr. Sloan's statements are
actionable because after Investor Day, Wells Fargo had requested
and received an extension for the resubmission of its Stage 1
Plans, which was a material update. The Lead Plaintiffs further
assert that Mr. Sloan's statement regarding when the Asset Cap
would be lifted was misleading because of the extension and, when
rejecting Wells Fargo's Stage 1 Proposal, the Federal Reserve had
also told the Bank on April 3, 2018, that its proposed timeline was
not realistic or sound.
Judge Woods holds that Mr. Sloan's statement that there had been
"no change" since Investor Day is actionable. Furthermore, even if
Mr. Sloan's statement was literally true--which it was not--a
reasonable investor would have been misled by that representation
because the Bank did not inform its investors of the May 7, 2018
Rejection Letter, a key update on the timing of the Asset Cap,
during Investor Day, the Judge notes.
The fact that the Bank warned investors at the outset of the call
that it might make forward-looking statements does not save it from
liability, Judge Woods holds. Judge Woods explains that the PSLRA's
safe harbor for such statements applies when the statements are
accompanied by "meaningful" cautionary language, so to avail
themselves of the safe harbor, "defendants must demonstrate that
their cautionary language was not boilerplate and conveyed
substantive information." The Lead Plaintiffs have adequately
alleged that the "warnings" "did not expressly warn of or did not
directly relate to the risk" that resulted in their loss.
Accordingly, Mr. Sloan's statement that there was "nothing new to
report" was misleading.
Judge Woods also holds, among other things, that Mr. Parker's May
2019 statements survive the Defendants' motion to dismiss; Ms.
Duke's statement that the Bank and the Regulators had reached a
"good understanding" is actionable, but her remaining statements
during the September 2019 conference are not; and Mr. Shrewsberry's
statements at the December 2019 Goldman Sachs conference are
actionable.
For the reasons described, the Lead Plaintiffs have adequately
alleged that certain statements made by Messrs. Shrewsberry, Sloan,
and Parker and Ms. Duke were materially false or misleading, Judge
Woods rules. However, the Lead Plaintiff has failed to adequately
allege that the remaining statements violated federal securities
laws. Accordingly, the Lead Plaintiffs' Section 10(b) and Rule
10b-5 claim against Defendant Duke is dismissed.
For the statements made by Messrs. Shrewsberry, Sloan, and Parker
and Ms. Duke that have survived the Defendants' motion to dismiss,
the Lead Plaintiffs have adequately alleged that the speakers had
the requisite scienter when making those statements, Judge Woods
holds.
B. Control Person Liability Under Section 20(a)
First, the Defendants assert that the control person claims should
be dismissed because the Lead Plaintiffs have failed to allege a
primary violation of section 10(b) or rule 10b-5. For the reasons
he stated, Judge Woods holds that the Lead Plaintiffs have pleaded
primary violations against Wells Fargo and Messrs. Shrewsberry,
Sloan, and Parker, and Ms. Duke. Therefore, that argument fails.
Second, the Defendants argue that the Lead Plaintiffs have failed
to allege the remaining elements for their control person liability
claims. The Court's determinations as to the scienter of Messrs.
Shrewsberry, Sloan, and Parker and Ms. Duke also establish that the
CAC contained enough facts to demonstrate that the culpable
participation requirement for Section 20(a) as to those Defendants
has been satisfied.
The remaining question as to those Defendants is whether the Lead
Plaintiffs have sufficiently pleaded facts to support the control
person element. Here, the Lead Plaintiffs have specifically alleged
that Messrs. Shrewsberry, Sloan, and Parker and Ms. Duke issued the
actionable statements, that they had the power and authority to
cause Wells Fargo and its employees to engage in the wrongful
conduct alleged herein, were involved in the day-to-day operations
of the Bank, interacted with Regulators in negotiating and
responding to the 2018 Consent Orders, and had primary
responsibility for ensuring the Bank's compliance with the 2018
Consent Orders.
Furthermore, the Lead Plaintiffs assert that those Defendants had
access to the nonpublic information that contradicted their
statements, including the rejections from the Regulators. These
allegations, which amount to more than a description of Messrs.
Shrewsberry, Sloan, and Parker's titles, describe their personal
involvement with the fraud alleged. Therefore, the Lead Plaintiffs'
Section 20(a) claims against Messrs. Shrewsberry, Sloan, and Parker
survive dismissal.
As for the allegations against Mr. Scharf, the complaint alleges
facts that suggest that he exercised "control" over Wells Fargo.
However, with regard to the statements that have survived the
Defendants' motion to dismiss, the Lead Plaintiffs have failed to
allege that Mr. Scharf acted with any culpability in connection
with their dissemination, Judge Woods finds. Accordingly, the
Plaintiffs' Section 20(a) claims against Defendant Scharf are
dismissed.
Conclusion
The Defendants' motion to dismiss the consolidated amended class
action complaint is granted in part and denied in part. The Lead
Plaintiffs have requested that if the Court granted any part of the
Defendants' motion, that they be granted leave to replead their
amended complaint.
The Federal Rules of Civil Procedure provide that courts should
"freely give" leave to amend "when justice so requires," Fed. R.
Civ. P. 15(a)(2), and "[d]istrict courts typically grant plaintiffs
at least one opportunity to plead fraud with greater specificity
when they dismiss under Rule 9(b)." Accordingly, the consolidated
amended class action complaint is dismissed in part, without
prejudice.
The Clerk of Court is directed to terminate the motion pending at
Dkt. No. 89.
A full-text copy of the Court's Memorandum Opinion and Order dated
Sept. 30, 2021, is available at https://tinyurl.com/hurd95yy from
Leagle.com.
WESTCO CHEMICALS: Draney's Bid to Certify Settlement Class Denied
-----------------------------------------------------------------
In the case, DANIEL DRANEY and LORENZO IBARRA, individually and on
behalf of all others similarly situated, Plaintiffs v. WESTCO
CHEMICALS, INC., et al., Defendants, Case No. 2:19-cv-01405-ODW
(AGRx) (C.D. Cal.), Judge Otis D. Wright, II, of the U.S. District
Court for the Central District of California:
(i) denies the Plaintiffs' Motion to Certify Settlement
Class; and
(ii) denies as moot the Plaintiffs' Motion for Preliminary
Approval of Class Action Settlement, both without
prejudice to filing an amended motion after revising the
class or other aspects of the settlement pursuant to the
Court's concerns.
Background
Plaintiffs Daniel Draney and Lorenzo Ibarra are employees of
Defendant Westco, whose principals are Defendants Ezekiel
Zwillinger and Steven Zwillinger. In their First Amended Complaint,
the Plaintiffs participated in Westco's 401(k) Plan, a
defined-contribution, individual account pension plan subject to
the Employee Retirement Income Security Act ("ERISA"), 29 U.S.C.
Sections 1001-1461. They allege that throughout most of the 2010s,
the Zwillingers, as Westco's principals, invested the 401(k) Plan
funds exclusively in low-interest-bearing certificates of deposit
("CDs"), failing to diversify the investments or otherwise
construct a proper investment platform. The Plaintiffs allege that
Westco employees missed out on over $1 million of collective fund
growth as a result.
Based on these and related allegations, the Plaintiffs assert
individual and class claims against Westco and Ezekiel and Steven
Zwillinger for 1) breach of duty of prudence, 29 U.S.C. Section
1104(a)(1)(B); 2) breach of duty of loyalty, 29 U.S.C. Section
1104(a)(1)(a); and 3) failing to administer the plan in accordance
with its terms, 29 U.S.C. Section 1103.
