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C L A S S A C T I O N R E P O R T E R
Thursday, October 28, 2021, Vol. 23, No. 210
Headlines
ALBERTSONS COMPANIES: Seeks OK of Settlement Reached in Martin Suit
AMERICAN AIRLINES: Initial OK of Deal in Capacity Suit Appealed
ANTHEM INC: Petition for Writ of Certiorari in ERISA Suit Pending
ARIZONA: Petition For Writ of Mandamus Filed in Toomey v. ADOA
BIOGEN INC: 401(k) Savings Plan Related Class Suit Underway
BIOGEN INC: Bid to Dismiss Aduhelm Securities Suit Pending
BOSTON BEER: Faces False Advertising Related Suit
BOSTON BEER: Faces Purported Securities Class Suits in New York
BRITAX CHILD: Court Enters Amended Conference, Scheduling Order
CANADIAN PACIFIC: Continues to Defend Train Derailment Suit
CHARTER COMMUNICATIONS: Bid to Dismiss Harper Suit Granted in Part
CHARTER COMMUNICATIONS: Court Stays Harper Suit Pending Arbitration
CHASE DENNIS: Samora Seeks to Certify Class & Subclasses
COUNSELING ALLIANCE: Shortchanges Workers' Wages, Carter Says
CUYAHOGA COUNTY, OH: Seeks to Extend Deadline for Class Cert. Brief
CVS PHARMACY: Christian Piescik Seeks to Certify Rule 23 Classes
DINO PALMIERI: Torres Loses Bid for Class Certification
EQUIFAX INC: Consumer Class Suits in Georgia Stayed
EQUIFAX INC: Putative Class Suits Underway in Canada
INTUITIVE SURGICAL: Bid to Dismiss Consolidated Class Suit Pending
KONINKLIJKE PHILIPS: Hill Suit Transferred to W.D. Pennsylvania
KONINKLIJKE PHILIPS: Miller Suit Transferred to W.D. Pennsylvania
KONINKLIJKE PHILIPS: Mitrovich Suit Transferred to W.D. Pa.
KONINKLIJKE PHILIPS: Murray Suit Transferred to W.D. Pennsylvania
KONINKLIJKE PHILIPS: Saunders Suit Transferred to W.D. Pennsylvania
KONINKLIJKE PHILIPS: Sizemore Suit Transferred to W.D. Pennsylvania
LOS ANGELES, CA: Appeals Reconsideration Bid Denial in Hunt Case
LOWE'S COMPANIES: Judgment Entered in Favor of Aon in Reetz Suit
MANUFACTURERS AND TRADERS: Flynn Suit Seeks to Certify Class Action
MCLANE FOODSERVICE: Ordaz Seeks to Remand Case to State Court
MESA AIR: Court Enters Scheduling Order in Lowthorp Class Suit
MICHIGAN: Judgment in Prisoners Favor in Ackerman v. MDOC Affirmed
MINDBODY INC: Walleye Securities Suit Seek to Certify Class Action
NEXUS HOLIDAYS: Zhang Class Certification Bid Partly Granted
POLY-WOOD LLC: Giannaros Seeks Initial OK of Settlement Deal
ROBINHOOD FINANCIAL: Pinchasov Brings Appeal to 11th Cir.
SAN BERNARDINO, CA: Ribota, et al. Seek to Certify Class Action
SEDGWICK CLAIMS: Gibbs Seeks to Certify FLSA Collective Action
STATE FARM: Court Junks Baker Bid for Reconsideration
STRIDE INC: Court Junks K12 Securities Suit
SYMETRA ASSIGNED: Extension of Class Cert. Deadlines Sought
SYNCHRONY FINANCIAL: Stichting Depositary Class Suit Ongoing
TENNESSEE: Bid for Prelim. Injunction in S.B. v. Gov. Lee Granted
UNITED STATES: Plaintiffs Seek Clarification of Sept. 15 Order
WELLS FARGO: Bald Appeals Case Dismissal to 9th Cir.
WESTCHESTER PARKWAY: Edgar Suit Seeks to Certify Collective Action
WFM PRIVATE: Court Enters Revised Case Scheduling Order in Kellman
WSP USA: Ford Bid for Conditional Status of Collective Partly OK'd
*********
ALBERTSONS COMPANIES: Seeks OK of Settlement Reached in Martin Suit
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Albertsons Companies, Inc. said in its Form 10-Q Report filed with
the Securities and Exchange Commission on October 20, 2021, for the
quarterly period ended September 11, 2021, that the parties in the
class action case styled, Martin v. Safeway, will seek court
approval of the settlement reached.
On May 31, 2019, a putative class action complaint entitled Martin
v. Safeway was filed in the California Superior Court for the
County of Alameda, alleging the Company failed to comply with the
Fair and Accurate Credit Transactions Act ("FACTA") by printing
receipts that failed to adequately mask payment card numbers as
required by FACTA.
The plaintiff claims the violation was "willful" and exposes the
Company to statutory damages provided for in FACTA.
The Company has answered the complaint and is vigorously defending
the matter.
On January 8, 2020, the Company commenced mediation discussions
with plaintiff's counsel and reached a settlement in principle on
February 24, 2020.
The parties will seek court approval of the settlement.
The Company has recorded an estimated liability for this matter.
No further updates were provided in the Company's SEC report.
Albertsons Companies, Inc., through its subsidiaries, operates as a
food and drug retailer in the United States. Its food and drug
retail stores offer grocery products, general merchandise, health
and beauty care products, pharmacy, fuel, and other items and
services. The company is headquartered in Boise, Idaho. Albertsons
Companies, Inc. is a subsidiary of Albertsons Investor Holdings
LLC.
AMERICAN AIRLINES: Initial OK of Deal in Capacity Suit Appealed
---------------------------------------------------------------
American Airlines Group Inc. said in its Form 10-Q Report filed
with the Securities and Exchange Commission on October 21, 2021,
for the quarterly period ended September 30, 2021, that three
objectors to the settlement in the class action related to
passenger capacity have taken an appeal from the preliminarily
approval order entered by the Federal District Court for the
District of Columbia.
The company, along with Delta Air Lines, Inc., Southwest Airlines
Co., United Airlines, Inc. and, in the case of litigation filed in
Canada, Air Canada, were named as defendants in approximately 100
putative class action lawsuits alleging unlawful agreements with
respect to air passenger capacity.
The U.S. lawsuits were consolidated in the Federal District Court
for the District of Columbia (the DC Court).
On June 15, 2018, the company reached a settlement agreement with
the plaintiffs in the amount of $45 million to resolve all class
claims in the U.S. lawsuits.
That settlement was approved by the DC Court on May 13, 2019,
however three parties who objected to the settlement have appealed
that decision to the United States Court of Appeals for the
District of Columbia.
American Airlines said, "We believe these appeals are without merit
and intend to vigorously defend against them."
No further updates were provided in the Company's SEC report.
American Airlines Group Inc., through its subsidiaries, operates as
a network air carrier. It provides scheduled air transportation
services for passengers and cargo. American Airlines Group Inc. was
founded in 1934 and is headquartered in Fort Worth, Texas.
ANTHEM INC: Petition for Writ of Certiorari in ERISA Suit Pending
-----------------------------------------------------------------
Anthem, Inc. said in its Form 10-Q Report filed with the Securities
and Exchange Commission on October 20, 2021, for the quarterly
period ended August 31, 2021, that the petition for Writ of
Certiorari filed in in the class action suit entitled, In re
Express Scripts/Anthem ERISA Litigation, is pending.
The company is a defendant in a class action lawsuit that was
initially filed in June 2016 against Anthem, Inc. and Express
Scripts, which has been consolidated into a single multi-district
lawsuit captioned In re Express Scripts/Anthem ERISA Litigation, in
the U.S. District Court for the Southern District of New York.
The consolidated complaint was filed by plaintiffs against Express
Scripts and us on behalf of all persons who are participants in or
beneficiaries of any ERISA or non-ERISA healthcare plan from
December 1, 2009 to December 31, 2019 in which the company provided
prescription drug benefits through the ESI PBM Agreement and paid a
percentage based co-insurance payment in the course of using that
prescription drug benefit.
The plaintiffs allege that the company breached its duties, either
under ERISA or with respect to the implied covenant of good faith
and fair dealing implied in the health plans, (i) by failing to
adequately monitor Express Scripts' pricing under the ESI PBM
Agreement, (ii) by placing its own pecuniary interest above the
best interests of the company's insureds by allegedly agreeing to
higher pricing in the ESI PBM Agreement in exchange for the
purchase price for the company's NextRx PBM business, and (iii)
with respect to the non-ERISA members, by negotiating and entering
into the ESI PBM Agreement that was allegedly detrimental to the
interests of such non-ERISA members.
Plaintiffs seek to hold the company and Express Scripts jointly and
severally liable and to recover all losses allegedly suffered by
the proposed class, equitable relief, disgorgement of alleged
ill-gotten gains, injunctive relief, attorney's fees and costs and
interest.
In April 2017, the company filed a motion to dismiss the claims
brought against it, and it was granted, without prejudice, in
January 2018.
Plaintiffs filed a notice of appeal with the United States Court of
Appeals for the Second Circuit, which was heard in October 2018. In
December 2020, the Second Circuit affirmed the trial court's
decision dismissing the ERISA complaint.
Plaintiffs filed a Petition for Rehearing and Rehearing En Banc.
Plaintiff's Petition for Rehearing was denied. Plaintiffs filed a
Writ of Certiorari with the U.S. Supreme Court, which the company
have opposed.
Anthem said, "We intend to vigorously defend this suit; however,
its ultimate outcome cannot be presently determined."
No further updates were provided in the Company's SEC report.
Anthem, Inc., through its subsidiaries, operates as a health
benefits company in the United States. It operates through three
segments: Commercial & Specialty Business, Government Business, and
Other. The company was formerly known as WellPoint, Inc. and
changed its name to Anthem, Inc. in December 2014. Anthem, Inc. was
founded in 1944 and is headquartered in Indianapolis, Indiana.
ARIZONA: Petition For Writ of Mandamus Filed in Toomey v. ADOA
--------------------------------------------------------------
Defendants STATE OF ARIZONA, ANDY TOBIN and PAUL SHANNON filed a
petition for writ of mandamus from a court ruling entered in the
lawsuit styled Russell B. Toomey, Plaintiff v. State of Arizona, et
al., Defendants, Case No. CV-19-00035-TUC-RM (LAB), in the United
States District Court for the District of Arizona.
Plaintiff Dr. Russell B. Toomey is a transgender male who is
employed as an Associate Professor at the University of Arizona.
His health insurance -- a self-funded plan controlled by the
Arizona Department of Administration ("ADOA") -- categorically
excludes "gender reassignment surgery" from coverage.
The Plaintiff brought the class action lawsuit alleging that the
exclusion of gender reassignment surgery is sex discrimination
under Title VII of the Civil Rights Act and a violation of the
Fourteenth Amendment Equal Protection Clause. One of the disputed
factual questions in the case is "whether the decision to exclude
gender reassignment surgery in the Plan was actually motivated by a
legitimate governmental interest."
The Plaintiff served the Defendants with his first set of Requests
for Production on Dec. 8, 2020. Requests for Production One, Three,
and Nine sought documents and information concerning the Plan's
exclusion of gender reassignment surgery and the decision-making
behind the exclusion. The State Defendants withheld 85 documents as
attorney-client privileged.
The Plaintiff seeks to compel disclosure of the 85 documents that
the State Defendants have withheld based on their assertion of the
attorney-client privilege.
As reported in the Class Action Reporter on Oct. 5, 2021, Judge
Rosemary Marquez affirmed the Magistrate Judge's order granting the
Plaintiff's Second Motion to Compel Production of Documents.
The Defendants now petition for a writ of mandamus to challenge the
United States District Court for the District of Arizona's Order
granting Plaintiff's Second Motion to Compel, which ordered the
Defendants to
produce all documents related to their decision-making regarding
the exclusion of coverage for gender reassignment surgery as
requested in the Plaintiff's Requests for Production One, Three,
and Nine, including legal advice that may have informed that
decision-making.
The issue presented is: Did the District Court commit a clear error
in granting Plaintiff's Second Motion to Compel Production of
Documents and compelling the production of documents protected by
the attorney-client privilege?
The appellate case is captioned as State of Arizona, et al. v.
USDC-AZT, Case No. 21-71312, in the United States Court of Appeals
for the Ninth Circuit.[BN]
Defendants-Petitioners STATE OF ARIZONA, ANDY TOBIN, and PAUL
SHANNON are represented by:
Timothy J. Berg, Esq.
Amy Abdo, Esq.
Ryan Curtis, Esq.
Shannon Cohan, Esq.
FENNEMORE CRAIG, P.C.
2394 E. Camelback Road, Suite 600
Phoenix, AZ 85016
Telephone: (602) 916-5000
BIOGEN INC: 401(k) Savings Plan Related Class Suit Underway
-----------------------------------------------------------
Biogen Inc. said in its Form 10-Q Report filed with the Securities
and Exchange Commission on October 20, 2021, for the quarterly
period ended September 30, 2021, that the company continues to
defend a consolidated class action suit related to the company's
401(k) Savings Plan.
In September 2020 the U.S. District Court for the District of
Massachusetts consolidated two cases filed against the company in
July and August 2020 by participants in the Biogen 401(k) Savings
Plan alleging breach of fiduciary duty under the Employee
Retirement Income Security Act ("ERISA").
Plaintiffs seek a declaration of the action as a class action and
monetary and other relief.
No trial date has been set.
Biogen said, "An estimate of the possible loss or range of loss
cannot be made at this time."
Biogen Inc. discovers, develops, manufactures, and delivers
therapies for treating neurological and neurodegenerative diseases
worldwide. The company was founded in 1978 and is headquartered in
Cambridge, Massachusetts.
BIOGEN INC: Bid to Dismiss Aduhelm Securities Suit Pending
----------------------------------------------------------
Biogen Inc. said in its Form 10-Q Report filed with the Securities
and Exchange Commission on October 20, 2021, for the quarterly
period ended September 30, 2021, that the company's motion to
dismiss filed in ADUHELM Securities Litigation, is pending.
The company and certain current and former officers are named as
defendants in an action filed by a shareholder on November 13, 2020
and now pending in the U.S. District Court for the District of
Massachusetts.
The action alleges violations of federal securities laws under 15
U.S.C Section 78j(b) and Section 78t(a) and 17 C.F.R. Section
240.10b-5 and seeks a declaration of the action as a class action
and monetary relief.
An estimate of the possible loss or range of loss cannot be made at
this time.
No trial date has been set.
Biogen said, "We have filed a motion to dismiss, which is
pending."
No further updates were provided in the Company's SEC report.
Biogen Inc. discovers, develops, manufactures, and delivers
therapies for treating neurological and neurodegenerative diseases
worldwide. The company was founded in 1978 and is headquartered in
Cambridge, Massachusetts.
BOSTON BEER: Faces False Advertising Related Suit
-------------------------------------------------
The Boston Beer Company, Inc. said in its Form 10-Q Report filed
with the Securities and Exchange Commission on October 21, 2021,
for the quarterly period ended September 25, 2021, that the company
is facing a purported class action suit related to false
advertising.
On August 26, 2021, a proposed class action lawsuit was filed by
two individuals in the United States District Court for the
Southern District of California against the Company.
The complaint alleges claims for false advertising, breach of
warranty, unlawful business practices, unfair competition, and
violations of certain California and New York consumer protection
acts.
The plaintiff claims that the Company falsely or misleadingly
labelled its Truly products with respect to the ingredients
contained therein.
The Company intends to vigorously assert and defend its rights in
this lawsuit.