The parties reached a settlement, and the Plaintiffs moved for
certification of a class and preliminary approval of the
settlement. In their Motion for Class Certification, the Plaintiffs
presented many of the same arguments they present in the instant
motion in support of class certification for settlement purposes.
They argue that the commonality, typicality, and adequacy
requirements are satisfied because Ezekiel and Steven Zwillinger,
as Plan fiduciaries, made the same poor investment decisions with
respect to the entire employee class, including the named
Plaintiffs.
The Defendants filed a brief in response to the Motion for Class
Certification. Though an "Opposition" in name, in reality the
Defendants' brief is a near-complete concession to class
certification. Westco conceded that class certification was
substantively appropriate and rather half-heartedly argued that the
class certification motion should have been disregarded as
untimely. It did not argue against certification of a class based
on the statute of limitations.
Discussion
Judge Wright first addresses the Plaintiffs' request for settlement
class certification. He denies class certification, which is
technically grounds to deny preliminary approval without further
analysis. To assist the parties, however, the Judge also outlines
his principal concerns with the settlement itself.
Judge Wright has substantial concerns about whether the settlement
is fair to certain class members, and moreover, the evidence of
damages is insufficient for the Court to preliminarily determine
whether the settlement is reasonable. Moreover, the notice to the
class needs to provide more information about individual recovery.
In most situations, unless the settlement is clearly inadequate,
its acceptance and approval are preferable to lengthy and expensive
litigation with uncertain results," Judge Wright concludes citing
DIRECTV, 221 F.R.D. at 526 (quoting 4 A Conte & H. Newberg, Newberg
on Class Actions, Section 11:50 at 155 (4th ed. 2002)). The Judge
emphasizes that class disposition of this matter may very well be
appropriate and notes that, by its back-of-the-napkin calculations
based on the data presented, nothing in the record suggests the
total settlement amount of $500,000 is patently or necessarily
unreasonable. As a broad proposition, class disposition of the
matter appears favorable, and the Judge acknowledges and
appreciates the diligent efforts of the class counsel, as officers
of the Court, to craft a settlement that is fair to all class
members.
Disposition
For now, Judge Wright denies the Plaintiffs' Motion to Certify
Settlement Class and denies as moot the Plaintiffs' Motion for
Preliminary Approval of Class Action Settlement, both without
prejudice to filing an amended motion after revising the class or
other aspects of the settlement pursuant to the Court's concerns.
If proceeding with an amended motion, Judge Wright directs the
Plaintiffs to schedule the hearing on their amended motion at least
two months after the date they file it. This is so the Court has
sufficient time to review the settlement prior to the hearing date.
The Court will hold a hearing, if necessary, to address any
remaining issues in real time so as to avoid the need for further
motion practice.
A full-text copy of the Court's Sept. 29, 2021 Order is available
at https://tinyurl.com/3h4tpxp9 from Leagle.com.
WILL COUNTY, IL: Class of Detainees Certified in Walsh v. WCADF
---------------------------------------------------------------
In the case, DEREK WALSH, et al., individually and on behalf of all
others similarly situated, Plaintiffs v. MIKE KELLEY, in his
official capacity as Sheriff of Will County, Illinois, and WILL
COUNTY, ILLINOIS, Defendants, Case No. 17-cv-05405 (N.D. Ill.),
Judge Andrea R. Wood of the U.S. District Court for the Northern
District of Illinois, Eastern Division, grants the Plaintiffs'
motion for certification of a plaintiff class.
Background
Plaintiffs Derek Walsh, Shane Mitchell, Terrell Hill, Brian
Engelsman, and William Hinton sued Mike Kelley, in his official
capacity as Sheriff of Will County, and Will County itself under 42
U.S.C. Section 1983 on behalf of themselves and a putative class.
The Plaintiffs allege that various policies implemented and
enforced at the Will County Adult Detention Facility ("WCADF")
violate their rights under the First Amendment to the United States
Constitution.
The Plaintiffs are current and former prisoners at the WCADF.
Hinton is currently a pretrial detainee, and the others were
formerly detained there. The Plaintiffs allege that Defendant
Kelley has implemented policies at the WCADF that "restrict
detainees' access to reading materials and their ability to
communicate with individuals outside of the jail."
The challenged policies include unreasonable delays in processing
incoming and outgoing mail and a ban on: (1) newspaper clippings,
articles, and any materials "printed from the internet;" (2)
receiving mail that has a P.O. box listed as the return address;
(3) all newspapers except one copy of USA Today that all detainees
share; (4) the publication Prison Legal News; and (5) photos or
other materials determined to be "inappropriate" by mailroom
staff.
The Plaintiffs claim that these practices violate their First
Amendment rights. For their part, the Defendants admit the
existence of the policies, except for unreasonable delays in
processing mail.
The Plaintiffs have moved to certify a class under Rule 23(b)(2)
consisting of "all individuals presently or in the future detained
at the Will County Adult Detention Facility ("the jail") who are
subjected to the restrictions on reading materials and unreasonable
delays in their incoming and outgoing mail challenged in
Plaintiffs' Third Amended Complaint."
On behalf of the putative class, the Plaintiffs seek a declaratory
judgment that the relevant policies violate the First Amendment and
an injunction prohibiting the enforcement of those policies.
Discussion
I. Class Definition
Judge Wood first addresses whether the class proposed by the
Plaintiffs is sufficiently ascertainable. The proposed class
consists of "all individuals presently or in the future detained in
the WCADF who are subjected to the restrictions on reading
materials and unreasonable delays in their incoming and outgoing
mail challenged in Plaintiffs' TAC."
The Defendants contend that the Court cannot certify the proposed
class because it is not sufficiently definite or ascertainable. In
so arguing, they rely on a Seventh Circuit case concluding that
vagueness in class definitions "is a problem because a court needs
to be able to identify who will receive notice, who will share in
any recovery, and who will be bound by a judgment."
Judge Wood concludes that the proposed class is sufficiently
definite in the case. She says, a class of present and future
detainees subjected to the relevant policies can certainly be
ascertained because -- by the Defendants' own admission -- the
policies are applied to all detainees at the WCADF. The Defendants
do not contend that their policies apply to some, but not all,
detainees at the WCADF. Therefore, a detainee's presence at the
WCADF -- at present or in the future -- is an objective criterion
for determining who is a member of the class. The class can be
ascertained by reference to the Defendants' records and is
therefore sufficiently definite.
II. Requirements of Rule 23(a)
Turning next to the requirements of Rule 23(a), that provision
imposes four prerequisites for class certification: "numerosity,
commonality, typicality, and adequacy of representation."
First, Judge Wood finds that the Plaintiffs' proposed class meets
Rule 23(a)'s numerosity requirement. The efendants in the case do
not challenge the numerosity of the proposed class. Although the
Plaintiffs did not include any supporting affidavits or documents
regarding the number of potential class members, their motion does
include the link to the online Will County Inmate Search database.
A search of that database indicates that there are currently 592
detainees at the WCADF. The class clearly has more than 40 members,
and likely includes hundreds of people.
Second, the Plaintiffs have identified a list of common questions
in their complaint and motion. Rather than explain why those
questions are not common to the class members, the Defendants
contend that the Plaintiffs' motion "assumes without evidence that
commonality is satisfied."