Boston Beer said, "A range of potential loss is not estimable at
this time."
The Boston Beer Company, Inc. produces a variety of craft-brewed
beers and cider products at various contract breweries and
Company-owned breweries. The company is based in Boston,
Massachusetts.
BOSTON BEER: Faces Purported Securities Class Suits in New York
---------------------------------------------------------------
The Boston Beer Company, Inc. said in its Form 10-Q Report filed
with the Securities and Exchange Commission on October 21, 2021,
for the quarterly period ended September 25, 2021, that the company
is facing purported securities class suit filed in the United
States District Court for the Southern District of New York.
On September 14, 2021, a purported class action lawsuit was filed
by an individual shareholder in the United States District Court
for the Southern District of New York against the Company and three
of its officers.
The complaint alleges claims under Sections 10(b) and 20(a) of the
Securities Exchange Act of 1934 between April 22, 2021 and
September 8, 2021.
The plaintiff claims that defendants made materially false and/or
misleading statements or failed to disclose material adverse facts
about the Company's business, operations, and prospects.
On October 8, 2021, a nearly identical complaint was filed against
the Company by an individual shareholder in the United States
District Court for the Southern District of New York.
The Company intends to vigorously defend against these lawsuits.
Boston Beer said, "A range of potential loss is not estimable at
this time."
The Boston Beer Company, Inc. produces a variety of craft-brewed
beers and cider products at various contract breweries and
Company-owned breweries. The company is based in Boston,
Massachusetts.
BRITAX CHILD: Court Enters Amended Conference, Scheduling Order
---------------------------------------------------------------
In the class action lawsuit captioned as TIFFANY COLEMAN and KELI
SWANN, individually and on behalf of all others similarly situated,
v. BRITAX CHILD SAFETY, INC., Case No. 0:21-cv-00721-SAL (D.S.C.),
the Hon. Judge Sherri A. Lydon entered an amended conference and
scheduling order
-- Motions to Amend Pleadings due by Nov. 10, 2021.
-- The Plaintiffs' ID of Expert Witness due by Oct. 19, 2022.
-- The Defendant's ID of Expert Witnesses Due by Dec. 14,
2022.
-- The Plaintiffs' certification that any written rebuttal
report(s) prepared and signed by their previously
identified class certification expert(s) has been disclosed
due by Jan. 18, 2023.
-- The Plaintiffs' expected merits expert disclosure and
certification of report due by May 3, 2023.
-- The Defendant's expected merits expert disclosure and
certification of report due by 06/21/2023.
-- all merits expert discovery shall be completed by July 21,
2023.
-- Records Custodian Affidavit due by Dec. 20, 2023.
-- Discovery due by March 29, 2023
-- Motion in Limine due by Jan 10, 2024.
-- Dispositive motions due by Aug. 16, 2023.
-- Plaintiffs' class certification motion due by Oct. 19,
2022.
-- Defendant's opposition to class certification motion due by
Dec. 14, 2022.
-- Rule 26(a)(3) Disclosures due by Dec. 20, 2023
-- Jury Selection Deadline Feb. 5, 2024.
-- Mediation Due by April 12, 2023.
Britax Child manufactures child seats. The Company offers
strollers, travel systems, baby carriers, kick mats, window sheds,
and back seat mirror.
A copy of the Court's order dated Oct. 15, 2021 is available from
PacerMonitor.com at https://bit.ly/3b9p9mT at no extra charge[CC]
CANADIAN PACIFIC: Continues to Defend Train Derailment Suit
------------------------------------------------------------
Canadian Pacific Railway Limited said in its Form 10-Q Report filed
with the Securities and Exchange Commission on October 20, 2021,
for the quarterly period ended September 30, 2021, that the company
continues to defend a class action suit related to the train
derailment in Lac-Megantic, Quebec.
On July 6, 2013, a train carrying petroleum crude oil operated by
Montreal Maine and Atlantic Railway ("MMAR") or a subsidiary,
Montreal Maine & Atlantic Canada Co., derailed in Lac-Megantic,
Quebec. The derailment occurred on a section of railway owned and
operated by the MMA Group and while the MMA Group exclusively
controlled the train.
Following the derailment, MMAC sought court protection in Canada
under the Companies' Creditors Arrangement Act and MMAR filed for
bankruptcy in the U.S. Plans of arrangement were approved in both
Canada and the U.S. (the "Plans"), providing for the distribution
of approximately $440 million amongst those claiming derailment
damages.
A number of legal proceedings, set out below, were commenced in
Canada and the U.S. against Canadian Pacific Railway Limited (CP)
and others:
(1) Quebec's Minister of Sustainable Development, Environment,
Wildlife and Parks ordered various parties, including CP, to
remediate the derailment site (the "Cleanup Order") and served CP
with a Notice of Claim for $95 million for those costs. CP appealed
the Cleanup Order and contested the Notice of Claim with the
Administrative Tribunal of Québec. These proceedings are stayed
pending determination of the Attorney General of Quebec (AGQ)
action.
(2) The AGQ sued CP in the Québec Superior Court claiming $409
million in damages, which was amended and reduced to $315 million
(the "AGQ Action"). The AGQ Action alleges that: (i) CP was
responsible for the petroleum crude oil from its point of origin
until its delivery to Irving Oil Ltd.; and (ii) CP is vicariously
liable for the acts and omissions of the MMA Group.
(3) A class action in the Quebec Superior Court on behalf of
persons and entities residing in, owning or leasing property in,
operating a business in, or physically present in Lac-Megantic at
the time of the derailment was certified against CP on May 8, 2015
(the "Class Action"). Other defendants including MMAC and Mr.
Thomas Harding ("Harding") were added to the Class Action on
January 25, 2017. The Class Action seeks unquantified damages,
including for wrongful death, personal injury, property damage, and
economic loss.
(4) Eight subrogated insurers sued CP in the Québec Superior Court
claiming approximately $16 million in damages, which was amended
and reduced to approximately $15 million (the "Promutuel Action"),
and two additional subrogated insurers sued CP claiming
approximately $3 million in damages (the "Royal Action").
Both actions contain similar allegations as the AGQ Action. The
actions do not identify the subrogated parties. As such, the extent
of any overlap between the damages claimed in these actions and
under the Plans is unclear. The Royal Action is stayed pending
determination of the consolidated proceedings described below.
On December 11, 2017, the AGQ Action, the Class Action and the
Promutuel Action were consolidated. The joint liability trial of
these consolidated claims commenced on September 21, 2021 and will
be followed by a damages trial, if necessary.
No further updates were provided in the Company's SEC report.
Canadian Pacific Railway Limited, together with its subsidiaries,
owns and operates a transcontinental freight railway in Canada and
the United States. The company transports bulk commodities,
including grain, coal, potash, fertilizers, and sulphur; and
merchandise freight, such as energy, chemicals and plastics,
metals, minerals and consumer, automotive, and forest products.
Canadian Pacific Railway Limited was founded in 1881 and is
headquartered in Calgary, Canada.
CHARTER COMMUNICATIONS: Bid to Dismiss Harper Suit Granted in Part
------------------------------------------------------------------
In the case, LIONEL HARPER, DANIEL SINCLAIR, HASSAN TURNER, LUIS
VAZQUEZ, and PEDRO ABASCAL, individually and on behalf of all
others similarly situated and all aggrieved employees, Plaintiffs
v. CHARTER COMMUNICATIONS, LLC, Defendant, Case No. 2:19-cv-00902
WBS DMC (E.D. Cal.), Judge William B. Shubb of the U.S. District
Court for the Eastern District of California granted in part and
denied in part Charter's motion to dismiss.
Background
Plaintiffs Harper, Sinclair, Turner, Vazquez, and Abascal brought
the putative class action against their former employer, Charter
Communications, alleging various violations of the California Labor
Code. Among other things, the Plaintiffs allege that Charter
misclassified them and other California employees as "outside
salespersons," and consequently failed to pay them overtime wages,
failed to provide meal periods or rest breaks (or premium wages in
lieu thereof), and provided inaccurate wage statements.
The Plaintiffs worked for Charter in California, either as Account
Executives or as Direct Sales Representatives, for varying periods
from January 2015 until March 2020. Harper, the initial Plaintiff
in this action, worked for Charter until March 2018.
On Sept. 14, 2018, after his employment had ended, Harper filed a
notice with California's Labor and Workforce Development Agency
("LWDA"), sending a copy to Charter, to notify them of Charter's
alleged violations of the Labor Code. In the Notice, Harper
identified himself as "a former employee of Charter Communications,
LLC," specified that he sent the letter "on behalf of himself and
all aggrieved employees," and noted that he intended to bring a
civil PAGA action absent notice from the LWDA that it intended to
investigate the alleged violations.
Following an arbitration through JAMS, and after Harper did not
receive notice from the LWDA that it intended to investigate, on
May 3, 2019, he filed a complaint against Charter in Shasta County
Superior Court (1) alleging the same Labor Code violations, on
behalf of himself and all similarly situated individuals; (2)
alleging violation of the UCL; and (3) bringing a representative
PAGA action seeking civil penalties for the alleged Labor Code
violations.
Charter removed the case to the Court on May 17, 2019. Harper
subsequently amended his complaint twice, to add Plaintiffs
Sinclair, Turner, Vazquez, and Abascal, on Dec. 13, 2019 and June
4, 2021. He also subsequently submitted three amended notices to
the LWDA, to reference the other Plaintiffs and to add additional
detail, on Sept. 9, 2020, June 11, 2021, and July 15, 2021.
Charter now moves to dismiss (1) Count Five of the Plaintiffs'
second amended complaint, alleging unlawful calculation, deduction,
and payment of commission wages, to the extent that it is based on
alleged violations of Labor Code sections 204 and 2751; (2) Count
Nine of the complaint, alleging violation of California's Unfair
Competition Law ("UCL"), Cal. Bus. & Prof. Code Sections 17200 et
seq., in its entirety; and (3) Count Ten of the complaint, alleging
violation of California's Private Attorney General Act ("PAGA"),
Cal. Lab. Code Sections 2698 et seq., in its entirety.
Analysis
A. Counts Five (Commission Payments) and Nine (UCL)
In light of the Court's accompanying Order Re: Defendant's Motions
to Compel Arbitration, Judge Shubb will deny Charter's motion to
dismiss Count Five of the Second Amended Complaint in part and
Count Nine in its entirety as moot, without prejudice, as to
Plaintiffs Harper, Turner, Vazquez, and Abascal. Further, because
he has stayed resolution of those claims pending arbitration, Judge
Shubb will also deny the same portions of Charter's motion to
dismiss as moot, without prejudice, as to Plaintiff Sinclair.
Because only the resolution of Plaintiff Harper's PAGA claim has
not been stayed, in the Order Judge Shubb will only substantively
address Charter's motion to dismiss Count Ten of the complaint.
B. Count Ten (PAGA)
Charter seeks to dismiss Plaintiff Harper's PAGA claim in its
entirety, contending that because of various alleged deficiencies
in Harper's initial notice to the LWDA, he has failed to satisfy
PAGA's administrative exhaustion requirement. In particular,
Charter argues that the Notice was fatally deficient for purposes
of the PAGA claim because the Notice (1) failed to identify the
"aggrieved employees" on whose behalf Harper sought to bring a
representative PAGA action, (2) failed to set forth sufficient
"facts and theories" to provide the LWDA an adequate basis for
deciding whether to investigate the alleged violations and to
provide Charter an adequate basis for deciding whether and how
vigorously to defend itself, and (3) omitted certain theories under
which Harper alleges Labor Code violations under his PAGA claim;
and because (4) the amended notices Harper subsequently submitted
to the LWDA cannot suffice to cure these deficiencies because they
were submitted after PAGA's statute of limitations had run and
after the litigation had commenced.
1. Amendments and Operative Notice
The Plaintiffs argue that, to the extent the Notice might have
insufficiently described the "facts and theories" Harper alleges in
his PAGA claim, those inadequacies have been cured by subsequently
filed amended LWDA notices. However, as Judge Shubb explained in
his accompanying Order addressing the Plaintiffs' Motion for Leave
to File a Third Amended Complaint, amended LWDA notices filed after
PAGA's statute of limitations has run and after a civil PAGA action
has commenced cannot support that PAGA claim. Accordingly, in
evaluating whether PAGA's notice requirements have been satisfied
in order to decide the instant motion, he will look to the original
notice.
2. Identification of Aggrieved Employees
In moving to dismiss Plaintiff Harper's PAGA claim, Charter argues
that the Notice was inadequate to satisfy PAGA's prerequisites to
suit because it did not specify who the "aggrieved employees"
Harper sought to represent were. Charter also argues that Harper
may not challenge alleged violations of sections 226, 432, or
1198.5 because the relevant portion of the Notice did not reference
other employees.
Judge Shubb finds that the Notice makes clear that Harper sought to
challenge the violations alleged therein on a representative basis,
notwithstanding the fact that one portion of the Notice does not
specify this. Because the Notice's references to other employees
are even more prevalent, it sufficiently suggested that Harper
sought to pursue a representative claim as to all alleged Labor
Code violations, including sections 226, 432, and 1198.5.
3. Sufficiency of Facts and Theories in Notice
In its motion, Charter also argues that the Notice does not set
forth sufficient "facts and theories," as the term is used in the
PAGA statute, to have adequately informed the LWDA or Charter of
the alleged violations. Specifically, it argues that the Notice is
inadequate because it fails to reference plaintiffs' allegation
that they were misclassified. It also contends that many of the
Notice's allegations merely recite the requirements of the relevant
Labor Code provisions and assert that Charter did not comply with
them, and argues that consequently, the Notice does not satisfy
PAGA's administrative exhaustion requirement, requiring dismissal
of Harper's PAGA claim.
Judge Shubb agrees with Judge Birotte in the Central District of
California that, where a complaint puts forward multiple theories
of recovery under a single section of the Labor Code, the notice
need not describe each and every one, so long as it adequately
advises the LWDA of the scope of the alleged violations under that
section.
First, Judge Shubb finds that so long as Harper's notice satisfies
these standards, it is sufficient even absent specific reference to
misclassification. Second, he finds that by specifying that these
alleged violations occurred both during and after training periods,
and that, during training periods, they were the result of Charter
requiring employees to complete homework after a full day of work,
the Notice does more than repeat the statutory requirements and
allege violation thereof, thereby clearing the "minimal facts"
threshold. It is therefore sufficient to support Harper's PAGA
claim as to Charter's alleged violations of Labor Code sections
510, 1182.12, and 1197.
Third, the allegations are sufficient to support Harper's PAGA
claim as to the alleged violations of sections 221, 223, 224, and
2751. Fourth, in his PAGA claim, Harper may not challenge wage
statement violations that are alleged to have occurred prior to
July 11, 2017, and Judge Shubb will grant Charter's motion on that
limited basis. Finally, because he has already determined that the
other allegations were sufficient to support Harper's PAGA claim as
to those alleged violations, Judge Shubb must reject Charter's
argument.
Conclusion
In light of the foregoing, Judge Shubb denied in part Charter's
Motion to Dismiss Count Five of the Plaintiffs' Second Amended
Complaint in part and the Count Nine of the Plaintiffs' Second
Amended Complaint in its entirety is denied as moot without
prejudice to the motion being renewed in the event that the stay
ordered in the accompanying Order Re: Defendant's Motions to Compel
Arbitration is lifted.
Charter's Motion to Dismiss Count Ten of the Plaintiffs' Second
Amended Complaint, insofar as it is based on alleged violations of
Labor Code Sections 226 and 1174(d) that occurred prior to July 11,
2017, is granted. In all other respects Charter's Motion to Dismiss
Count Ten of the Plaintiffs' Second Amended Complaint is denied.