Judge Wood, however, finds that the Plaintiffs have posed common
questions of law or fact. Questions that meet the commonality
requirement include whether the WCADF has violated the First
Amendment through its policies banning newspaper clippings and
material printed from the internet, the receipt of mail which has a
P.O. Box as the return address, and the publication Prison Legal
News, as well as the question of whether the WCADF has implemented
policies to process incoming and outgoing mail in a reasonably
timely fashion. Those questions are common to the members of the
proposed class, and the answers could determine whether injunctive
relief is appropriate on a classwide basis. Therefore, the proposed
class satisfies the commonality requirement, Judge Wood holds.
Third, the Defendants argue that Rule 23(a)(3) has not been
satisfied in the case because "not every Plaintiff is challenging
every policy" and "each detainee's case would be quite different
depending on how the alleged policy affected them individually."
Those two points do not demonstrate that the named Plaintiffs'
claims are atypical of the unnamed class members' claims, Judge
Wood opines. She concludes that the named Plaintiffs' claims are
sufficiently typical of the class members' claims. The entire
putative class and each named Plaintiff who seeks to become a class
representative are, or have been, detainees at the WCADF and
therefore subject to the same challenged policies. The named
Plaintiffs' claims and the unnamed class members' claims are based
on the same legal theory -- that the Defendants' practices violate
their First Amendment rights. And the named Plaintiffs' claims are
based on conduct by Defendants that affects both the named
Plaintiffs and the unnamed class members in very similar ways. The
policies that the Plaintiffs challenge apply to the whole class of
detainees at the WCADF, and there is no reason to think that the
named Plaintiffs' claims substantially differ in kind from claims
that the unnamed class members could bring.
Fourth, Judge Wood concludes that the Plaintiffs have established
that the representative parties will fairly and adequately protect
the interests of the class. She also concludes that the proposed
class counsel is adequate. They are experienced counsel with a
history of litigating civil rights cases in the District. There is
no reason to think that they will not be zealous advocates for the
proposed class in the case. Therefore, the Plaintiffs have met the
adequacy requirement of Rule 23(a)(4).
III. Requirements of Rule 23(b)(2)
To have their proposed class certified under Rule 23(b)(2), the
Plaintiffs must show that "the party opposing the class has acted
or refused to act on grounds that apply generally to the class, so
that final injunctive relief or corresponding declaratory relief is
appropriate respecting the class as a whole."
Judge Wood opines that the Defendants incorrectly assert that the
"Plaintiffs seek certification pursuant to Rule 23(b)(3)" and
contend that the requirements of predominance and superiority have
not been met. But the Plaintiffs only seek certification under Rule
23(b)(2), so the Defendants' arguments regarding Rule 23(b)(3) are
irrelevant and are not addressed. Also, the injunctive relief is
likely to be appropriate for either all detainees at the WCADF
subject to the challenged policies or none of them, which makes the
remedy the Plaintiffs seek indivisible. Given the indivisible
nature of the proposed remedy and the Plaintiffs' exclusive focus
on injunctive relief for a violation of constitutional rights,
Judge Wood finds that the proposed class satisfies Rule 23(b)(2).
Conclusion
For the foregoing reasons, Judge Wood granted the Plaintiffs'
motion for Rule 23(b)(2) class certification. She certifies the
following plaintiff class pursuant to Federal Rule of Civil
Procedure 23(b)(2): "All individuals presently or in the future
detained in the Will County Adult Detention Facility ("the jail")
who are subjected to the restrictions on reading materials and
unreasonable delays in their incoming and outgoing mail challenged
in Plaintiffs' Third Amended Complaint."
Judge Wood appoints William Hinton, Shane Mitchell, and Terrell
Hill as the class representatives, and attorneys Adele Nicholas and
Mark Weinberg as the class counsel.
A full-text copy of the Court's Sept. 29, 2021 Memorandum Opinion &
Order is available at https://tinyurl.com/prunbv3j from
Leagle.com.
WISCONSIN DOLLS: Initial Pretrial Conference Order Entered in Pike
-------------------------------------------------------------------
In the class action lawsuit captioned as DEANNA PIKE, individually
and on behalf of all others similarly situated, v. WISCONSIN DOLLS,
LLC., et al., Case No. 3:21-cv-00356-jdp (W.D. Wisc.), the Hon.
Judge Stephen L. Crocker entered a preliminary pretrial conference
order as follows:
1. Motion for Preliminary Class Certification: December 10,
2021
Briefing will proceed on a 21/7 response/reply cycle.
2. Amendments to the pleadings: January 7, 2022
3. Disclosure of all experts: To be Determined by the
Parties.
4. Motion & Brief To Decertify Class: April 1, 2022
This is the deadline for plaintiffs to seek certification
of a Rule 23 class or for defendant to seek
decertification of a conditional FLSA class. Briefing will
proceed on a 21/7 response/ reply cycle.
5. Discovery Cutoff: August 1, 2022
All discovery in this case must be completed by the date
set forth above, absent written agreement of all parties
to some other date. Absent written agreement of the
parties or a court order to the contrary, all discovery
must conform with the requirements of Rules 26 through 37.
Rule 26(a)(1) governs initial disclosures unless the
parties agree in writing to the contrary.
6. Deadline for filing dispositive motions: September 2, 2022
7. Settlement Letters: January 13, 2023
Not later than this date, each party must submit a
confidential settlement letter to the clerk of court at
clerkofcourt@wiwd.uscourts.gov. The letter should set
forth the terms and conditions upon which that party would
settle this case.
8. Rule 26(a)(3) Disclosures and all motions in limine:
January 27, 2023
Objections: February 10, 2023
9. Final Pretrial Conference: February 22, 2023 at 4:00 p.m.
10. Trial: March 6, 2023 at 9:00 a.m.
A copy of the Court's order dated Oct. 5, 2021 is available from
PacerMonitor.com at https://bit.ly/3lA2ZQO at no extra charge.[CC]
WISCONSIN: Lawsuit Filed for Failing to Protect Kids From COVID-19
------------------------------------------------------------------
Corrinne Hess and Rob Mentzer at wpr.org report that Minocqua
Brewing Company's super PAC is planning to fund federal class
action lawsuits against Wisconsin school districts that brewery
owners say aren't following guidelines to protect children against
COVID-19.
The first lawsuit was filed in Wisconsin's Eastern District against
the Waukesha School District alleging children who've been wearing
masks have contracted COVID-19 because their classmates are going
to school unmasked while having symptoms. The Waukesha School Board
voted May 12 to end many of their COVID-19 mitigation policies
including universal masking.
Minocqua Brewery owner Kirk Bangstad said a class of defendants are
being compiled and another class action lawsuit will be filed in
Wisconsin's Western District.
"Basically, every school district that is not Milwaukee, Madison or
some others that have had the courage to do which is right, which
is few and far between in the state of Wisconsin," Bangstad said.
Bangstad said he became interested in this topic about three weeks
ago, when he heard from a school board member in Hudson who is
facing a recall election after saying children should wear masks.
Bangstad soon realized this is a hot-button issue across the state
and nation.
He said filing the first lawsuit against the Waukesha School
District was not a political decision. He asked parents, via the
brewery's Facebook page, to tell their stories. One of the most
compelling stories came from Shannon Jensen.
Jensen is named in the class action lawsuit as she's representing
all K-12 parents in the Waukesha School District case.