A full-text copy of the Court's Oct. 12, 2021 Order is available at
https://tinyurl.com/yy3ycrjx from Leagle.com.
CHARTER COMMUNICATIONS: Court Stays Harper Suit Pending Arbitration
-------------------------------------------------------------------
In the case, LIONEL HARPER, DANIEL SINCLAIR, HASSAN TURNER, LUIS
VAZQUEZ, and PEDRO ABASCAL, individually and on behalf of all
others similarly situated and all aggrieved employees, Plaintiffs
v. CHARTER COMMUNICATIONS, LLC, Defendant, Case No. 2:19-cv-00902
WBS DMC (E.D. Cal.), Judge William B. Shubb of the U.S. District
Court for the Eastern District of California:
(i) granted Charter's Motions to Compel Arbitration; and
(ii) stayed the action as to the claims presented in Counts
One through Nine of the Second Amended Complaint only
pending arbitration of Plaintiffs Lionel Harper, Daniel
Sinclair, Hassan Turner, Luis Vazquez, and Pedro
Abascal's individual claims.
Background
Plaintiffs Harper, Sinclair, Turner, Vazquez, and Abascal brought
the putative class action against their former employer, Charter
Communications, alleging various violations of the California Labor
Code. Among other things, the Plaintiffs allege that Charter
misclassified them and other California employees as "outside
salespersons," failed to pay them overtime wages, failed to provide
meal periods or rest breaks (or premium wages in lieu thereof), and
provided inaccurate wage statements.
Plaintiff Harper worked for Charter from September 2017 to March
2018. Upon hire, Harper signed an agreement to arbitrate "any and
all claims, disputes, and/or controversies between Harper and
Charter arising from or related to Harper's employment with
Charter," designating JAMS as the arbitration provider and stating
that JAMS rules, procedures, and policies would govern arbitrations
under that agreement ("JAMS Agreement"). The JAMS Agreement
included a waiver of representative, collective, and class actions
and a severance and so-called "poison pill" provision.
In October 2017, while Harper was still employed by Charter,
Charter adopted a new arbitration agreement requiring arbitration
of claims via "Solution Channel," Charter's employment-based legal
dispute resolution program, which provided for arbitration under
the rules of the American Arbitration Association. When announcing
the change, Charter notified employees that they would be bound by
the Solution Channel Agreement unless they opted out within 30
days. Harper did not do so.
In November 2018, Harper filed a Demand for Arbitration and Request
for Rulings as to Inarbitrability with JAMS, seeking a ruling on
whether his employment-related grievances against Charter could be
arbitrated under the JAMS Agreement. Charter consented to and
participated in the ensuing arbitration process with JAMS, and in
April 2019 an arbitrator issued an award finding that Harper's
wage-and-hour claims were inarbitrable and dismissing the
arbitration.
In May 2019, after Harper had initiated the action in state court,
Charter sought to enforce the Solution Channel Agreement against
Harper, who refused. In August 2019, the Court confirmed and
entered judgment pursuant to the JAMS arbitration award. Further,
the court found that there had been a novation as a result of
Charter's acquiescence to arbitration under the JAMS Agreement
rather than the Solution Channel Agreement, held that any rights
Charter had as against Harper under the Solution Channel Agreement
with respect to his wage-and-hour claims were thus "dead and
extinguished," and denied a motion by Charter to compel arbitration
under the Solution Channel Agreement.
In May 2021, Harper again sought employment with Charter via an
online application. When proceeding through Charter's online
application, applicants are presented with a webpage featuring
information about Charter's Solution Channel Agreement, with links
to the agreement itself and to Solution Channel Program Guidelines,
both of which applicants may save and print. To proceed with their
application, applicants are required to affirmatively agree to be
bound by the Solution Channel Agreement by clicking an "I Agree"
button. They are informed that if they do not agree, they will be
removed from consideration for employment; their application is not
submitted, and they are given the option to begin the application
process again. On May 23, 2021, Harper consented to the Solution
Channel Agreement and submitted an online application to Charter.
In addition to consenting to the Solution Channel Agreement in
order to complete Charter's online application, individuals who
accept offers of employment from Charter are again required to
consent to the same agreement, or else they cannot become a Charter
employee. Plaintiff Turner submitted an online application on May
23, 2018, consenting to the Solution Channel Agreement, and
subsequently completed Charter's employee onboarding process,
consenting to the agreement again. Plaintiff Vazquez did the same,
submitting his application on Oct. 9, 2019. Plaintiff Abascal did
as well, submitting his application on Nov. 5, 2019.
The Solution Channel Agreement contains several provisions
currently at issue. It requires parties to the agreement to resolve
"all disputes, claims and controversies that could be asserted in
court or before an administrative agency for which you or Charter
have an alleged cause of action related to pre-employment,
employment, employment termination or post-employment-related
claims," including wage-and-hour-related claims, through binding
arbitration.
The agreement specifically excludes certain claims from
arbitration, including "any claims that have already been filed in
federal or state court at the time you execute this Agreement,
provided that such claims were not previously subject to any
arbitration agreement." It also includes a merger clause, providing
that the Solution Channel Agreement represents the complete
agreement between parties on the resolution of covered disputes,
but noting that "this Agreement will not apply to the resolution of
any charges, complaints, or lawsuits that have been filed with an
administrative agency or court before the Effective Date of this
Agreement." Finally, like the JAMS Agreement, the Solution Channel
Agreement includes a waiver of representative, class, or collective
action claims.
Discussion
A. Applicability of the Solution Channel Agreement
Charter seeks to compel Plaintiffs Harper, Turner, Vazquez, and
Abascal to submit their California Labor Code and Unfair
Competition Law ("UCL") claims to arbitration on an individual
basis. The Plaintiffs contend that to do so, Charter must prove
that (1) a valid agreement to arbitrate exists and (2) the
agreement encompasses the claims Charter seeks to arbitrate.
Turner, Vazquez, and Abascal acknowledge that they each executed
the Solution Channel Agreement both when applying for employment
with Charter and when accepting their jobs, and Harper acknowledges
that he did when re-applying for employment with Charter in May
2021. On this basis, the Plaintiffs concede that a valid agreement
to arbitrate exists. Accordingly, the question becomes whether the
agreement applies to the Plaintiffs' Labor Code and UCL claims, of
which Charter seeks to compel arbitration.
1. Plaintiffs Turner, Vazquez, and Abascal
Charter argues that Vazquez and Abascal improperly seek to avoid
arbitration by, in essence, piggybacking off of Harper's
already-filed claims, which they did not join until well after
executing the agreement. It contends that because section C creates
exceptions to section B's requirement that various claims be
arbitrated, the two sections must be read together, and that
because section B by its terms applies to "claims for which you or
Charter have an alleged cause of action," the exclusion contained
in section C(14) is properly read to exclude only already-filed
claims between the signing party and Charter, rather than any
already-filed claims to which Charter is a party.
Judge Shubb agrees. Together with the FAA's mandate that any doubts
as to an arbitration agreement's applicability be resolved in favor
of arbitration, he concludes that the Solution Channel Agreement
applies to compel arbitration of Vazquez and Abascal's claims. The
Plaintiffs do not contest that the agreement applies to Turner's
claims, and sections C(14) and P clearly do not exclude them, as
the action had not yet been filed at the time he executed the
agreement. Accordingly, Judge Shubb concludes that the Solution
Channel Agreement applies to Turner's claims as well.
2. Plaintiff Harper
The Plaintiffs also contend that section P of the agreement
excludes Harper's claims from its coverage. They further argue
that, because the Court confirmed the JAMS arbitrator's award
finding that the JAMS agreement was "null and void," and because it
subsequently held that Charter's acquiescence to the JAMS
arbitration effected a novation of Harper's first Solution Channel
contract -- rendering it "dead and extinguished" -- Harper's claims
do not qualify as "previously subject to any arbitration agreement"
under section C(14).Accordingly, they argue that section C(14)
excludes Harper's claims from coverage under the agreement as
well.
Judge Shubb concludes that the Solution Channel Agreement applies
to Harper's claims. He finds that under the plain meaning of
"previous" -- earlier in time -- Harper's claims, at the time he
executed the Solution Channel Agreement in May 2021, were
"previously subject to" the earlier-signed copy of the same
agreement. As such, Harper's claims are not excluded from
arbitration under section C(14).
To the extent that Harper challenges Charter's ability to compel
him to arbitrate his individual claims arising out of his prior
employment because his latest execution of the Solution Channel
Agreement occurred when he applied for another position, Judge
Shubb says at least one other district court in California has
already held that the Solution Channel Agreement applies in such
circumstances. In Durruthy v. Charter Communications, LLC, like in
the instant case, the plaintiff was hired by Charter, was later
terminated, subsequently reapplied for employment, and in doing so
executed the agreement, which Charter then sought to enforce
against her. Judge Shubb agrees with the Durruthy court's analysis
of this issue.
B. Unconscionability
The Plaintiffs also argue that the Solution Channel Agreement is
unconscionable. If true, this would mean that the contract was not
validly entered into in the first instance, allowing the Court to
invalidate the agreement pursuant to the FAA's saving clause.
Because the Solution Channel Agreement is not substantively
unconscionable, Judge Shubb holds that the Plaintiffs'
unconscionability defense must fail. He says, regardless of the
particular degree of procedural unconscionability present, in order
for their unconscionability defense to succeed, the Plaintiffs must
also show that the agreement is substantively unconscionable. And
as the Court previously held in the related action between Harper
and Charter, in which Charter sought to enforce the Solution
Channel Agreement against him with respect to claims not present in
the current litigation, the agreement is not substantively
unconscionable. Because the agreement at issue in the litigation is
the same as the one upon which the Court ruled in the separate
litigation, and the Plaintiffs do not allege that it has changed,
Judge Shubb again concludes that the Solution Channel Agreement is
not substantively unconscionable.
C. California Labor Code Section 432.6
The Plaintiffs contend that under Chamber of Commerce, Charter's
use of the Solution Channel Agreement violates section 432.6
because Harper's consent to the agreement was a mandatory condition
for consideration of his application and for any subsequent
employment, with no ability to opt out. Per Chamber of Commerce's
clear language, however, whether this requirement violated section
432.6 has no effect on Judge Shubb's present decision to enforce
the Solution Channel Agreement: "Section 432.6 does not make
invalid or unenforceable any agreement to arbitrate, even if such
agreement is consummated in violation of the statute." The most
that Chamber of Commerce does to aid employees who seek to
challenge arbitration agreements is to simply reaffirm the
applicability of the FAA's saving clause to arbitration agreements
under section 432.6. However, the Court has addressed Harper's
"generally applicable contract defenses" and determined that they
do not apply. Chamber of Commerce thus has no impact on this
decision.
D. Motions to Dismiss or Stay Judicial Proceedings
In its motion to compel arbitration of Harper's Labor Code and UCL
claims, Charter requests that, should the Court grant that motion,
it stays the case -- including Harper's PAGA claim -- pending
arbitration of the other claims. Charter suggests that although it
has not sought arbitration of the PAGA claim, staying proceedings
as to the PAGA claim would avoid conflicting rulings between this
court as to the PAGA claim and the arbitrator as to the other
claims. The Plaintiffs oppose this request, pointing out that
because the Court will not be bound by any rulings the arbitrator
might make, staying Harper's PAGA claim would not in fact avoid
conflicting rulings. They further argue that proceedings as to the
PAGA claim should not be stayed because of the distinct nature of a
PAGA claim, which belongs to the state rather than to Harper.
Judge Shubb holds that because the Plaintiffs have requested a stay
of Turner, Vazquez, and Abascal's individual claims, he will stay
those claims pending arbitration. Additionally, because Charter has
requested that the court otherwise stay the case pending
arbitration of Harper's individual claims, because the Plaintiffs'
counsel supported a stay of Sinclair's individual claims at oral
argument, and because he agrees that a stay of Sinclair's claims
pending arbitration is "advisable," Judge Shubb will stay
Sinclair's individual claims pending arbitration as well.
However, because a stay would impede vindication of California's
interests in enforcing the Labor Code through representative PAGA
actions, discussed above, and because the PAGA claim represents a
distinct "action" in the case, Judge Shubb will not stay Harper's
PAGA claim.
Conclusion
For the foregoing reasons, Judge Shubb granted Charter's Motions to
Compel Arbitration. As to the claims presented in Counts One
through Nine of the Second Amended Complaint only, the action is
stayed pending arbitration of Plaintiff Harper, Turner, Vazquez,
and Abascal's individual claims.
A full-text copy of the Court's Oct. 12, 2021 Order is available at
https://tinyurl.com/3277m6p9 from Leagle.com.
CHASE DENNIS: Samora Seeks to Certify Class & Subclasses
--------------------------------------------------------
In the class action lawsuit captioned as JULIE SAMORA,
individually, and on behalf of others similarly situated, v. CHASE
DENNIS EMERGENCY MEDICAL GROUP, INC., a California Corporation;
TEAM HEALTH HOLDINGS, LLC, a Delaware corporation; and DOES 1
through 50, Case No. 5:20-cv-02027-BLF (N.D. Cal.), the Plaintiff
asks the Court to enter an order:
1. certifying that this action is maintainable as a class
action
pursuant to Federal Rules of Civil Procedure, Rules 23(a)
and 23(b)(3);
2. certify the following Class:
"All non-exempt employees of Defendants Chase Dennis
Emergency Medical Group ("CDEMG") and Team Health
Holdings, Inc. ("Team Health") in California during the
period of February 7, 2016 through the date of the order
granting class certification ("Class Period");"
3. certify the following Subclasses:
a. Clinical Employees:
i. Meal Period Subclass: All non-exempt clinical
employees of Defendants in California who worked one
or more shifts over five hours during the Class 17.
ii. Second Meal Period Subclass: All non-exempt clinical
employees of Defendants in California who worked one
or more shifts over ten hours during the Class
Period.
iii. Rest Break Subclass: All non-exempt clinical
employees of Defendants in California who worked one
or more shifts over 3.5 hours during the Class
Period.
iv. Off-the-Clock Subclass: All non-exempt clinical
employees of Defendants in California who worked any
off-the-clock time during the Class Period.
v. Overtime Rate Subclass: All non-exempt clinical
employees of Defendants during the Class Period who
worked at least one shift over eight hours long or
worked over forty hours in a workweek and also
earned at least one other form of non-discretionary
remuneration (such as shift differentials and other
bonuses) during the same pay period.
vi. Wage-Statement Subclass: All non-exempt clinical
employees of Defendants during the Class Period who
received a wage statement from 5 during the Class
Period reflecting incorrect information, 6 the
identity of the employer, the incorrect overtime
rate, or failing to indicate the total hours worked.
vii. Reimbursement Subclass: All non-exempt clinical
employees of Defendants during the Class Period who
incurred necessary business expenses for which they
were not reimbursed.
viii. In the event that the Court finds the proposed class
or any of the subclasses suitable for class
treatment, Plaintiff also seeks certification of the
following derivative claims for clinical employees:
-- Failure to maintain required employment records;
-- Failure to pay all wages due to discharged and
quitting employees;
-- Failure to furnish accurate, itemized wage
statements; and
-- Unfair business practices.
b. Non-Clinical Employees:
i. Meal Period Subclass: All non-exempt non-clinical
employees of Defendants in California who worked one
or more shifts over five hours 21 the Class Period.
ii. Second Meal Period Subclass: All non-exempt non-
clinical employees of Defendants in California who
worked one or more shifts over ten hours during the
Class Period.
iii. Rest Break Subclass: All non-exempt non-clinical
employees of Defendants in California who worked one
or more shifts over 3.5 hours during the Class 27.
iv. Off-the-Clock Subclass: All non-exempt non-clinical
employees of Defendants in California who worked any
off-the-clock time during the Class Period.
v. Overtime Rate Subclass: All non-exempt non-clinical
employees of Defendants during the Class Period who
worked at least one shift over eight hours long or
worked over forty hours in a workweek and also
earned at least one other form of non-discretionary
remuneration (such as shift differentials and other
bonuses) during the same pay period.
vi. Wage-Statement Subclass: All non-exempt non-clinical
employees of Defendants during the Class Period who
received a wage statement from Defendants during the
Class Period reflecting incorrect information,
including the identity of the employer, the
incorrect overtime rate, or failing to indicate the
total hours worked.
vii. Reimbursement Subclass: All non-exempt non-clinical
employees of Defendants during the Class Period who
incurred necessary business expenses for which they
were not reimbursed.
viii. In the event that the Court finds the proposed class
or any of the subclasses suitable for class
treatment, Plaintiff also seeks certification of the
following derivative claims for clinical employees:
-- Failure to maintain required employment records;
-- Failure to pay all wages due to discharged and
quitting employees;
-- Failure to furnish accurate, itemized wage
statements; and
-- Unfair business practices.
4. appointing Plaintiff Julie Samora and Tiana Beard as
representatives for the proposed Classes; and
5. appointing Matern Law Group, PC, Matthew J. Matern, Joshua
D. Boxer, and Sara B. Tosdal as Class Counsel for the
proposed Classes.
The Plaintiff Samora and class member, Tiana Beard, seek to
represent the classes of nonexempt employees who worked for
Defendants Chase Dennis Emergency Medical Group and Team Health
Holdings, Inc.
The Defendants maintain a uniform policy for hourly, nonexempt
employees in California that provided for meal breaks beginning
before the end of the fifth hour of work, and before the end of the
tenth hour of work for second meal breaks, the lawsuit says.
The Plaintiff's theories of liability are amenable to class
treatment because they raise common questions that will be answered
on the basis of uniform policies and practices that applied to all
class members. "Claims alleging a uniform policy consistently
applied to a group of employees in violation of the wage and hour
laws are of the sort routinely, and properly, found suitable for
class treatment."
The Defendants are companies that contract with medical facilities
to provide health care employees, including in the areas of
emergent and urgent care, at facilities throughout California,
including at least Regional Medical Center and Valley Health
Downtown Urgent Care in San Jose, California, and Lodi Memorial
Hospital in Lodi, California. Defendants also provide
administrative services in the health care industry, such as
patient and billing services, in at least Pleasanton, California
and in North Hollywood and West Hills, California.
A copy of the Plaintiff's motion to certify class dated Oct. 15,
2021 is available from PacerMonitor.com at https://bit.ly/2ZlOQhX
at no extra charge[CC]
The Plaintiff is represented by:
Matthew J. Matern, Esq.
Joshua D. Boxer, Esq.
Sara B. Tosdal, Esq.
MATERN LAW GROUP, PC
1230 Rosecrans Avenue, Suite 200
Manhattan Beach, CA 90266
Telephone: (310) 531-1900
Facsimile: (310) 531-1901
E-mail: mmatern@maternlawgroup.com
jboxer@maternlawgroup.com
stosdal@maternlawgroup.com
COUNSELING ALLIANCE: Shortchanges Workers' Wages, Carter Says
-------------------------------------------------------------
Kevin Carter, individually and on behalf of all others similarly
situated, v. Counseling Alliance of Virginia, LLC (CAVA),
Defendant, Case No. 21-cv-00035, (W.D. Va., October 11, 2021) seeks
declaratory judgment, monetary damages, liquidated damages, costs
and a reasonable attorneys' fees, as a result of Defendant's
failure to pay minimum wages under the Fair Labor Standards Act.
CAVA operates a counseling business. CAVA allegedly withheld at
least two entire paychecks from Carter. This resulted in Carter not
receiving minimum wages, or any pay, for at least four weeks of
work. CAVA paid Carter only for the hours he worked directly with
clients, and did not pay for other work besides client-facing work
resulting in his actual hourly pay rate being considerably lower
than the rate he is paid for client interactions. [BN]
Plaintiff is represented by:
Timothy Coffield, Esq.
COFFIELD PLC
106F Melbourne Park Circle
Charlottesville, VA 22901
Tel: (434) 218-3133
Fax: (434) 321-1636
Email: tc@coffieldlaw.com
CUYAHOGA COUNTY, OH: Seeks to Extend Deadline for Class Cert. Brief
-------------------------------------------------------------------
In the class action lawsuit captioned as SHAVANDA BECK, ET AL., v.
COUNTY OF CUYAHOGA, Case No. 1:19-cv-00818-CAB (N.D. Ohio), the
Defendant asks the Court to enter an order extending the deadline
for their brief in opposition to Plaintiffs' renewed motion for
class certification.
The current deadline for Defendant's brief in opposition is
November 20, 2021. The Defendant seeks a 14-day extension of the
deadline, which would make Defendant's new deadline November 3,
2021.
There is just cause for this extension because the undersigned
counsel has been busy with other matters and needs additional time
to complete the opposition. Additionally, the evidentiary hearing
on this motion has been set for February 11, 2021, and this short
extension will not delay the hearing, the Defendant says.
The Plaintiffs' counsel does not oppose this request for an
extension. This is the first motion for an extension of time for
these deadlines, the Defendant adds.
A copy of the Defendant's motion dated Oct. 15, 2021 is available
from PacerMonitor.com at https://bit.ly/311dtAV at no extra
charge[CC]
The Defendant is represented by:
Michael C. O'Malley, Esq.
Kenneth Rock, Esq.
THE JUSTICE CENTER, COURTS TOWER
1200 Ontario Street, 8th Floor
Cleveland, OH 44113
Telephone: (216) 443-7825
Facsimile: (216) 443-7602
E-mail: krock@prosecutor.cuyahogacounty.u
CVS PHARMACY: Christian Piescik Seeks to Certify Rule 23 Classes
----------------------------------------------------------------
In the class action lawsuit captioned as CHRISTIAN PIESCIK, on
behalf of himself and those similarly situated, v. CVS PHARMACY,
INC., Case No. 9:21-cv-81298-DMM (S.D. Fla.), the Plaintiff asks
the Court to enter an order:
1. certifying a Rule 23(b)(3) damages Class and a Rule 23(b)
(2) Class to pursue injunctive relief; and.
2. appointing him as the Class representative;
3. appointing his counsel as Class Counsel.
CVS Pharmacy is headquartered in Woonsocket, Rhode Island and
primarily produces and sells health products.
The Defendant sells at its stores and elsewhere certain items from
its own brand, such as alcohol-based hand-sanitizer, which are
manufactured by multiple entities. Defendant includes, printed on
the bottles which contain its hand-sanitizer, a statement that the
product kills 99.99% of germs.
CVS's Original Scent Moisturizing hand-sanitizer and all similar
CVS brand hand-sanitizers state on their bottles, "Kills 99.99% of
Germs." These statements, in that they are made with a degree of
certainty to the hundredth digit, necessarily imply that a
scientific study proves that the product in fact kills 99.99% of
germs. Accordingly, they are each false statements, as no
scientific study supports them, the Plaintiff contends.
The Plaintiff is an individual who purchased CVS brand
alcohol-based hand-sanitizer from one of Defendant's retail
stores.
A copy of the Plaintiff's motion to certify class dated Oct. 15,
2021 is available from PacerMonitor.com at https://bit.ly/3CezWYL
at no extra charge[CC]
The Plaintiff is represented by:
William C. Wright, Esq.
THE WRIGHT LAW OFFICE, P.A.
515 N. Flagler Drive, Suite P-300
West Palm Beach, FL 33401
Telephone: (561) 514-0904
Facsimile: (561) 514-0905
E-mail: willwright@wrightlawoffice.com
- and -
Daniel Faherty, Esq.
TELFER, FAHERTY, &
ANDERSON, PL
815 S. Washington Avenue, Suite 201
Titusville, FL 32780
Telephone: (321) 269-6833
Facsimile: (321) 383-9970
E-mail: danfaherty@hotmail.com
DINO PALMIERI: Torres Loses Bid for Class Certification
-------------------------------------------------------
In the class action lawsuit captioned as DAHIANNA TORRES, et al.,
v. DINO PALMIERI SALONS, INC., et al., Case No. 1:19-cv-01501-JPC
(N.D. Ohio), the Hon. Judge J. Philip Calabrese entered an order:
1. denying the Defendants' motion to strike; and
2. denying Plaintiffs' motion for class certification based
on the rigorous analysis that Rule 23 requires.
The Court said, "In each of the five classes Plaintiffs seek to
certify, the Plaintiffs fail to carry their burden of demonstrating
that common questions predominate over individual issues.
Adjudicating liability for those in the Minimum Wage Prompt Pay
Class and the Prompt Pay Class turns on whether the pay practices
Plaintiffs challenge caused class members to fall below the minimum
wage. But the record demonstrates that answering that question
turns on facts specific to individual employees. The deductions and
other practices at issue may result in some employees receiving
less than the minimum wage, while others remained above that floor.
Accordingly, the questions at issue are not appropriate for
resolution through the class device."
A copy of the Court's order dated Oct. 15, 2021 is available from
PacerMonitor.com at https://bit.ly/3ChKFBN at no extra charge[CC]
EQUIFAX INC: Consumer Class Suits in Georgia Stayed
---------------------------------------------------
Equifax Inc. said in its Form 10-Q Report filed with the Securities
and Exchange Commission on October 21, 2021, for the quarterly
period ended September 30, 2021, that the class action suits
pending before the Fulton County Business Court in Georgia remains
stayed.
In 2017, the company experienced a cybersecurity incident following
a criminal attack on its systems that involved the theft of certain
personally identifiable information of U.S., Canadian and U.K.
consumers. Following the 2017 cybersecurity incident, hundreds of
class actions and other lawsuits were filed against the company
typically alleging harm from the incident and seeking various
remedies, including monetary and injunctive relief.
Four putative class actions arising from the 2017 cybersecurity
incident were filed against us in Fulton County Superior Court and
Fulton County State Court in Georgia based on similar allegations
and theories as alleged in the U.S. Consumer MDL Litigation and
seek monetary damages, injunctive relief and other related relief
on behalf of Georgia citizens.
These cases were transferred to a single judge in the Fulton County
Business Court and three of the cases were consolidated into a
single action.
On July 27, 2018, the Fulton County Business Court granted the
Company's motion to stay the remaining single case, and on August
17, 2018, the Fulton County Business Court granted the Company's
motion to stay the consolidated case.
These cases remain stayed pending final resolution of the U.S.
Consumer MDL Litigation.
No further updates were provided in the Company's SEC report.
Equifax Inc. provides information solutions and human resources
business process outsourcing services for businesses, governments,
and consumers. The company operates through four segments: U.S.
Information Solutions (USIS), International, Workforce Solutions,
and Global Consumer Solutions. Equifax Inc. was founded in 1899 and
is headquartered in Atlanta, Georgia.
EQUIFAX INC: Putative Class Suits Underway in Canada
-----------------------------------------------------
Equifax Inc. said in its Form 10-Q Report filed with the Securities
and Exchange Commission on October 21, 2021, for the quarterly
period ended September 30, 2021, that the company continues to
defend class action suits in Ontario, British Columbia and Alberta,
Canada.
Five putative Canadian class actions, four of which are on behalf
of a national class of approximately 19,000 Canadian consumers, are
pending against us in Ontario, British Columbia and Alberta.
Each of the proposed Canadian class actions asserts a number of
common law and statutory claims seeking monetary damages and other
related relief in connection with the 2017 cybersecurity incident.
In addition to seeking class certification on behalf of Canadian
consumers whose personal information was allegedly impacted by the
2017 cybersecurity incident, in some cases, plaintiffs also seek
class certification on behalf of a larger group of Canadian
consumers who had contracts for subscription products with Equifax
around the time of the incident or earlier and were not impacted by
the incident.
On December 13, 2019, the court in Ontario granted certification of
a nationwide class that includes all impacted Canadians as well as
Canadians who had subscription products with Equifax between March
7, 2017 and July 30, 2017 who were not impacted by the incident.
The company appealed one of the claims on which a class was
certified and on June 9, 2021, the company's appeal was granted by
the Ontario Divisional Court. The plaintiff as since filed a notice
of further appeal. All remaining purported class actions are at
preliminary stages or stayed.
Equifax Inc. provides information solutions and human resources
business process outsourcing services for businesses, governments,
and consumers. The company operates through four segments: U.S.
Information Solutions (USIS), International, Workforce Solutions,
and Global Consumer Solutions. Equifax Inc. was founded in 1899 and
is headquartered in Atlanta, Georgia.
INTUITIVE SURGICAL: Bid to Dismiss Consolidated Class Suit Pending
------------------------------------------------------------------
Intuitive Surgical, Inc. said in its Form 10-Q Report filed with
the Securities and Exchange Commission on October 20, 2021, for the
quarterly period ended September 30, 2021, that the motion to
dismiss the consolidated amended class action complaint entitled,
In Re: da Vinci Surgical Robot Antitrust Litigation, is pending.
Three class action complaints were filed against the Company in the
Northern District of California Court alleging anti-trust
allegations relating to the service and repair of certain
instruments manufactured by the Company.
A complaint by Larkin Community Hospital was filed on May 20, 2021,
a complaint by Franciscan Alliance, Inc. and King County Public
Hospital District No. 1 was filed on July 6, 2021, and a complaint
by Kaleida Health was filed on July 8, 2021.
The Court has consolidated the Franciscan Alliance, Inc. and King
County Public Hospital District No. 1 and Kaleida Health cases with
the Larkin Community Hospital case, which is now captioned on the
Larkin docket as "In Re: da Vinci Surgical Robot Antitrust
Litigation."
A Consolidated Amended Class Action Complaint has been filed on
behalf of each plaintiff named in the earlier-filed cases.
The Company filed a Motion to Dismiss this Consolidated Amended
Class Action Complaint on October 11, 2021.
Intuitive said, "Based on currently available information, the
Company is unable to make a reasonable estimate of loss or range of
losses, if any, arising from these matters."
Intuitive Surgical, Inc., is an American corporation that develops,
manufactures and markets robotic products designed to improve
clinical outcomes of patients through minimally invasive surgery,
most notably with the da Vinci Surgical System.
KONINKLIJKE PHILIPS: Hill Suit Transferred to W.D. Pennsylvania
---------------------------------------------------------------
The case styled as Joseph A. Hill, Heather Hill, Maxwell Hill by
his next friends and parents Joseph A. Hill and Heather Hill, and
on behalf of themselves and all others similarly situated v.
Koninklijke Philips N.V., Philips North America LLC, Philips
Holding USA Inc., Philips RS North America LLC, Case No.
1:21-cv-02454 was transferred from the United States District Court
for the Southern District of Indiana to the United States District
Court for the Western District of Pennsylvania on Oct. 21, 2021.
The District Court Clerk assigned Case No. 2:21-cv-01439-JFC to the
proceeding.
The nature of suit is stated as Contract Product Liability.
Koninklijke Philips N.V. -- https://www.philips.com/global -- is a
Dutch multinational conglomerate corporation that was founded in
Eindhoven.[BN]
The Plaintiffs are represented by:
Andrea Barient, Esq.
24110 EDEN ST
PLAQUEMINE, LA 70765
Phone: (225) 975-0150
Email: abarient@pbclawfirm.com
- and -
David E. Miller, Esq.
SAEED & LITTLE LLP
133 West Market Street, No. 189
Indianapolis, IN 46204
Phone: (317) 371-5535
Fax: (888) 422-3151
Email: david@sllawfirm.com
- and -
John M. Deakle, Esq.