Jensen, whose children go to Rose Glenn Elementary School, said her
kids continued to wear masks when they returned to school in
September - even though they weren't required.
On Sept. 16, one of her children's classmates came to school with
COVID-19 symptoms and was not wearing a mask, according to the
lawsuit. The next day, that same student visited the school nurse
twice and was eventually sent home due to his COVID-19 symptoms.
Jensen's child was seated next to the student both days.
On Sept. 19, Jensen's child tested positive for COVID-19, according
to the lawsuit.
The lawsuit alleges the school board and the Waukesha School
District have thrown students into the COVID-19 "snake pit" and
have violated the 14th Amendment that ensures the right to be safe
from state created dangers while in school.
Waukesha Superintendent James Sebert said in an email to WPR that
the district received the complaint but hadn't been formally
served.
"We contacted our attorneys and on the advice of our counsel, we
have been advised not to respond further at this time," Sebert
wrote.
Bangstad's super PAC has raised more than $50,000 to pay lawyers,
infectious disease experts and epidemiologists, which he said will
work around the clock to prepare the case.
"If we get a temporary injunction in a few weeks, that money we
raised might be enough and could buy Wisconsin schools a few months
until the FDA approves the vaccine for children, at which point we
wouldn't need to continue the lawsuit," Bangstad wrote on his
Facebook page.
Bangstad started his super PAC on Jan. 4, two days before the
insurrection at the U.S. Capitol. He said he did so after U.S. Sen.
Ron Johnson and U.S. Rep. Tom Tiffany voted against a stimulus
package that would have helped restaurants and bars, including his
own.
"Then Jan. 6 happened, and those two guys also said the election
was fraudulent, and I felt they incited the insurrection and were
traitors to our country," Bangstad said. "I said let's get rid of
these guys and make Northern Wisconsin progressive."
The state Republican Party has fired back. On Sept. 29, Jordan
Moskowitz, political director with the Wisconsin GOP filed a
complaint with the Federal Elections Commission alleging Bangstad
is personally profiting from the super PAC.
Bangstad said there's nothing in that complaint worth responding
to.
"It's an obvious way to deflect from the good that we're doing
trying to protect kids and Wisconsin communities by slinging mud at
me and the super PAC," Bangstad said. [GN]
WOOLWORTHS LTD: Settles Employees' Class Action for $50 Million
----------------------------------------------------------------
Samuel Yang at abc.net.au reports that Woolworths has provisionally
settled a class action lawsuit filed against it by a Canberra law
firm in 2019 for underpaying some of its staff.
This adds up to around $50 million in payments to former staff,
covering a period from 2010-2013, and is in addition to the class
action settlement, previous repayments and a current Fair Work
Ombudsman action against the firm.
The company said it plans to make the payments before Christmas.
But it did not disclose the final settlement figure for the class
action.
In November 2019, a class action was filed by Adero Law on behalf
of Woolworths employees after the company admitted underpaying
thousands of its workers as much as $300 million over the past
decade.
Woolworths says payments are 'beyond legal obligations'
Woolworths Group chief executive Brad Banducci said the company was
pleased to have settled the class action proceedings.
"This will ensure that our approach to full remediation can be
appropriately addressed through the [Fair Work Ombudsman]
proceedings," he said in a statement.
"We said at the outset that we would extend our review beyond our
legal obligations and look back to 2010.
"With detailed analysis challenging in the earlier years, we felt
an equal and broad-based payment to all potentially impacted team
members was a fair and equitable way to approach remediation for
this period."
A separate legal action against the company is still underway.
In June, the Fair Work Ombudsman (FWO) took Woolworths to court in
relation to "major underpayments" of its salaried managers.
The FWO alleged the underpayments for those 70 individual managers
ranged from $289 to $85,905, during the one-year timeframe it
analysed.
It is believed that the Woolworths underpayments will be the
biggest such case in Australia.
Woolworth is just one of a long list of major employers that have
underpaid their workers, including Wesfarmers, Qantas, the
Commonwealth Bank, Super Retail Group, Michael Hill Jewellers and
the Australian Broadcasting Corporation (ABC).
A spokesperson from the FWO told the ABC that it is not appropriate
for it to comment as the matter is before the court.
The ABC has approached Adero Law for comment. [GN]
[*] Australian Class Action Funding Reform May Limit Competition
----------------------------------------------------------------
Hannah Wootton, writing for The Australian Financial Review,
reports that the sweeping changes to class action funding proposed
by the Morrison government risk more competing cases, defence
lawyers running "scorched earth defences", and reduced competition
between firms and funders, lawyers warn.
They could also inadvertently increase the power of large plaintiff
law firms by trying to stop "cosy relationships" between legal
outfits and litigation funders, they say.
The criticisms come as the one-week consultation period for the
proposed reforms ends, and build on pushback from lawyers on both
sides of the class action divide and from litigation funders.
Under the proposal, class action funders and lawyers will be
restricted to a maximum 30 per cent of any payout in a move the
government hopes will curb "disproportionate" returns at the
expense of ordinary Australians involved in claims.
It will give judges enhanced power to approve or vary the share of
proceeds and could put an end to common fund orders by requiring
plaintiffs to consent to being members of a class action litigation
funding scheme before funders can impose their fees or commission
on them.
The reforms follow a spate of high-profile class actions where
judges slammed litigation funders and law firms for taking the
lion's share of settlement proceeds.
But while company director and employer groups have welcomed the
reforms, Herbert Smith Freehills partner Jason Betts said he was
"worried" they would result in more competing class actions.
Risk of 'copycat proceedings'
The practice of multiple plaintiff firms bringing actions over the
same issue is one the government is seeking to stop, as it drives
up legal costs and clogs up the courts.
Mr Betts cautioned that the removal of common fund orders may mean
funders instead focus on smaller "closed" class actions of a set
group of possible claimants.
This could result in "copycat proceedings" brought by those
excluded from settled actions, leading to "a 'whack-a-mole' game,
where resolving the issue of excessive funding returns actually
creates a new problem for defendants in achieving finality when
settling funded class actions", he said.
Quinn Emanuel partner Damian Scattini said the reforms would reduce
competition, which would result in commission rates for funders
going up.
Several lawyers and funders have said increased competition from
growing plaintiff firms and overseas funding outfits was already
driving down the cost of class actions, suggesting this could help
improve plaintiffs' settlement cuts without reform.
Scorched earth defence
Mr Scattini also warned that the 30 per cent cap on legal fees
could motivate defence lawyers to run unnecessarily complex cases,
in the knowledge that plaintiff lawyers could not afford the cost
of fighting them.
"Clever defence lawyers - and they are all clever - will have an
incentive to run a scorched earth defence, taking every expensive
point that is available to them," he said.
"As the plaintiff addresses these, inevitably the costs escalate
and that will manufacture a situation where the interests of the
client, their lawyers and the funder will no longer align.
"Exactly how this would be in keeping with the court's overarching
purpose -- the just, quick and cheap resolution of disputes -- is
beyond us."
King & Wood Mallesons partner Justin McDonnell said there was a
"sleeper issue" in the reforms that could result in large plaintiff
law firms such as Maurice Blackburn and Slater + Gordon further
entrenching their market power.
Justin McDonnell sees "a sleeper issue" in the proposed reforms.
The proposed rules stop lawyers from having "a material financial
interest" in Australian financial services licensees while working
on a matter involving them and, if they have such an interest,
requires that the licensee makes them immediately relinquish it.