PO BOX 2072
HATTIESBURG, MS 39403
Phone: (601) 544-0631
Fax: (601) 544-0666
Email: jmd@deaklelawfirm.com
- and -
Patrick w. Pendley, Esq.
24110 EDEN ST
PO DRAWER 71
PLAQUEMINE, LA 70764
Phone: (225) 687-6396
Fax: (225) 687-6398
Email: pwpendley@pbclawfirm.com
KONINKLIJKE PHILIPS: Miller Suit Transferred to W.D. Pennsylvania
-----------------------------------------------------------------
The case styled as Brad Miller, Mark Mackenzie, on behalf of
themselves and all others similarly situated v. Koninklijke Philips
N.V., Philips North America LLC, Philips RS North America LLC, Case
No. 3:21-cv-01174 was transferred from the United States District
Court for the District of Oregon to the United States District
Court for the Western District of Pennsylvania on Oct. 21, 2021.
The District Court Clerk assigned Case No. 2:21-cv-01430-JFC to the
proceeding.
The nature of suit is stated as Contract Product Liability.
Koninklijke Philips N.V. -- https://www.philips.com/global -- is a
Dutch multinational conglomerate corporation that was founded in
Eindhoven.[BN]
The Plaintiffs are represented by:
Gabriel A. Panek, Esq.
David S. Stellings, Esq.
Katherine I. McBride, Esq.
LIEFF CABRASER HEIMANN & BERNSTEIN, LLP
250 Hudson Street, 8th Floor
New York, NY 10013
Phone: (212) 355-9500
Fax: (212) 355-9592
Email: gpanek@lchb.com
dstellings@lchb.com
kmcbride@lchb.com
- and -
Robert H. Klonoff, Esq.
JONES DAY
51 Louisiana Avenue, NW
Metropolitan Square
Washington, DC 20001
Phone: (202) 879-3939
The Defendants are represented by:
Anthony R. Scisciani, III, Esq.
HOLT WOODS & SCISCIANI LLP
701 Pike Street, Suite 2200
Seattle, WA 98101
Phone: (206) 262-1200
Email: ascisciani@scheerlaw.com
KONINKLIJKE PHILIPS: Mitrovich Suit Transferred to W.D. Pa.
-----------------------------------------------------------
The case styled as Lisa Mitrovich, individually and on behalf of
herself and all others similarly situated v. Koninklijke Philips
N.V., Philips North America LLC, Philips RS North America LLC, Case
No. 2:21-cv-05793 was transferred from the United States District
Court for the Central District of California to the United States
District Court for the Western District of Pennsylvania on Oct. 21,
2021.
The District Court Clerk assigned Case No. 2:21-cv-01499-JFC to the
proceeding.
The nature of suit is stated as Contract Product Liability for the
Magnuson-Moss Warranty Act.
Koninklijke Philips N.V. -- https://www.philips.com/global -- is a
Dutch multinational conglomerate corporation that was founded in
Eindhoven.[BN]
The Plaintiffs are represented by:
David M Birka-White, Esq.
BIRKA-WHITE LAW OFFICES
178 East Prospect Avenue
Danville, CA 94526
Phone: (925) 362-9999
Fax: (925) 362-9970
Email: dbw@birka-white.com
- and -
Geoffrey P Norton, Esq.
NORTON AND MELNIK
20920 Warner Cener Lane Suite B
Woodland Hills, CA 91367
Phone: (818) 999-9500
Fax: (818) 999-9155
Email: gnorton@nortonmelnik.com
The Defendants are represented by:
Molly Moriarty Lane, Esq.
MORGAN, LEWIS & BOCKIUS LLP
One Market
Spear Street Tower
San Francisco, CA 94105-1126
Phone: (415) 442-1000
Fax: (415) 442-1001
Email: molly.lane@morganlewis.com
KONINKLIJKE PHILIPS: Murray Suit Transferred to W.D. Pennsylvania
-----------------------------------------------------------------
The case styled as Edwin Murray, on behalf of himself and all
others similarly situated v. Koninklijke Philips N.V., Philips
North America LLC, Philips RS North America LLC, Case No.
1:21-cv-11598 was transferred from the United States District Court
for the District of Massachusetts to the United States District
Court for the Western District of Pennsylvania on Oct. 21, 2021.
The District Court Clerk assigned Case No. 2:21-cv-01493-JFC to the
proceeding.
The nature of suit is stated as Contract Product Liability.
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:
John F. Dew, Esq.
COHEN KINNE VAALICENTI & COOK LLP
28 North Street, 3rd Floor
Pittsfield, MA 01201
Phone: (413) 443-9399
Email: jdew@cohenkinne.com
KONINKLIJKE PHILIPS: Saunders Suit Transferred to W.D. Pennsylvania
-------------------------------------------------------------------
The case styled as Michael Paul Saunders, on behalf of himself and
all others similarly situated v. Koninklijke Philips N.V., Philips
North America LLC, Philips RS North America LLC, Case No.
1:21-cv-02555 was transferred from the United States District Court
for the Southern District of Colorado to the United States District
Court for the Western District of Pennsylvania on Oct. 21, 2021.
The District Court Clerk assigned Case No. 2:21-cv-01427-JFC to the
proceeding.
The nature of suit is stated as Contract Product Liability.
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:
Margaret E. Foley, Esq.
DOWNS MCDONOUGH COWAN & FOLEY, LLC
2051 Main Avenue
Durango, CO 81301
Phone: (970) 247-8020
Email: meg@swcolaw.com
KONINKLIJKE PHILIPS: Sizemore Suit Transferred to W.D. Pennsylvania
-------------------------------------------------------------------
The case styled as Richard Sizemore, Jimmy Brooks, Aubrie Hughes,
Eric Phillips, Jared Luke, Eric Davis, 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.
1:21-cv-00134 was transferred from the United States District Court
for the Middle District of Georgia to the United States District
Court for the Western District of Pennsylvania on Oct. 21, 2021.
The District Court Clerk assigned Case No. 2:21-cv-01421-JFC to the
proceeding.
The nature of suit is stated as Contract Product Liability.
Koninklijke Philips N.V. -- https://www.philips.com/global -- is a
Dutch multinational conglomerate corporation that was founded in
Eindhoven.[BN]
The Plaintiffs are represented by:
Jeff P. Shiver, Esq.
3340 Peachtree Rd., Ste. 950
Atlanta, GA 30326
Phone: (404) 593-0020
Email: jeff@shiverhamilton.com
- and -
Joseph Shane Hudson, Esq.
PO BOX 2520
TIFTON, GA 31793
Phone: (229) 396-5845
Fax: (229) 396-5845
Email: jshudson@hudsoninjuryfirm.com
- and -
Kyle Gregory Wallace, Esq.
3490 Piedmont Road, Suite 640
Atlanta, GA 30305
Phone: (404) 593-0020
Fax: (888) 501-9536
Email: kwallace@shiverhamilton.com
The Defendants are represented by:
Thomas J. Mazziotti, Esq.
191 Peachtree St. NE, Ste. 2900
Atlanta, GA 30303-1775
Phone: (404) 954-6941
Fax: (404) 954-5020
Email: tmazziotti@hallboothsmith.com
LOS ANGELES, CA: Appeals Reconsideration Bid Denial in Hunt Case
----------------------------------------------------------------
Defendant County of Los Angeles filed an appeal from a court ruling
entered in the lawsuit styled BRYAN HUNT, individually and on
behalf of all others similarly situated v. CITY OF LOS ANGELES;
COUNTY OF LOS ANGELES; DOES 1 through 100, inclusive, Case No.
2:21-cv-06059-PA-RAO, in the U.S. District Court for the Central
District of California, Los Angeles.
This case arose from the Defendants' alleged violations of the
California Labor Code and the California Business and Professions
Code including failure to pay minimum wages, failure to pay
overtime wages, and unfair business practices.
On July 27, 2021, the lawsuit 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.
At the hearing held on August 2, 2021, Judge Percy Anderson held
that the Notice of Removal is procedurally defective because the
City has not consented or joined in the Notice of Removal.
Moreover, the Notice of Removal did not include a sufficient
explanation for the absence of a joinder by the City, or any reason
why the City's joinder was not necessary.
Counsel for plaintiff declined to waive the procedural defect.
Accordingly, the action was remanded to Los Angeles County Superior
Court under Case No. 21STCV23052.
Defendant County of Los Angeles filed a motion for reconsideration
of this ruling, which the court denied on September 15, 2021. Judge
Anderson ruled that it lacks jurisdiction to consider the County's
Motion for Reconsideration and that even if it could consider the
Motion, the County has failed to satisfy its burden to establish
that reconsideration is warranted.
"The simple fact remains that the County's Notice of Removal was
procedurally defective and that Plaintiff did not waive that
procedural defective and instead sought to have the action remanded
to Los Angeles Superior Court. The Court committed no error in
remanding the action to Los Angeles Superior Court. The Court
therefore denies the County's Motion for Reconsideration and this
action remains pending in Los Angeles Superior Court," Judge
Anderson opined.
The Defendant now seeks a review of the Court's September 15, 2021
Order. The appellate case is captioned as Bryan Hunt v. County of
Los Angeles, et al., Case No. 21-56106, in the United States Court
of Appeals for the Ninth Circuit, filed on October 12, 2021.
The briefing schedule in the Appellate Case states that:
-- Appellant County of Los Angeles Mediation Questionnaire was
due October 19, 2021;
-- Transcript shall be ordered by November 12, 2021;
-- Transcript is due on December 13, 2021;
-- Appellant County of Los Angeles opening brief is due on
January 20, 2022;
-- Appellee Bryan Hunt answering brief is due on February 22,
2022; and
-- Appellant's optional reply brief is due 21 days after service
of the answering brief.[BN]
Defendant-Appellant COUNTY OF LOS ANGELES, a public entity, is
represented by:
Elizabeth Arce, Esq.
Geoffrey S. Sheldon, Esq.
Jeffrey Edward Stockley, Esq.
LIEBERT CASSIDY WHITMORE
6033 West Century Boulevard, 5th Floor
Los Angeles, CA 90045-6415
Telephone: (310) 981-2000
E-mail: earce@lcwlegal.com
gsheldon@lcwlegal.com
jstockley@lcwlegal.com
Plaintiff-Appellee BRYAN HUNT, individually, and on behalf of all
others similarly situated, is represented by:
Charles M. Ray, Esq.
Spencer Laurence Seyb, II, Esq.
REY AND SEYB LLP
17671 Irvine Blvd., Suite 208
Tustin, CA 92780
Telephone: (949) 734-7333
E-mail: c.ray@rayseyb.com
s.seyb@rayseyb.com
LOWE'S COMPANIES: Judgment Entered in Favor of Aon in Reetz Suit
----------------------------------------------------------------
In the case, BENJAMIN REETZ, individually and as the representative
of a class of similarly situated persons, Plaintiff v. LOWE'S
COMPANIES, INC.; ADMINISTRATIVE COMMITTEE OF LOWE'S COMPANIES, INC.
AND AON HEWITT INVESTMENT CONSULTING, INC., Defendants, Civil
Action No. 5:18-CV-00075-KDB-DCK (W.D.N.C.), Judge Kenneth D. Bell
of the U.S. District Court for the Western District of North
Carolina, Statesville Division, entered judgment in favor of Aon on
the Plaintiff's claims.
Background
In the certified class action, Plaintiff Reetz, a former employee
of Defendant Lowe's, alleges that Lowe's, the Administrative
Committee of Lowe's Companies, Inc. and investment advisor Aon
Hewitt Investment Consulting, Inc., breached their fiduciary duties
to the Lowe's 401(k) Retirement Plan. Broadly stated, the Plaintiff
claims that the Defendants violated the Employee Retirement Income
Security Act ("ERISA"), 29 U.S.C. Section 1001, et seq., by
limiting the menu of investment choices available to Plan
participants and moving over a billion dollars in Plan assets to
one of Aon's own investment funds, resulting in a substantial loss
of investment gains in the retirement accounts of the current and
former Lowe's employees in the class.
The Plaintiff filed the class action lawsuit on April 18, 2018, and
subsequently filed a First Amended Complaint ("FAC") on March 23,
2020, which remains the operative complaint in the action. The FAC
asserted claims under ERISA against Aon, Lowe's and the Committee
in connection with the management of the Lowe's 401(k) Retirement
Plan during the class period.
Specifically, the FAC asserted the following claims against the
Defendants:
a. Count 1 — Breach of the duties of loyalty and prudence
under 29 U.S.C. Section 1104(a)(1)(A)-(B) (both claims were
originally asserted against all Defendants, but the breach of
loyalty claim ultimately was pursued only against Aon); and
b. Count 2 — Failure to monitor fiduciaries (asserted only
against Lowe's and the Committee).
On Oct. 28, 2020, the Parties stipulated to class certification. On
Nov. 5, 2020, the Court issued an Order preliminarily granting the
Parties' stipulation regarding certification of the following
class: "All participants and beneficiaries of the Lowe's 401(k)
Plan whose Plan account balances were invested in the Aon Growth
Fund at any time on or after Oct. 1, 2015, excluding the
Defendants, any of their directors, and any officers or employees
of the Defendants with responsibility for the Plan's investment or
administrative functions."
The Plaintiff's claims against Lowe's and the Committee were
resolved through a class action settlement, which the Court
approved on Sept. 9, 2021. The settlement did not end the dispute
between the Class and Aon, which proceeded to a five-day bench
trial held from June 29, 2021 to July 2, 2021. During the trial,
the Parties collectively presented live testimony from 10 lay and
expert witnesses, offered testimony by deposition designations, and
moved into evidence more than a thousand exhibits (although a much
smaller number were actually used or referenced at trial). In
addition, the counsel presented opening and closing statements to
the Court. Finally, at the end of the trial, the Court agreed to
receive post-trial proposed findings of fact and conclusions of law
from the Parties, which were filed on Aug. 31, 2021 and span over
300 pages.
Discussion
Judge Bell has carefully reviewed and considered all the
testimonial and documentary evidence presented by the Parties as
well as the arguments and submissions of their counsel. He finds
that Aon did not breach its fiduciary duty as an investment advisor
to the Plan in proposing and encouraging Lowe's to change the
Plan's investment structure and menu of investment options nor did
it violate ERISA in its efforts to "cross-sell" its delegated
fiduciary services, which Lowe's -- a large, sophisticated
corporation -- independently decided to engage.
Also, Judge Bell concludes that although the Aon Growth Fund that
Aon selected as the Plan's delegated fiduciary investment manager
did not generate as much investment gains as other investment
options that, in hindsight, would have fared better, it did not
breach its fiduciary duty to the Plan in selecting and maintaining
the Aon Growth Fund as the primary actively managed "equity"
investment option in the Plan.
In addition, considering all the relevant facts and circumstances,
the remedial purpose of ERISA and in the exercise of its
discretion, the Court concludes that there are several good reasons
why Aon should not recover any fees or costs in the action. First,
Plaintiff has not acted in bad faith in his conduct with respect to
the Plan or Aon or in bringing or prosecuting the action. Further,
from the evidence presented, it appears unlikely that Plaintiff, a
former Lowe's non-executive hourly employee, has the means to
satisfy a significant award of attorneys' fees or costs.
With respect to whether an award of attorneys' fees against the
opposing party would deter other persons acting under similar
circumstances, Judge Bell finds that an award of fees or costs
against the Plaintiff might well deter others from filing or
participating in appropriate yet uncertain litigation; so, in light
of the remedial purpose of ERISA this factor favors not making an
award to Aon. Similarly, the Plaintiff sought to benefit all
participants and beneficiaries of the Lowe's ERISA plan in his
action.
Finally, Judge Bell finds that while on balance the facts and law
amply support his decision to enter judgment in Aon's favor on all
of the Plaintiff's claims, there was also support for the
Plaintiff's positions as described.
Accordingly, applying the relevant factors, Judge Bell exercises
his discretion to require the parties to bear their own attorneys'
fees and costs with respect to the claims between the Plaintiff and
Aon.
Order
Judge Bell entered judgment in favor of Aon on the Plaintiff's
claims. He exercises his discretion to order the parties to each
bear their own costs and attorneys' fees with respect to the
dispute between the Plaintiff and Aon.
A full-text copy of the Court's Oct. 12, 2021 Memorandum of
Decision & Order is available at https://tinyurl.com/5ampdfj5 from
Leagle.com.
MANUFACTURERS AND TRADERS: Flynn Suit Seeks to Certify Class Action
-------------------------------------------------------------------
In the class action lawsuit captioned as EDWARD R. FLYNN, GENE
DAISEY, DOUGLAS J. ABBOTT, PERCY CHAPMAN, and JANENE CHAPMAN,
individually and on behalf of all others similarly situated, v.
MANUFACTURERS AND TRADERS TRUST COMPANY a/k/a M&T BANK, Case No.
2:17-cv-04806-WB (E.D. Pa.), the Plaintiff asks the Court to enter
an order:
1. certifying case as class action;
2. appointing their counsel as class counsel;
3. appointing them as representative plaintiffs; and
4. approving their proposed class notice.
The Plaintiffs propose the following classes and alternative
classes:
A. Class 1 ("Notice of Repossession Class") is defined as:
All persons:
A. who entered into a retail installment sales contract
for the financing of the purchase of a Motor Vehicle
primarily used for personal, family or household use;
and
B. from whom M&T, as secured party, repossessed the
vehicle or ordered it to be repossessed;
C. to whom M&T sent a Notice of Repossession ("NOR") to a
Pennsylvania address at any time between September 22,
2011 through May 13, 2019, inclusive,
D. which included in the NOR an "[e]xpense of
preparing/repairing the vehicle for sale" or "sale
preparation expenses") in the amount of $200.00.
B. Alternative Class 1 ("Alternative Notice of Repossession
Class") is defined as:
All persons:
A. who entered into a retail installment sales contract
for the financing of the purchase of a Motor Vehicle
primarily used for personal, family or household use;
and
B. from whom M&T, as secured party, repossessed the
vehicle or ordered it to be repossessed;
C. to whom M&T sent a Notice of Repossession ("NOR") to a
Pennsylvania address at any time between September 22,
2011 through May 13, 2019, inclusive,
D. which included in the NOR:
i. an "[e]xpense of preparing/repairing the vehicle for
sale" or "sale preparation expenses") in the amount
of $200.00; and,
ii. an "expense of storing the vehicle" with a per diem
storage rate greater than $0.00.
C. Class 2 ("Notice of Repossession / Vehicle Recovered
Class") is defined as:
All persons:
A. who entered into a retail installment sales contract
for the financing of the purchase of a Motor Vehicle
primarily used for personal, family or household use;
and
B. from whom M&T, as secured party, repossessed the
vehicle or ordered it to be repossessed;
C. to whom M&T sent a Notice of Repossession ("NOR") to a
Pennsylvania address at any time between September 22,
2011 through May 13, 2019, inclusive,
D. which included in the NOR an "[e]xpense of
preparing/repairing the vehicle for sale" or "sale
preparation expenses") in the amount of $200.00; and,
E. who regained possession of his/her/their repossessed
vehicle by way of redemption or loan reinstatement.
D. Alternative Class 2 ("Alternative Notice of
Repossession / Vehicle Recovered Class") is defined as:
All persons:
A. who entered into a retail installment sales contract
for the financing of the purchase of a Motor Vehicle
primarily used for personal, family or household use;
and,
B. from whom M&T, as secured party, repossessed the
vehicle or ordered it to be repossessed;
C. to whom M&T sent a Notice of Repossession ("NOR") to a
Pennsylvania address at any time between September 22,
2011 through May 13, 2019, inclusive,
D. which included in the NOR:
i. an "[e]xpense of preparing/repairing the vehicle for
sale" or "sale preparation expenses") in an amount
of $200.00; and,
ii. an "expense of storing the vehicle" at with a per
diem storage rate greater than $0.00; and
E. who regained possession of his/her/their repossessed
vehicle by way of redemption or loan reinstatement.
This consumer class action relates to the repossession of more than
3,000 vehicles in Pennsylvania. The Plaintiffs allege that
Defendant M&T Bank ("M&T") violated Pennsylvania's Uniform
Commercial Code ("UCC"), independently, and in pari materia with
Pennsylvania's Motor Vehicle Sales Finance Act ("MVSFA"), relating
to the statutory content requirements for the (form)
post-repossession consumer disclosure notices ("Notices of
Repossession" or "NOR's") that must be sent after a vehicle is
repossessed (prior to the sale of the vehicle).
The Plaintiffs seek monetary relief to redress, inter alia,
Defendant's pattern and practice of sending Notices of Repossession
to Pennsylvania debtors which included an itemization for expenses
which were either not accurate. Some of these inaccuracies resulted
in the Bank's inflated assessment of expenses far in excess of
approximately $1 Million -- just for the "prepare/repair" fee which
it falsely stated was an expense when, in actuality, it was merely
a "estimate" of expenses when may be incurred. Moreover, storage
expenses resulted in the false assessment of more than an $4.3
Million.
The Plaintiffs filed their original Complaint in Philadelphia
County on September 22, 2017. THe Defendant removed the case to
this Court on October 26, 2017. Plaintiffs filed their First
Amended Complaint on February 2, 2018, and their Second Amended
Complaint (the operative complaint, "SAC") on May 11, 2018. These
amendments were made in the initial stages of the case, and
approximately 38,000 pages of documents were produced by Defendant
after the filing of the SAC.
A copy of the Plaintiff's motion to certify class dated Oct. 15,
2021 is available from PacerMonitor.com at https://bit.ly/3GiC8Be
at no extra charge[CC]
The Plaintiff is represented by:
Richard Shenkan, Esq.
6550 Lakeshore St.
West Bloomfield, MI 48323
Telephone: (412) 716-5800
Facsimile: (888) 769-1774
MCLANE FOODSERVICE: Ordaz Seeks to Remand Case to State Court
-------------------------------------------------------------
In the class action lawsuit captioned as JOSE ORDAZ, on behalf of
himself, all others similarly situated, and the general public, v.
MCLANE/SUNEAST, INC., a Texas corporation; MCLANE COMPANY, INC., a
Texas corporation; MCLANE FOODSERVICE, INC., a Texas corporation;
MCLANE FOODSERVICE DISTRIBUTION, INC., a North Carolina
corporation; MCLANE BEVERAGE DISTRIBUTION, INC., a Texas
corporation; and DOES 1–50, inclusive, Case No.
5:21-cv-01591-VAP-SHK (C.D. Cal.), the Plaintiff asks the Court to
enter an order remanding the case to the Superior Court of the
State of California for the County of San Bernardino, in light of
the clear and irrefutable authorities and fact that Defendants'
Removal is untimely and Defendants have failed to produce any real
evidence or reasonable assumptions for their amount in controversy
pursuant to the Class Action Fairness Act of 2005.
The Defendants untimely removed this matter on September 17, 2021,
based on "original jurisdiction pursuant to the CAFA, and on all
other grounds for jurisdiction to the extent applicable, including
traditional diversity and/or federal question."
The Plaintiff Ordaz contends that the Defendants cannot demonstrate
that their Removal to Federal Court was timely. On the contrary,
the evidence demonstrates that on May 7, 2021, Plaintiff personally
served Defendants' respective registered agents for service of
process with a copy of the Summons and Complaint.
Defendants' Removal is devoid of factual support regarding the 22
amount in controversy. Defendants did not file any evidence with
their Removal to support their contention that the amount in
controversy exceeds $5,000,000, the Plaintiff adds.
The Plaintiff filed this action on March 29, 2021 in the San
Bernardino Superior Court, Case No. CIVSB2108567.
THe Plaintiff's Complaint contains six causes of action for
violation of California Labor Code including unpaid meal and rest
period premiums; failure to pay all wages earned for all hours
worked at the correct rates of pay; unreimbursed business 21
expenses; non-compliant wage statements; final wages not timely
paid; and violation of California Business and Professions.
The Plaintiff seeks to certify the following class:
"All individuals currently and formerly employed in
California as non-exempt, hourly employees by Defendants,
including but not limited to maintenance mechanics, drivers,
and persons in similar positions at any time during the
period beginning four years prior to the filing of this
action and ending on the date that final judgment is entered
in this action."
A copy of the Plaintiff's motion dated Oct. 15, 2021 is available
from PacerMonitor.com at https://bit.ly/3mdUPhp at no extra
charge[CC]
The Plaintiff is represented by:
David G. Spivak, Esq.
Maralle Messrelian, Esq.
Maya Cheaitani, Esq.
THE SPIVAK LAW FIRM
16530 Ventura Blvd., Ste. 203
Encino, CA 91436
Telephone: (213) 725-9094
Facsimile: (213) 634-2485
E-mail: david@spivaklaw.com
maralle@spivaklaw.com
maya@spivaklaw.com
- and -
Walter Haines, Esq.
UNITED EMPLOYEES LAW GROUP
4276 Katella Ave., No. 301
Los Alamitos, CA 90720
Telephone: (562) 256-1047
Facsimile: (562) 256-1006
E-mail: whaines@uelglaw.com
MESA AIR: Court Enters Scheduling Order in Lowthorp Class Suit
--------------------------------------------------------------
In the class action lawsuit captioned as David G Lowthorp, v. Mesa
Air Group Incorporated, et al., Case No. 2:20-cv-00648-MTL (D.
Ariz.), the Hon. Judge Michael T. Liburdi entered a scheduling
order as follows:
-- Fact Discovery due by Sept. 23, 2022.
-- Expert depositions shall be completed no later than Feb.
17, 2023.
-- Dispositive motions due by March 13, 2023.
-- The deadline to file a motion for class certification is
Jan. 4, 2022.
-- The deadline for Defendants to file an opposition to class
certification is Feb. 22, 22.
-- The deadline for Plaintiffs to file a reply in support of
motion for class certification is March 25, 2022.
Mesa Air provides airlines services. The Company offers passenger
transportation and regional air services.
A copy of the Court's order dated Oct. 15, 2021 is available from
PacerMonitor.com at https://bit.ly/3Cg05qr at no extra charge[CC]
MICHIGAN: Judgment in Prisoners Favor in Ackerman v. MDOC Affirmed
------------------------------------------------------------------
In the case, GERALD ACKERMAN; MARK R. SHAYKIN, Plaintiffs-Appellees
v. HEIDI E. WASHINGTON, Defendant-Appellant, Case No. 20-1363 (6th
Cir.), the U.S. Court of Appeals for the Sixth Circuit affirms the
district court's judgment in the prisoners' favor.
Background
The Michigan Department of Corrections (MDOC) serves a universal
religious diet to all prisoners with religious dietary needs. It
created this meal plan to avoid forcing prisoners to eat foods that
violate their sincere religious beliefs. And because some religious
beliefs forbid eating animal products, the universal religious
meals are vegan. Because other prisoners require kosher food, the
vegan meal is also kosher.
Gerald Ackerman and Mark Shaykin are Jewish prisoners confined in
MDOC facilities. Their religious beliefs require them to eat a meal
with kosher meat and a meal with dairy on the Jewish Sabbath and
four Jewish holidays. They also believe that they must eat
cheesecake on the holiday of Shavuot to celebrate the holiday
properly. So they claim that MDOC policies that force them to eat
vegan meals on these days substantially burden their sincere
religious beliefs. And they argue that the MDOC needs to
accommodate their beliefs under the Religious Land Use and
Institutionalized Persons Act (RLUIPA).
After the bench trial, the district court asked for supplemental
briefing on the precise scope of the relief sought because any
possible pro-plaintiff ruling would need "to inform MDOC of the
type of foods required for which Sabbath and holiday meals." The
court allowed the parties to "attach an affidavit or other evidence
to support their position."
In support of their supplemental brief, the prisoners attached a
rabbi's affidavit. The rabbi explained that "the most significant
foods" for Sabbath celebrations "are wine and meat, in addition to
other delicacies." And "the Code of Jewish Law explicitly states in
Orach Chaim sec 250:2 that 'a person should add his meal with meat,
wine and delicacies according to his ability.'" "Regarding the
Festivals," he explained that "there is a clear obligation to eat
meals which specifically include meat." And he supported that
assertion with religious texts that say things like "you should be
lavish with meat, wine and sweets, according to your means."
The district court issued a bench opinion ruling in the prisoners'
favor. It concluded that MDOC policies substantially burdened the
prisoners' sincere religious beliefs "requiring them to consume
meat and dairy on the Sabbath and the holidays of Rosh Hashanah,
Yom Kippur, Sukkot, and Shavuot." And the MDOC had "failed to
demonstrate that its policies further a compelling government
interest or that they reflect the least restrictive means of
furthering its interests."
The district court ordered the MDOC to "provide kosher meat and
dairy products" "of a quantity comparable to the meat and dairy
products served to all other prisoners" to these prisoners on the
Jewish Sabbath and the four holidays. It also ordered the MDOC to
"provide the prisoners kosher cheesecake on Shavuot."
The MDOC appealed. It disputes the district court's conclusion
under each RLUIPA prong.
Discussion
A.
The MDOC challenges the prisoners' sincerity about the need for
meat and dairy on the Sabbath and four holidays. It also challenges
the sincerity of their belief that they need to eat cheesecake on
Shavuot. It faces a steep uphill challenge given both the nature of
the sincerity inquiry and the clear-error standard of review
applicable in the case.
I.
The Sixth Circuit turns first to the prisoners' meat-and-dairy
claim. Because the MDOC does not differentiate between meat and
dairy for purposes of the prisoners' sincerity except as to
cheesecake, the Sixth Circuit treats meat and dairy together rather
than separately. To the extent that the government could have
argued that the prisoners believe one is required and not the other
on any of the specific holidays, it has forfeited that argument.
Meat and dairy rise and fall together.
The Sixth Circuit rejects the MDOC's lack-of-sincerity argument.
The district court did not clearly err given the facts supporting
sincerity, especially the sincere belief that meat is mandatory on
the specified holidays. The prisoners effectively deflate the
state's case that commissary purchases show a lack of sincerity.
RLUIPA requires a practice-specific analysis. And because the
MDOC's policy regime completely bars the asserted practice --
eating meat and dairy at mealtime -- Ackerman and Shaykin's failure
to buy meat and dairy products at the commissary does not undermine
the sincerity of their belief. Just as "only permitting Catholic
inmates to observe the Sabbath on Thursdays" would be a substantial
burden, those same prisoners' refusal to do so surely would not
show their beliefs about Sunday were somehow insincere. The MDOC
has failed to show that the district court clearly erred in finding
the prisoners' meat and dairy at mealtime belief to be sincere.
II.
The cheesecake issue is trickier. First, before trial, the
prisoners made only a generic dairy argument and didn't argue that
cheesecake is required on Shavuot. Second, the prisoner better
versed in Jewish authority, Ackerman, never even mentioned
cheesecake in his initial round of testimony. Third, both prisoners
waffled in their assertion that cheesecake was required. And
Ackerman said, "arguably, we could drink a glass of milk, and
that's fine." Finally, religious texts don't say that cheesecake is
mandatory -- the Code of Jewish Law just notes that "some have a
custom to just eat some dairy mezonot, cake, and beverage."