It follows new rules introduced by the government last year
requiring litigation funders to hold such a licence.
To Mr McDonnell, these reforms were targeted at "stopping cosy
relationships between funders and law firms in their tracks".
He said they would stop law firms having "friendly funders" in
which they held an interest, thereby cutting off a possible revenue
avenue for firms and funders alike.
But in reality, he said, this would result in smaller plaintiff law
firms being pushed out of the market as their funding options dried
up.
"If you were a law firm, you'd be looking at it and saying I can't
be a promoter [or "build the book" of class members], I can't take
a material interest in the funder, so what can I really do to pay
for it?
"All that's really left is contingency fees, and to be able to do
that as a law firm you need a pretty good balance sheet.
"These things can run for three or four years and that's a long
time to carry a work in progress, and the obligation to pay experts
and barristers without getting any return goes with that."
Realistically, he said, only the biggest plaintiff law firms would
be able to carry this cost.
Mr Betts suggested a more sophisticated means of limiting funders'
profits could involve factoring in their overall costs.
"An alternative might be to regulate the funder's return on
investment as a percentage of costs, rather than overall caps on a
settlement distribution," he said.
"The government could make a value judgment on how much profit
funders should extract from our legal system." [GN]
[*] Baker McKenzie Provides Global Dispute Resolution Update
------------------------------------------------------------
Baker McKenzie released its Global Dispute Resolution - September
2021 report.
China
Significant reforms of arbitration legislation proposed
Draft revisions to China's Arbitration Law have been published. The
proposed reforms would significantly alter the legislative
landscape in China, modernizing laws that have been largely
unaltered since their enactment in 1994 and bringing them into line
with international best practice. This includes permitting foreign
arbitration institutions to establish operations in Mainland China
and "conduct foreign-related arbitration business;" permitting
parties to a Chinese-seated arbitration to submit their
"foreign-related commercial disputes" to ad hoc arbitration;
recognition of the kompetenz-kompetenz doctrine that the tribunal
can determine its own jurisdiction; and empowering tribunals to
grant interim measures. The consultation period has now closed and
the publication of the final text is awaited.
China
Hong Kong and Mainland China enhance law on mutual enforcement of
arbitral awards
New provisions on the mutual enforcement of arbitral awards between
Hong Kong and Mainland China have come into force. A framework on
mutual enforcement on arbitral awards between the two jurisdictions
was signed in November 2020 but several key provisions only took
effect at the end of May 2021. These include allowing award
creditors to apply for enforcement of an award simultaneously in
the Mainland and Hong Kong; creditors seeking enforcement in the
Mainland may apply for preservation or mandatory measures before or
after the Mainland court's acceptance of an enforcement
application; and that all arbitral awards made in the Mainland can
now be enforced under the Arrangement.
Hong Kong
Non-compliance with pre-condition to arbitration is a question of
admissibility, not jurisdiction
The Hong Kong High Court has found that a party's failure to comply
with a pre-condition to arbitration contained in the arbitration
agreement was a question of admissibility, not a question of the
jurisdiction of the arbitral tribunal. The case involved a
challenge to an arbitral award based on an allegation that an
escalation clause in the arbitration agreement had not been
complied with. Upholding the award, the court ruled that it is for
the tribunal to determine whether the party has complied with
pre-conditions to arbitration, and not for the courts to interfere
with those conclusions. The judgment has implications for the
significant number of commercial contracts in Hong Kong and beyond
containing escalation clauses.
India
Emergency arbitration awards enforceable in India
The Supreme Court of India has ruled that emergency arbitral awards
are recognized under Indian law and may be enforced. Section 17 of
India's Arbitration and Conciliation Act 1996 makes provision for
interim awards by a tribunal but does not explicitly mention
emergency awards. The present case concerned an award issued by an
emergency arbitrator in a Dehli-seated arbitration under SIAC
arbitration rules. Overturning a stay against enforcement of the
award issued by a lower court, the Supreme Court ruled that
emergency awards are "exactly like an order" of an arbitral
tribunal and may be enforced as such. The court noted both the lack
of any provision in the legislation preventing emergency awards, as
well as the legislative history of section 17 favoring a
pro-arbitration approach. The decision paves the way for the
enforcement of emergency awards in India. Read more.
Singapore
Third-party funding extended to additional categories of legal
proceedings
Singapore has extended its third-party funding framework to cover
additional categories of legal proceedings. TFP has been permitted
in Singapore since 2017 and but only for international arbitration
proceedings and related court and mediation proceedings. The newly
extended TPF framework permits TPF in domestic arbitration
proceedings, certain proceedings commenced in the Singapore
International Commercial Court and related mediation proceedings.
Singapore's Professional Conduct Rules will also be amended to
reflect the use of TPF in SICC proceedings for registered foreign
lawyers, including disclosure obligations relating to TPF and
financial interests in third-party funders.
EMEA
Benin/Iraq
Two nations ratify Mauritius Convention on transparency in
investor-state arbitration
Benin and Iraq have ratified the United Nations Convention on
Transparency in Treaty-based Investor-State Arbitration, better
known as the Mauritius Convention. The Convention aims to apply
greater transparency to investor-state disputes, by extending the
application of the UNCITRAL Rules on Transparency. This includes
the publication of disputing parties, a notice of arbitration and
response, and public hearings and oral arguments. Benin and Iraq
are only the eighth and ninth jurisdictions to ratify the
Convention, joining Australia, Bolivia Cameroon, Canada, Gambia,
Mauritius and Switzerland. It will enter into force for Iraq on 20
February 2022 and for Benin on 19 July 2022.
European Union
Intra-EU disputes cannot be arbitrated under ECT
The Grand Chamber of the European Court of Justice had ruled that
the investor-state dispute settlement mechanism under the Energy
Charter Treaty is not applicable to intra-EU disputes. Following
the reasoning of the ECJ's 2018 decision in Achmea, which held
intra-EU BITs to be incompatible with EU law, the court found that
although the "ECT is an act of EU law", the tribunal that would
hear an intra-EU dispute under the ECT is outside the judicial
system of the EU, and in particular, is incapable of seeking a
preliminary ruling from the ECJ on the proper application of EU
law. Therefore, the ECT dispute settlement mechanism does not apply
to disputes between EU member states. The practical implications of
the ruling have yet to be seen. Despite the Achmea decision,
attempts to defend claims or annul awards arising from intra-EU
BITs based on lack of jurisdiction have largely been unsuccessful,
so we may see a similar view arising from ECT tribunals tasked with
deciding intra-EU ECT disputes.
Russia
ICC and SIAC licensed as permanent arbitration institutions
The ICC and SIAC have become the third and fourth foreign arbitral
institutions to be granted licenses to operate as permanent
arbitration institutions in Russia, joining HKIAC and VIAC.
Licencing as a PAI allows foreign arbitral institutions to
administer international commercial arbitrations and certain types
of corporate disputes involving Russian companies. The licensing
regime, which was introduced in 2019, is not compulsory for foreign
institutions, but arbitrations administered by institutions without
a license are usually considered ad hoc, which can complicate the
enforcement of any resulting award. The move is seen as a positive
step in the development of arbitration in Russia and will increase
choice for parties wishing to arbitrate in the jurisdiction.