But there's also evidence suggesting that these prisoners do in
fact sincerely believe that cheesecake is required on Shavuot.
First, when Shaykin was first asked if there was a food he was
"supposed to eat" on Shavuot, he responded "cheesecake." Second,
while he stated that (in his non-rabbinical opinion) he thought
other dairy products might do, he also said his beliefs would be
"fulfilled in a better way" if he had cheesecake. Third, it's clear
that cheesecake is tied to Shavuot. Ackerman backed up Shaykin's
testimony to that effect. And a Jewish organization previously
provided it for the holiday celebration. Finally, Ackerman said he
read the language in the Code of Jewish Law about a Shavuot
"custom" as requiring him to consume cheesecake.
The Sixth Circuit holds that difficult questions with evidence
cutting both ways are where deferential standards do their work.
Clear-error review applies in the case, so the Sixth Circuit only
disturbs the district court's sincerity finding on cheesecake if,
given "the entire evidence," it is "left with the definite and firm
conviction that a mistake has been committed." The Sixth Circuit is
not left with such a conviction. The district court reached the
defensible conclusion that it should credit the prisoners'
testimony that they believe cheesecake is mandatory on Shavuot.
That's all that is required. Even if it may have come out
differently on this issue if it were sitting as district judges,
the Sixth Circuit affirms under the applicable standard of review.
B.
The Sixth Circuit turns next to RLUIPA's substantial-burden prong,
which requires it to determine whether the government imposes a
substantial burden on these Jewish inmates' "religious exercise."
In the religious-food context, precedent is clear that "barring
access to the practice" of eating specific ceremonial foods
"substantially burdens the practice." And it is just as clear that
"allowing the inmates" access to other religious foods does not
"make a difference."
The MDOC substantially burdens the desired religious exercise in
the case. Four overlapping principles guide its analysis. First,
RLUIPA's use of "religious exercise" (as opposed to "religion")
tells that the substantial-burden inquiry is practice specific.
Second, there must be a burden on the exercise. Third, RLUIPA is
"directed at obstructions institutional arrangements place on
religious observances." Fourth, there is a severity requirement.
The Sixth Circuit opines that the prisoners have shown their
sincere beliefs are being substantially burdened, so the burden now
shifts to the government to justify the burden. It finds that the
MDOC fails to grapple with the elephant in the room -- prison
policies completely bar prisoners from eating any meat or dairy as
part of their meals at mealtime. And by urging the Sixth Circuit to
look to the commissary options as minimizing or eliminating any
burden, MDOC is asking it to do precisely what it cannot do --
"reframe the nature of what the prisoners seek to do."
C.
Once a prisoner makes out the prima facie RLUIPA case, the burden
shifts to the government to show that the imposition of the burden
passes strict scrutiny, "a tough gauntlet." The first strict
scrutiny step requires the prison to show that the burden "is in
furtherance of a compelling governmental interest."
The Sixth Circuit opines that the MDOC simply has not done the
legwork in its briefing to show how the desired accommodation or
future ones will increase administrative burdens by, for example,
requiring more kitchen space than what is available. The MDOC made
arguments, but failed to develop them on appeal. The MDOC has thus
abandoned any spiraling administrative burden argument it might
have raised on appeal.
D.
Not only must a prison show that the burden serves a compelling
interest, it must also show that the burden "is the least
restrictive means of furthering the compelling governmental
interest." The parties devote little time to this issue. Their
arguments revolve around the possibility that a Jewish organization
might be willing to provide the needed food items on at least some
days -- a practice that existed before the MDOC changed policies to
bar these donations. The MDOC asserts that this is not a viable
alternative because there is no evidence that any organization is
currently willing to provide kosher meals, volunteer organizations
never provided Sabbath food, at times visitors cannot enter
prisons, and allowing volunteers to provide kosher meals poses
security concerns.
The Sixth Circuit opines that the MDOC's argument rests on the
faulty proposition that the commissary alleviates any burden on the
desired exercise. And so its least-restrictive-mean argument fails
for the same reason its compelling-interest one does. It has failed
to carry its burden under RLUIPA.
Conclusion
The Sixth Circuit concludes that the MDOC substantially burdens
these prisoners' sincere religious beliefs, and the MDOC has not
shown that the burdens serve a compelling interest in the least
restrictive way. It affirms.
A full-text copy of the Court's Oct. 12, 2021 Opinion is available
at https://tinyurl.com/4e9nznrt from Leagle.com.
ARGUED: Scott A. Mertens, OFFICE OF THE MICHIGAN ATTORNEY GENERAL,
in Lansing, Michigan, for the Appellant.
Thomas J. Rheaume -- trheaume@bodmanlaw.com -- BODMAN PLC, in
Detroit, Michigan, for the Appellees.
ON BRIEF: Scott A. Mertens, OFFICE OF THE MICHIGAN ATTORNEY
GENERAL, in Lansing, Michigan, for the Appellant.
Thomas J. Rheaume, BODMAN PLC, Detroit, Michigan, Daniel E.
Manville -- daniel.manville@law.msu.edu -- MICHIGAN STATE
UNIVERSITY, in East Lansing, Michigan, for the Appellees.
MINDBODY INC: Walleye Securities Suit Seek to Certify Class Action
------------------------------------------------------------------
In the class action lawsuit RE MINDBODY, INC. SECURITIES
LITIGATION, Case No. 1:19-cv-08331-VEC (S.D.N.Y.), the Plaintiffs
Walleye Trading LLC and Walleye Opportunities Master Fund Ltd ask
the Court to enter an order pursuant to Federal Rules of Civil
Procedure 23(a), 23(b)(3), and 23(g):
1. certifying this case as a class action;
2. appointing them as Class Representatives; and
3. appointing Labaton Sucharow LLP as Class Counsel.
Pursuant to the schedule ordered by the Court on September 9, 2021,
the Defendants' opposition brief is due December 2, 2021, and
Plaintiffs' reply brief is due January 14, 2022.
Mindbody is a San Luis Obispo, California-based
software-as-a-service company that provides cloud-based online
scheduling and other business management software for the wellness
services industry.
A copy of the Plaintiffs' motion to certify class dated Oct. 15,
2021 is available from PacerMonitor.com at https://bit.ly/3vFwxQm
at no extra charge[CC]
The Plaintiffs are represented by:
Carol C. Villegas, Esq.
David J. Schwartz, Esq.
Jake Bissell-Linsk, Esq.
Charles Farrell, Esq.
LABATON SUCHAROW LLP
140 Broadway
New York, NY 10005
Telephone: (212) 907-0700
Facsimile: (212) 818-0477
E-mail: cvillegas@labaton.com
dschwartz@labaton.com
jbissell-linsk@labaton.com
cfarrell@labaton.com
NEXUS HOLIDAYS: Zhang Class Certification Bid Partly Granted
------------------------------------------------------------
In the class action lawsuit captioned as SHASHA ZHANG, Individually
and on Behalf of All Other Employees Similarly Situated, v. NEXUS
HOLIDAYS NEW YORK, INC., and NEXUS HOLIDAYS GROUP INC., SHANGHAI
YILIAN INTERNATIONAL, a TRAVEL AGENCY LTD., LINGMIN ZHANG, a/k/a
MARC ZHANG, MATTHEW WANG, and John Doe and Jane Doe, Case No.
1:20-cv-00275-AMD-CLP (E.D.N.Y.), the Hon. Judge Cheryl L. Pollak
entered an order:
1. granting in part and denying in part Zhang's motion for
conditional certification of a collective action;
2. directing the defendants, once the Notice has been
finalized, to provide plaintiff with an Excel spreadsheet
setting forth the names and addresses, as well as any
alternate addresses, telephone numbers, email addresses,
work locations, dates of employment, and social media
information that defendants have in their possession for
all employees that worked at 41-60 Main Street, Suite 215,
Flushing, New York 11355;
3. granting the Plaintiff's requests for a three-year notice
period commencing from the date of the filing of the
Complaint, a 90-day opt-in period, exclusion of
defendant's counsel's information, and a reminder
emailing/mailing;
4. granting the plaintiff's request to have consent forms
sent to plaintiff's counsel, as is plaintiff's request to
disseminate the notices via mail, email, text message, or
social media group in any relevant language;
5. denying the plaintiff's requests for publication,
equitable tolling, and to post the notices at defendants'
travel agency; and
6. directing the Clerk to send copies of this Order to the
parties either electronically through the Electronic Case
Filing (ECF) system or by mail.
The Court finds that plaintiff has met the minimal burden of
showing that there are similarly situated employees who may have
been victims of a common policy or practice that violated the
FLSA's minimum wage and overtime requirements sufficient to warrant
conditional certification of a collective action.
On January 16, 2020, the plaintiff Shasha Zhang commenced this
action against corporate defendants Nexus Holidays New York, Inc.
and Nexus Holidays Group Inc., and their owners and operators
Lingmin Zhang, a/k/a Marc Zhang, and Matthew Wang, alleging
violations of the Fair Labor Standards Act (FLSA), and the New York
Labor Law (NYLL), based on defendants' alleged failure to pay
overtime compensation for any hours worked over 40 in a work week,
and alleged failure to pay for off-the-clock work, in violation of
the FLSA and NYLL, spread-of-hours violations under the NYLL, and
other claims under the NYLL.
A copy of the Court's order dated Oct. 14, 2021 is available from
PacerMonitor.com at https://bit.ly/3CaReWF at no extra charge.[CC]
POLY-WOOD LLC: Giannaros Seeks Initial OK of Settlement Deal
------------------------------------------------------------
In the class action lawsuit captioned as STEPHEN GIANNAROS, v.
POLY-WOOD, LLC, Case No. 1:21-cv-10351-WGY (D. Mass.), the
Plaintiff asks the Court to enter an order:
1. certifying the class for settlement purposes;
2. appointing Stephen Giannaros as class representative;
3. appointing Kevin W. Tucker, Kevin J. Abramowicz and East
End Trial Group LLC as Class Counsel;
4. preliminarily approving the Agreement;
5. approving the Notice and Notice Plan;
6. enjoining Settlement Class Members from asserting Released
Injunctive Claims;
7. setting a date 60 days after the Court grants preliminary
approval as the objection deadline; and
8. scheduling a fairness hearing for 30 days after the
objection deadline, or such time thereafter as is
convenient for the Court.
Poly-Wood manufactures and distributes furniture products.
A copy of the Plaintiff's motion to certify class dated Oct. 15,
2021 is available from PacerMonitor.com at https://bit.ly/2ZqOvui
at no extra charge[CC]
The Plaintiff is represented by:
Stephen Ryan Jr., Esq.
RYAN LITIGATION AND ADVOCACY, PLLC
1167 Massachusetts Avenue
Arlington, MA 02476
Telephone: (617) 762-5788
E-mail: sryan@ryan-litigation.com
- and -
Kevin Tucker, Esq.
Kevin Abramowicz, Esq.
EAST END TRIAL GROUP LLC
6901 Lynn Way, Ste. 215
Pittsburg, PA 15208
Telephone: (412) 877-5220
Facsimile: (412) 626-7101
E-mail: ktucker@eastendtrialgroup.com
kabramowicz@eastendtrialgroup.com
ROBINHOOD FINANCIAL: Pinchasov Brings Appeal to 11th Cir.
---------------------------------------------------------
Plaintiff Shterna Pinchasov filed an appeal from a court ruling
entered in the lawsuit styled SHTERNA PINCHASOV, Individually and
on Behalf of All Others Similarly Situated v. ROBINHOOD FINANCIAL
LLC, Case No. 1:20-cv-24897-CMA, in the U.S. District Court for the
Southern District of Florida.
As previously reported in the Class Action Reporter, this class
action lawsuit, with Shterna Pinchasov as lead plaintiff, claims
that Robinhood shirked its fiduciary duty -- the responsibility to
act in customers' best interests -- when it failed to notify
customers of its trading halt on Hertz Corp. in March 2020,
resulting in massive investment losses.
On September 10, 2021, the Court entered a four-page order,
acknowledging withdrawal of Plaintiff's negligence count, and
denying Plaintiff's request for class certification for the
remaining intentional tort count of breach of fiduciary duty.
The Plaintiff alleges that the basis for the Court's denial was
unambiguous -- a perceived failure by Plaintiff to address
Defendant's argument that California law and not Florida law
governed the Plaintiff's tort claim at issue.
Accordingly, the Plaintiff asked the Court to reconsider her motion
for class certification and to enter a ruling on the merits of the
same. The Plaintiff added that should the court be inclined to deny
her motion for reconsideration, she should be allowed leave to
amend her Reply to address the improper choice of law argument
raised in Defendant's footnote, or otherwise meet her burden
regarding same.
On Sept. 21, 2021, the Court denied Plaintiff's Motion for
Reconsideration.
The Plaintiff now seeks a review of the Court's Sept. 21, 2021
Order in an appellate case captioned Shterna Pinchasov v. Robinhood
Financial, LLC, Case No. 21-90025, in the United States Court of
Appeals for the Eleventh Circuit, filed on Oct. 5, 2021.[BN]
Plaintiff-Petitioner SHTERNA PINCHASOV, Individually and on Behalf
of all others Similarly Situated, is represented by:
Michael A. Citron, Esq.
MAC LEGAL, PA
4601 Sheridan St Ste 205
Hollywood, FL 33021
Telephone: (954) 395-2954
E-mail: michael@maclegalpa.com
- and -
Igor Hernandez, Esq.
CORNISH HERNANDEZ GONZALEZ, PLLC
2525 Ponce De Leon Blvd Ste 300
Coral Gables, FL 33134
Telephone: (305) 710-3139
E-mail: ihernandez@chglawyers.com
- and -
Ely Robert Levy, Esq.
MILITZOK & LEVY
3230 Stirling Rd Ste 1
Hollywood, FL 33021-2027
Telephone: (954) 727-8570
E-mail: elevy@lawlp.com
Defendant-Respondent ROBINHOOD FINANCIAL, LLC is represented by:
Brandon Fetzer, Esq.
Elliot Greenfield, Esq.
DEBEVOISE & PLIMPTON, LLP
919 3rd Ave
New York, NY 10022
Telephone: (212) 909-6000
E-mail: egreenfield@debevoise.com
- and -
Grace Lee Mead, Esq.
Ryan Thomas Thornton, Esq.
STEARNS WEAVER MILLER WEISSLER
ALHADEFF & SITTERSON, PA
150 W Flagler St Ste 2200
Miami, FL 33131
Telephone: (305) 789-3559
E-mail: gmead@stearnsweaver.com
rthornton@stearnsweaver.com
SAN BERNARDINO, CA: Ribota, et al. Seek to Certify Class Action
---------------------------------------------------------------
In the class action lawsuit captioned as BRIANA RIBOTA; NICOALE
SYLVESTRE; LASHA DALTON; and YOLANDA SALAZAR, individual and on
behalf of all others similarly situated, v. COUNTY OF SAN
BERNARDINO, a legal subdivision of the State of California, and
DOES 1-10, inclusive, Case No. 5:20-cv-00505-JGB-KK (C.D. Cal.),
the Plaintiffs ask the Court to enter an order:
1. conditionally certifying case as a collective action under
29 U.S.C. section 216(b) for the following classes (the
"Plaintiff Classes"):
a. All persons who are or were employed by Defendant
COUNTY OF SAN BERNARDINO's Transitional Assistant
Department as Non-exempt Employment Service Specialist
Workers (of any grade) within the past three years;
b. All persons who are or were employed by Defendant
COUNTY OF SAN BERNARDINO's Transitional Assistant
Department as Non-exempt Eligibility Workers (of any
grade) within the past three years;
or such other classes or sub-classes as the Court deems
appropriate;
2. appointing them as Lead Plaintiffs on behalf of the
Plaintiff Class;
3. appointing John R. Parker, Jr. of Cutter Law P.C., C.