United Kingdom
Supreme Court rules on proper procedure for service of enforcement
proceedings on sovereign state
The UK Supreme Court has found that in proceedings to enforce an
arbitral award against a foreign state, the procedure set out in
section 12(1) of the State Immunity Act 1978 -- service via the
UK's Foreign, Commonwealth and Development Office to the state's
Ministry of Foreign Affairs -- is "mandatory and exclusive."
Overturning the Court of Appeal, it found that service cannot be
dispensed with by the court, even in the exceptional circumstances
that existed in the present case -- the FCDO indicated service on
the State of Libya may not be possible, due to the political
situation there. The Supreme Court also found that this requirement
is proportionate and does not infringe on a party's right to a fair
trial under Article 6 of the European Convention on Human Rights.
Read more.
United Kingdom
First opt-out class action approved by UK tribunal in Merricks
judgment
The UK Competition Appeal Tribunal has certified the first opt-out
collective action since the UK class actions regime was introduced
in 2015. The application had been dismissed on first consideration
but after a series of appeals that went all the way to the Supreme
Court, the plaintiff has been granted a Collective Proceedings
Order in his GBP 14 billion claim against Mastercard, brought on
behalf of 46.2 million people relating to interchange fees. In
light of the Supreme Court's decision, the CPO application was
unopposed and unanimously approved by the Tribunal, paving the way
for what is likely to be one of the highest value claims ever
brought in the UK. However, the Tribunal held that the plaintiff
could not claim compound interest in collective proceedings, nor
could he include within the class anyone who had died before the
claim was issued. Read more.
The Americas
Brazil
Brazilian Superior Court confirms limitation period for seeking
annulment of arbitral awards
The Superior Court of Justice, Brazil's highest court for
non-constitutional matters, has clarified the limitation period for
requesting the annulment of an arbitral award. Under the Brazilian
Arbitration Act, a party has 90 days to bring proceedings seeking
the annulment of an arbitral award. What was less clear was whether
this time period also applied to the use of annulment as a defense
when seeking to resist enforcement proceedings. The court said yes
-- where a defense is filed after the expiry of the 90 days, it may
continue to rely on statutory defenses, but can no longer request
an annulment. Read more.
Canada
BC Court enforces foreign judgment relating to land in Canadian
legal first
The British Columbia Court of Appeal, the highest appellate court
in the province of British Columbia, has recognized and enforced
the judgment of a foreign court concerning title to land, the first
time a Canadian court has done so. Courts have traditionally
refused enforcement of such judgments, following the Canadian
Supreme Court's 1934 decision in Duke v Andler. However, the BC
court felt that the reasoning of a Supreme Court decision from 2006
involving the enforcement of foreign non-monetary orders had
overtaken the reasoning in Duke, leaving the court free to enforce
the judgment of a German court, which ordered the transfer of a BC
property from one party to another. Given the controversy
surrounding the decision, it is thought likely the Supreme Court
would grant leave to appeal, should it be sought.
Ecuador
Ecuador rejoins ICSID Convention despite opposition from
legislature
Ecuador has ratified the ICSID Convention following a
Constitutional Court ruling that the National Assembly, which is
opposed to the move, was not required to give its consent. Ecuador
was previously an ICSID member but withdrew in 2009. The ICSID
Convention is a multilateral treaty that seeks to encourage
international investment through the provision of an independent
and effective dispute-settlement institution for investors and
states. The Convention entered into force for Ecuador on 3
September 2021. Although the move is welcome news for investors,
there is concern that Ecuador may seek to oppose ICSID claims
against it on constitutional grounds.
Honduras
Honduras ratifies Singapore Mediation Convention
Honduras has joined UNCITRAL's Convention on the Enforcement of
Mediation Settlements, better known as the Singapore Mediation
Convention. The Convention, which came into force last September,
seeks to encourage confidence in mediation by creating an
international mechanism for enforcement of mediation settlement
agreements, similar to how the New York Convention acts as a
framework for the enforcement of arbitral awards. Honduras joins
Singapore, Fiji, Qatar, Saudi Arabia, Belarus and Ecuador as
parties to the Convention. It will come into force for Honduras on
2 March 2022.
United States
Supreme Court limits consumer lawsuits with ruling on Article III
standing
The US Supreme Court has issued a significant decision relating to
the harm required to be suffered by a plaintiff in order to have
standing. By a 5-4 majority, the court in TransUnion LLC v. Ramirez
found that proceedings based solely on the risk of future harm, are
not "cases" or "controversies" under the US Constitution and so do
not meet the "injury in fact" requirements for a plaintiff to
establish standing to sue (known as Article III standing),
summarized by Justice Kavanagh as "No concrete harm, no standing."
This ruling, which follows the Supreme Court's 2016 decision in
Spokeo v. Robins, is likely to have significant consequences for
class action litigation, given that claims based on alleged
procedural violations of statutorily created rights remain common.
Global
Trends in updates to arbitral rules
The past few months have seen many institutions around the world
update their institutional arbitration rules. This includes updates
from ACICA, AFSA, AIAC, ICSID (proposed), JAMS, JCAA, SWISS, and
WIPO. We also saw updated rules from the ICC and ICDR earlier in
the year. Whilst the changes differ between institutions, common
themes include enhanced provisions relating to multi-party and
multi-contract disputes, use of technology such as electronic
filing and virtual/hybrid hearings, expedited procedures, emergency
arbitrators, transparency and the publication of awards. Many of
these arbitration rules are reflected in our Comparison of
Arbitration Rules tables, with global and regional versions.
Updates from UNCITRAL Working Group III
UNCITRAL's Working Group III, which is considering reform of
investor-state dispute settlement, has released a report on its
40th session, which was held in Vienna in May. The Working Group
released a revised work plan, which, amongst other things, was
extended to 2026, as well as a draft note considering methods for
implementing the Code of Conduct for Adjudicators in International
Investment Disputes, which was released earlier this year.
Following the meeting, the Working Group also released a draft
paper on third-party funding in ISDS. This considered potential
models for regulation of TPF, disclosure requirements, potential
sanctions and a code of conduct for third-party funders.
UNCITRAL publishes expedited arbitration rules
UNCITRAL has announced that its new Expedited Arbitration Rules
have been adopted without objection from member states. The rules,
which require both parties to consent to their application, offer a
modified version of UNCITRAL's Arbitration Rules, with simplified
procedures and shortened timeframes. Measures include shortened
timeframes for appointing a tribunal and responding to a notice,
the appointment of a sole arbitrator unless parties agree
otherwise, and awards being made within six months from the date of
the constitution of the arbitral tribunal. Work on these rules has
been ongoing since February 2019, when UNCITRAL's Working Group II
was tasked with their creation. The group is due to meet again in
New York at the end of March 2022 and is expected to finalize a
draft explanatory note to the new rules.
ICCA launches guidelines on standards of practice in international
arbitration
The ICCA has launched its new Guidelines on Standards of Practice
in International Arbitration. The guidelines aim to reflect the
broad consensus in the international arbitration community as to
the general principles of civility expected of all participants
during the course of international arbitration. The guidelines were
informed by surveys of professional standards, ethical rules, and
civility guidelines from a wide range of jurisdictions, carried out
by a diverse panel of arbitration experts, with the aim of ensuring
the guidelines reflect the breadth of jurisdictions, cultures and
situations in which international arbitration is utilized. They are
not intended to be mandatory, although could be incorporated in an
arbitration agreement.
ICSID releases papers on mediation in investment disputes
The International Centre for the Settlement of Investment Disputes
has released two papers on investment mediation. Background Paper
on Investment Mediation is a step-by-step introduction to the role
of mediation in resolving investment disputes, how the mediation
process works in practice, and the key ways that participants can
set themselves up for successful outcomes. Overview of Investment
Treaty Clauses on Mediation is a survey of all known dispute
resolution clauses in bilateral investment treaties, free trade
agreements, and dispute resolution provisions in model treaties
that provide for mediation in some form. It is intended as a
resource for governments considering mediation as a
dispute-resolution option in future investment treaties and
contracts. ICSID launched the first institutional mediation rules
for investment disputes in 2018, with proposed updates released in
June this year. [GN]
[*] Judge Won't Dismiss Zantac Consumer Class Actions
-----------------------------------------------------
FDA News reports that a federal judge has ruled that he won't
dismiss class-action lawsuits against several brand-name drugmakers
brought by consumers over the potentially contaminated heartburn
drug Zantac (ranitidine).[GN]
[*] Missouri AG's Class Action Over School Mask Mandates Pending
----------------------------------------------------------------
Springfield News-Leader reports that the Biden administration's
response to increased threats and harassment toward teachers and
school boards has prompted widespread criticism from Missouri's
Republican leaders, as K-12 curriculum and its governance remains a
hot-button issue.
U.S. Attorney General Merrick Garland issued a memo on Oct. 11
directing regional FBI and U.S. Attorney's offices to meet with
government officials at all levels in the coming weeks. The order
comes as school boards and classrooms around the country are
increasingly scrutinized amid issues of mask mandates and teaching
about racism and equity, leading to what Garland called "a
disturbing spike in harassment, intimidation and threats of
violence." The memo also indicates new federal initiatives and
training for teachers, as well as possible prosecutions "when
appropriate."
"Threats against public servants are not only illegal, they run
counter to our nation's core values," Garland wrote. "Those who
dedicate their time and energy to ensuring that our children
receive a proper education in a safe environment deserve to be able
to do their work without fear for their safety."
Missouri Gov. Mike Parson, a Republican, slammed the White House's
policy in a series of tweets on Oct. 7, saying his administration
will "oppose any effort" to "limit parental dissent in our
schools."
"This action by the Biden Administration jeopardizes local control
and sets a dangerous precedent against those who simply disagree,"
Parson wrote. "President Biden cannot be allowed to criminalize
Missouri parents who want to access their elected school boards."
Parson re-directed the issue to criticizing the White House's
immigration policy.
"Amazingly, (Biden) wants to use federal resources to go after
concerned parents but refuses to prevent criminal aliens from
illegally entering the United States," he wrote.
National School Boards Association asked for law enforcement to
intervene
Recent anger and frustration toward schools has primarily come as a
response to many boards instituting mask mandates for children too
young to currently receive the vaccine. They have also come under
fire from some parents alleging that districts are teaching
critical race theory -- an academic framework that is not taught at
the K-12 level but has been used as a catch-all phrase to target
curriculum focused on racism and inequity in the U.S.
Leaders from the National School Boards Association wrote to the
White House asking for law enforcement to intervene in the matter.
"As these acts of malice, violence and threats against public
school officials have increased, the classification of these
heinous actions could be the equivalent to a form of domestic
terrorism and hate crimes," they wrote.
Those conversations have taken place locally, though there have
been no documented instances of threats or harassment in
Springfield. Critical race theory dominated Springfield Public
Schools board meetings earlier this year and a state lawmaker has
requested records from the district related to the issue.
Superintendent Grenita Lathan has said the district is not teaching
critical race theory.
Meetings over the summer were flooded by parents arguing over mask
requirements for the district -- which currently has a temporary
mandate in place.
Missouri schools: Springfield superintendent says 'critical race
theory is not being taught'
Missouri AG calls Garland's directive 'outrageous'
Missouri Attorney General Eric Schmitt sent a letter to his federal
counterpart on Oct. 5, calling Garland's directive "outrageous" and
"an unconstitutional expansion of federal power."
"Biden's Department of Justice is weaponizing its resources against
parents who dare to advocate for their children," Schmitt wrote.
"This dangerous federal overreach imposes a chilling effect on free
speech by criminalizing dissent."
Schmitt, a Republican also running for U.S. Senate, has made
opposition to the Biden administration and lawsuits involving mask
mandates a focus of his time in office and campaign. He filed a
class-action suit against districts that had implemented mask
mandates, which a judge recently limited to Columbia Public
Schools.
Missouri's junior U.S. senator also criticized the directive. Sen.
Josh Hawley questioned a DOJ official on the policy in a Senate
committee meeting on Oct. 5, calling it "dangerous" and that the
department is "attempting to silence" parents. Sen. Roy Blunt has
not weighed in on the issue.
U.S. Rep. Billy Long, southwest Missouri's Republican congressman
who is running for Senate, honed in on critical race theory in his
statement on Oct. 6 -- calling the DOJ order a tactic to "scare and
silence parents who don't want their kids to be taught this leftist
garbage."
"These parents have a right to be heard and to protest what their
kids are taught in school," Long said. "Like any elected official,
school board members need to answer for their actions."
He was joined by another member of Missouri's congressional
delegation weighing in on the order -- Rep. Vicky Hartzler, who is
also running for Senate. Hartzler said she agreed that "for those
rare occasions when attendees at school board meetings meet this
threshold, it becomes a legal matter," but believed the
administration was "weaponizing the Department of Justice."
Missouri Senate leader contacts state chapter
Sen. Caleb Rowden, a Columbia Republican who serves as Senate
Majority Leader, sent a letter to the Missouri School Boards'
Association asking for clarification on their national
organization's statement.
"I feel the need to ensure that the Missouri School Boards'
Association is not using their platform and considerable influence
to try and conflate the parents of the very kids they claim to care
for with a group of mass-murdering terrorists," Rowden wrote. [GN]
[*] U.S. Political Groups Involve in Unlawful Collection of Money
-----------------------------------------------------------------
Roger Sollenberger, writing for Daily Beast, reports that a network
of shady political groups at the center of a new class action
lawsuit for bilking donors out of tens of millions of dollars
appears to be attempting a legal work-around in order to continue
pulling in the money and evading government scrutiny.
The 17 groups in the network bear the tell-tale signs of "scam
PACs" -- entities which present themselves to donors as nonprofit
charities but register as political groups with the government. The
loophole allows the groups to operate in a gray zone outside the
reach of the different federal agencies that regulate nonprofits
and political groups.
Rep. Katie Porter (D-CA), who has taken steps to hold these groups
liable, offered a brief definition of what she calls a "disgusting"
scheme.
"Scam PACs are political action committees designed to look like
they benefit a legitimate political campaign or cause, when in
actuality all the money the PAC collects is going into the pocket
of a scammer," Porter said in a statement to The Daily Beast.
Over the last 18 months, this one network has taken in $40 million
from donors in the name of supporting police, firefighters,
veterans, paramedics -- even people with autism. The money,
however, goes almost entirely to telemarketing and consulting
outfits. The groups in this particular network pay a number of
those companies, but share six of them, and pay them often on the
same day. Those payments alone have totaled more than $10 million
this year, and other murky companies received millions more from
these groups on top of that.
While these PACs operate in what now appears to be a legal limbo,
their operators have come under increasing scrutiny in the press.
This summer, the network took new, coordinated steps in what
experts say is an apparent effort to mislead the government in
addition to their donors.
Campaign finance law specialist Brett Kappel of Harmon Curran said
these PACS appear to be trying to apply "a veneer of legitimacy" to
their operations, indicating a "distinct possibility" that they
have come under federal scrutiny.
Starting July 1, all 17 groups -- one of which attracted a CNN
expose last year -- started reporting payments to the same six
telemarketing and consulting companies, frequently on the same day.
The new trick, though, is that they now report those payments in a
different way, which may help them avoid detection or possible
legal action.
One way to identify a scam PAC is by comparing how much money they
spend on "operating expenses," which go to overhead, fundraising,
and administrative costs, with how much they spend on "independent
expenditures," which go to support candidates. These groups all
report vast discrepancies between those two types of payments,
spending nearly all their money on "operating expenses" to sketchy
companies, and hardly any on politics.
But July marked a tactical shift. The PACs in this network suddenly
started reporting these payments as "independent expenditures,"
nominally in support of specific candidates. The total since July
1: $4.6 million. Further, those same businesses had also received
millions in "operating" payments in the first half of the year.
The network took another step, too: They all filed federal
statements, adding "PAC" to their name.
Also, many of the candidates they claim to support don't appear to
need it. This is an off-year for most US elections. And a number of
the candidates aren't in tight districts.
Kappel said the moves appear to be evidence of coordination,
possibly intended to mislead government regulators and law
enforcement.
"Without seeing the actual language of these communications,
however, it is impossible to tell whether they are actually
engaging in express advocacy or merely fundraising under the guise
of making independent expenditures," he said. "Regardless, it
appears that the vast majority of the money being spent by these
PACs is still going to the people who control them -- either
directly or to other companies under their control."
Paul S. Ryan, general counsel for campaign finance watchdog Common
Cause, shared Kappel's analysis.
"For 20 years I've been looking at the issue through the other end
of the telescope, at 'dark money' nonprofits trying to hide that
they're influencing politics," Ryan said. "This is the opposite --
these PACs appear to be trying to pass themselves off as nonprofits
and trying to hide that by spending on the political end. It raises
the same concern, though, because in both cases they mislead the
government about the use of contributions. And that's where these
scam PACs may be running afoul of the law."
He pointed out that the sudden change in reporting suggests the
groups are either mischaracterizing the nature of their spending
now, or had been mischaracterizing it for years previously. "It's
illegal to mislead the government," he said. "And donors should
never be lied to."
Ryan also noted that "it also sounds like we very well could be
talking about a federal wire fraud statute violation," citing the
fact that every one of the more than two dozen donors contacted by
The Daily Beast over the course of the last year said they had been
deceived.
However, many of the companies these PACs pay are registered in
such a way that the true owner cannot be traced. The Daily Beast
also reached out to people associated with the PACs' stated
addresses, but only one replied.
That woman runs Ridge Innovative, which she confirmed was a
wholesale telemarketing service. The company website advertises
that among an array of services. She declined to comment on the
record.
The Daily Beast also spoke with a woman who answered a call to the
phone number for Support Our Firefighters And Paramedics PAC. She
said she worked for "the payment processing department," but would
not divulge the name of the company it processed payments for.
The unnamed company, she said, contracts with more than 40 groups,
confirming they worked with a number of PACs. One of them was
Support America's Police, which had deceived two donors contacted
by The Daily Beast. Both groups are registered to prolific PAC-man
Oliver Cappleman, who also runs the Autism Hear Us Now PAC -- also
in the same network of 17 groups.
When the woman learned she had been contacted by a journalist, she
immediately hung up.
The Daily Beast connected the address of yet another business,
Cloud Data Services, to Richard Zeitlin, a known shady Las Vegas
telemarketing mogul who has been investigated for alleged scam
operations. He did not respond to multiple requests for comment.
Residents at other given addresses either could not be reached for
comment, or did not reply.
The Center for Public Integrity reported in 2020 that groups
working with Zeitlin's companies comprise about half the tens of
millions of dollars raised since the charity scam PAC scheme popped
up a few years ago.
But the law so far has not caught up. Last year, Porter introduced
a bipartisan bill with Rep. Dan Crenshaw (R-TX) which would
redefine campaign finance law to hold these "con artists" liable.
Sen. Angus King, an independent from Maine, is said to be working
on a similar bill.
That leaves the task to the Federal Trade Commission and the
Department of Justice, who have not yet cracked down in a way to
deter the activity.
The misled donors, however, can also act.
The Daily Beast spoke with 10 PAC donors for this story, though
some declined to be quoted. Most of them were retired, and all of
them confirmed they had been misled.
One donor, a startup exec who gave $1,000 to a PAC called "Honoring
America's Law Enforcement," said he did not know it was a political
group. He relayed that the federal PAC told him they specifically
supported a local police department.
"If they postured as that and stole my money, that's terrible,"
this donor said, noting he would never give to any political groups
"regardless of my political leanings." After a phone interview, the
donor, who added that he was under the belief that the donation was
tax-deductible as a charity gift, called his credit card company
and flagged the payment as fraudulent.
One retired donor, presented with his $500 contribution this year
to "Support America's Police," said he had also been deceived into
giving to a charity. "If that's true, I'm gonna hunt these fuckers
down," the 69-year-old said. "I'm not in any shape to do that, but
I will hunt them down."
A separate retired donor -- who gave $500 to the "US Veterans
Assistance Foundation" -- had a similar reaction. "I'd like to tell
'em go to hell, to their face," he told The Daily Beast upon being
informed that his donation had not gone to support veterans, but to
fundraising for a group which pocketed almost all of its donor
money. This donor said he'd like to tell this group to "eff off,"
warning that, if they didn't, he'd come to their office "cut you
up, motherfucker."
Another retired donor, who over the last two years has given $2,100
to the same group, said he was familiar with the name. "When you
appeal to people's feelings for warriors, it's an easy scam," he
said. He added that his father had fought in the Korean War and
veterans "hold a place in my heart."
This donor also said he gave frequently to major charities,
including Doctors Without Borders, the Sierra Club, and the U.S.
Deputy Sheriffs Association. The veterans group, he recalled, had
"sounded legit, and I have a good sense for what's bullshit and
what's not," adding that "they ought to fuckin' be in jail for
this."
Yet another retired donor didn't recall making his donation when
presented with the $250 receipt for "Support Our Firefighters And
Paramedics."
Several donors contacted by The Daily Beast said they would
consider legal recourse. If they do, they would be joining a
movement. On Sept. 27, a class action lawsuit was filed in U.S.
District Court for the Middle District of Pennsylvania, accusing
Zeitlin and a number of affiliated companies and PACs with
violating the Telephone Consumer Protection Act via the PAC
scheme.
All but two of the 17 PACs in this new network are named in the
lawsuit. One of those unnamed groups was Support America's Police.
The overwhelming majority of these donors, however, are unknown to
the public, because they donate in such small amounts that they do
not need to be disclosed. But they add up. The Daily Beast
previously reported that over the last four years, PACs posing as
charities have collected $85 million in donor money -- $18 million
more than the two top-raising congressional campaign committees in
the same period. And only a small fraction went to political
spending.
Two donors contacted by The Daily Beast claimed that they had
received additional deceptive fundraising calls from the groups
after July, when the new reports were being filed. One donor
remarked, "Neil Young says 'rust never sleeps,' and these people
don't either." [GN]
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S U B S C R I P T I O N I N F O R M A T I O N
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