Brooks Cutter of Cutter Law P.C., and Megan A. Richmond,
Esq. of Megan A. Richmond APC as Class Counsel;
4. approving proposed form of notice to members of the
conditionally approved Plaintiff Class;
5. directing the mailing of the notice of the conditionally-
certified Plaintiff Class to members of the Plaintiff
Class and posted at Defendant's TAD offices where social
workers are employed, and that a consent-to-join form and
prepaid return envelope be provided therewith;
6. directing the members of the Plaintiff Class to have 100
days from the mailing and posting of the Court-approved
class notice to opt into the suit by providing a consent
to sue in writing; and
7. tolling the statute of limitations with regard to claims
made under the FLSA, 29 U.S.C. sections 201 et seq., for
putative collective action class members from the date of
this motion's filing.
A copy of the Plaintiffs' motion to certify class dated Oct. 15,
2021 is available from PacerMonitor.com at https://bit.ly/3nljJLg
at no extra charge[CC]
The Plaintiffs are represented by:
Megan A. Richmond, Esq.
MEGAN A. RICHMOND, APC
655 W. Broadway, Suite 1700
San Diego, CA 92101
Telephone: (619) 577-4253
Facsimile: (619) 577-4250
E-mail: megan@therichmondfirm.com
- and -
C. Brooks Cutter, Esq.
John R. Parker, Jr., Esq.
Celine E. Cutter, Esq.
CUTTER LAW P.C.
401 Watt Ave., Suite 100
Sacramento, CA 95864
Telephone: (916) 290-9400
Facsimile: (916) 588-9330
E-mail: bcutter@cutterlaw.com
jparker@cutterlaw.com
ccutter@cutterlaw.com
SEDGWICK CLAIMS: Gibbs Seeks to Certify FLSA Collective Action
--------------------------------------------------------------
In the class action lawsuit captioned as CONNIE GIBBS, on behalf of
herself and others similarly situated, v. SEDGWICK CLAIMS
MANAGEMENT SERVICES INC., a Foreign for Profit Corporation, Case
No. 2:21-cv-02153-SHM-cgc (W.D. Tenn.), the Plaintiff asks the
Court to enter an order:
1. conditionally certifying the collective defined as:
"All individuals who worked for Sedgwick and held the
position of Disability Representative Senior or Absence
Management Care Team Representative during the period
beginning three years prior to the issuance of notice and
ending on May 22, 2021, and who were classified as exempt
from overtime (except those individuals who worked in the
State of Illinois as a Disability Representative Senior
during this time period processing requests or claims for
accommodation under the Americans with Disabilities Act of
1990 (ADA);"
Not included in the collective are those Disability
Representative Seniors and ACT Team Representatives
employed by Sedgwick in the period beginning three years
prior to the issuance of notice and ending May 22, 2021
who previously filed consents to join or received notice
of the opportunity to join the case of Easterwood, et al
v. Sedgwick Claims Management Services Inc., Case No.
6:19- cv-700-WWB-LRH, Middle District of Florida. However,
any such individuals who have opted into, i.e. filed
consents to join, or later opt into this case may
participate in this action.
2. approving the proposed Court-Authorized Notice.
The Plaintiff Gibbs filed the instant Complaint on March 12, 2021,
and requested that the case proceed as a collective action under 29
U.S.C. section 216(b) on behalf of all current and former employees
of Sedgwick who held the job position Disability Representative.
Since the filing of the initial Complaint, in addition to Plaintiff
Gibbs, at the time of the filing of this Unopposed Motion, 85
Opt-In Plaintiffs have joined this lawsuit.
The Plaintiff and Opt-In Plaintiffs work(ed) for Sedgwick in the
positions of "Disability Representative Senior" and/or “Absence
Management Care Team Representative." In these roles, Plaintiff and
Opt-In Plaintiffs at times were classified as exempt from the
FLSA's requirement to pay overtime compensation, were paid a
salary, and were not paid overtime for hours worked in excess of 40
hours per week.
Sedgwick Claims provides claims and productivity management
services.
A copy of the Plaintiff's motion to certify class dated Oct. 15,
2021 is available from PacerMonitor.com at https://bit.ly/3Eczyea
at no extra charge[CC]
The Plaintiff is represented by:
Mary E. Lytle, Esq.
David V. Barszcz, Esq.
LYTLE & BARSZCZ, P.A.
533 Versailles Drive, 2 nd Floor
Maitland, FL 32751
Telephone: (407) 622-6544
Facsimile: (407) 622-6545
E-mail: mlytle@lblaw.attorney
dbarszcz@lblaw.attorney
The Defendant is represented by:
Robin A. Wofford, Esq.
Meryl C. Maneker, Esq.
Lois M. Kosch, Esq.
Leticia C. Butler, Esq.
WILSON TURNER KOSMO LLP
402 West Broadway, Suite 1600
San Diego, CA 92101
Facsimile: (619) 236-9669
E-mail: rwofford@wilsonturnerkosmo.com
lkosch@wilsonturnerkosmo.com
mmaneker@wilsonturnerkosmo.com
lbutler@wilsonturnerkosmo.com
- and -
Thomas L.Henderson Esq.
OGLETREE DEAKINS NASH
SMOAK & STEWART, P.C.
6410 Poplar Avenue, Suite 300
Memphis TN 38119
Facsimile: (901) 767-7411
E-mail: Thomas.henderson@ogletreedeakins.com
STATE FARM: Court Junks Baker Bid for Reconsideration
-----------------------------------------------------
In the class action lawsuit captioned as RASHAD BAKER, on behalf of
himself and all others similarly situated, et al., v. STATE FARM
MUTUAL AUTOMOBILE INSURANCE COMPANY, Case No. 4:19-cv-00014-CDL
(M.D. Ga.), the Hon. Judge Clay D. Land entered an order denying
the Plaintiffs' motion for reconsideration.
The Court said, "Finally, the Plaintiffs contend that even if the
Court does not reconsider its conclusions on commonality and
predominance, the Court should allow Plaintiffs to renew their
motion for class certification with a narrowed class definition.
The Court acknowledged in the Denial Order that "it may be possible
in some cases to determine with common evidence which class members
are injured and thus have standing." But this is not such a case.
The Plaintiffs did not present any evidence to suggest that there
is a common way to figure out which 17(c) assessments breached
State Farm’s policy and which did not. The Plaintiffs presented
no evidence of a manageable way to ascertain which class members
were injured and which ones were not. Rather, as the Court pointed
out, "the only recognized method in the present record for proving
injury and damages is a comparison of the 17(c) assessment to a
highly individualized vehicle appraisal." Nothing in Plaintiffs'
motion for reconsideration changes this conclusion."
On Sept. 2, 2021, the Court denied Plaintiffs' motion for class
certification because the Plaintiffs failed to establish that the
requirements for class certification under Federal Rule of Civil
Procedure were met.
State Farm is a group of insurance companies throughout the United
States with corporate headquarters in Bloomington, Illinois.
A copy of the Court's order dated Oct. 14, 2021 is available from
PacerMonitor.com at https://bit.ly/3vDQgQq at no extra charge.[CC]
STRIDE INC: Court Junks K12 Securities Suit
-------------------------------------------
Stride, Inc. said in its Form 10-Q Report filed with the Securities
and Exchange Commission on October 20, 2021, for the quarterly
period ended September 30, 2021, that the motion to dismiss filed
in in the putative class action suit entitled, In re K12 Inc.
Securities Litigation, Case No. 1:20-cv-01419, has been granted.
On November 19 and December 11, 2020, respectively, two putative
securities class action lawsuits captioned Yun Chau Lee v. K12
Inc., et al, Case No. 1:20-cv-01419, and Jennifer Baig v. K12 Inc.,
et al, Case No. 1:20-cv-01528 were filed against the Company, one
of its current officers, and one of its former officers in the
United States District Court for the Eastern District of Virginia,
purportedly on behalf of a class of persons who purchased or
otherwise acquired the Company's common stock between April 27,
2020 and September 18, 2020, inclusive.
On February 17, 2021, the Court consolidated the Lee Case and the
Baig Case under the caption In re K12 Inc. Securities Litigation,
Case No. 1:20-cv-01419, and appointed a lead plaintiff. The lead
plaintiff filed a consolidated amended complaint on April 5, 2021,
alleging violations by the Company and the individual defendants of
Section 10(b) of the Exchange Act, and Rule 10b-5 promulgated under
the Exchange Act, and violations by the individual defendants of
Section 20(a) of the Exchange Act.
The complaint alleges, among other things, that the Company and the
individual defendants made false or misleading statements and/or
omitted to disclose material facts concerning its technological
capabilities and expertise to support increased demand for virtual
and blended education related to the global emergence of COVID-19,
its cybersecurity protocols and protections, and its administrative
support and training to teachers, students, and parents.
The complaint seeks unspecified monetary damages and other relief.
The Company filed a motion to dismiss the complaint in its entirety
on May 20, 2021, which the Court granted, without prejudice, on
September 16, 2021. The Court's order permits the optional filing
of a second amended complaint.
Stride, Inc. is an education services company providing online and
blended learning. The company's technology-based products and
services enable its clients to attract, enroll, educate, track
progress, and support students on a scalable basis. These products
and services, spanning curriculum, systems, instruction, and
support services are designed to help learners reach their
educational goals through inspired teaching and personalized
learning. The company is based in Herndon, Virginia.
SYMETRA ASSIGNED: Extension of Class Cert. Deadlines Sought
-----------------------------------------------------------
In the class action lawsuit captioned as RENALDO WHITE and RANDOLPH
NADEAU, individually and on behalf of all others similarly
situated, v. SYMETRA ASSIGNED BENEFITS SERVICE COMPANY and SYMETRA
LIFE INSURANCE COMPANY, Case No. 2:20-cv-01866-MJP (W.D. Wash.),
the parties ask the Court to enter an order:
1. extending the current class certification discovery
deadline to November 5, 2021; and
2. granting the propose briefing schedule as follows:
-- Plaintiffs' Motion for Class December 10, 2021
Certification
-- Defendants' Opposition January 14, 2022
-- Plaintiffs' Reply February 4, 2022
A copy of the Parties' motion dated Oct. 14, 2021 is available from
PacerMonitor.com at https://bit.ly/3Cb41bQ at no extra charge.[CC]
The Plaintiffs are represented by:
Lynn Lincoln Sarko, Esq.
Gretchen Freeman Cappio, Esq.
Adele A. Daniel, Esq.
Ian S. Birk, Esq.
Alison E. Chase, Esq.
KELLER ROHRBACK, LLP
1201 Third Avenue, Suite 3200
Seattle, WA 98101-3052
Telephone: (206) 623-1900
Facsimile: (206) 623-3384
E-mail: lsarko@kellerrohrback.com
gcappio@kellerrohrback.com
adaniel@kellerrohrback.com
ibirk@kellerrohrback.com
achase@kellerrohrback.com
- and -
Jerome M. Marcus, Esq.
Jonathan Auerbach, Esq.
MARCUS & AUERBACH LLC
1121 N. Bethlehem Pike, Suite 60-242
Spring House, PA 19477
Telephone: (215) 885-2250
Facsimile: (888) 875-0469
E-mail: jmarcus@marcusauerbach.com
auerbach@marcusauerbach.com
- and -
Edward Stone, Esq.
Lisa A. Salmons, Esq.
EDWARD STONE LAW P.C.
175 West Putnam Avenue, 2nd Floor
Greenwich, CT 06830
Telephone: (203) 504-8425
Facsimile: (203) 348-8477
E-mail: eddie@edwardstonelaw.com
lisa@edwardstonelaw.com
The Defendants are represented by:
Maeve L. O'Connor, Esq.
Susan Reagan Gittes, Esq.
DEBEVOISE & PLIMPTON LLP
919 Third Avenue
New York, NY 10022
Telephone: (212) 909-6000
E-mail: moconnor@debevoise.com
srgittes@debevoise.com
SYNCHRONY FINANCIAL: Stichting Depositary Class Suit Ongoing
------------------------------------------------------------
Synchrony Financial said in its Form 10-Q Report filed with the
Securities and Exchange Commission on October 21, 2021, for the
quarterly period ended September 30, 2021, that the company
continues to defend a class action suit entitled, Stichting
Depositary APG Developed Markets Equity Pool and Stichting
Depositary APG Fixed Income Credit Pool v. Synchrony Financial et
al.
On November 2, 2018, a putative class action lawsuit, Retail
Wholesale Department Store Union Local 338 Retirement Fund v.
Synchrony Financial, et al., was filed in the U.S. District Court
for the District of Connecticut, naming as defendants the Company
and two of its officers.
The lawsuit asserts violations of the Exchange Act for allegedly
making materially misleading statements and/or omitting material
information concerning the Company's underwriting practices and
private-label card business, and was filed on behalf of a putative
class of persons who purchased or otherwise acquired the Company's
common stock between October 21, 2016 and November 1, 2018.
The complaint seeks an award of unspecified compensatory damages,
costs and expenses.
On February 5, 2019, the court appointed Stichting Depositary APG
Developed Markets Equity Pool as lead plaintiff for the putative
class.
On April 5, 2019, an amended complaint was filed, asserting a new
claim for violations of the Securities Act in connection with
statements in the offering materials for the Company's December 1,
2017 note offering.
The Securities Act claims are filed on behalf of persons who
purchased or otherwise acquired Company bonds in or traceable to
the December 1, 2017 note offering between December 1, 2017 and
November 1, 2018.
The amended complaint names as additional defendants two additional
Company officers, the Company's board of directors, and the
underwriters of the December 1, 2017 note offering.
The amended complaint is captioned Stichting Depositary APG
Developed Markets Equity Pool and Stichting Depositary APG Fixed
Income Credit Pool v. Synchrony Financial et al.
On March 26, 2020, the District Court recaptioned the case In re
Synchrony Financial Securities Litigation and on March 31, 2020,
the District Court granted the defendants' motion to dismiss the
complaint with prejudice.
On April 20, 2020, plaintiffs filed a notice to appeal the decision
to the United States Court of Appeals for the Second Circuit.
On February 16, 2021, the Court of Appeals affirmed the District
Court's dismissal of the Securities Act claims and all of the
claims under the Exchange Act with the exception of a claim
relating to a single statement on January 19, 2018 regarding
whether Synchrony was receiving pushback on credit from its retail
partners.
No further updates were provided in the Company's SEC report.
Synchrony Financial, incorporated on September 12, 2003, is a
consumer financial services company. The Company provides a range
of credit products through programs it has established with a group
of national and regional retailers, local merchants, manufacturers,
buying groups, industry associations and healthcare service
providers. The Company's revenue activities are managed through
three sales platforms: Retail Card, Payment Solutions and
CareCredit. It offers its credit products through its subsidiary,
Bank. The company is based in Stamford, Connecticut.
TENNESSEE: Bid for Prelim. Injunction in S.B. v. Gov. Lee Granted
-----------------------------------------------------------------
In the case, S.B., a minor student, by and through his parents,
M.B. and L.H. et al., Plaintiffs v. GOVERNOR BILL LEE, in his
official capacity as Governor of Tennessee, and KNOX COUNTY BOARD
OF EDUCATION, Defendants, Case No. 3:21-CV-00317-JRG-DCP (E.D.
Tenn.), Judge J. Ronnie Greer of the U.S. District Court for the
Eastern District of Tennessee, Knoxville, granted the Plaintiffs'
Motion in Support of Preliminary Injunction.
Background
On Aug. 16, 2021, the Governor of Tennessee, Bill Lee, issued
Executive Order No. 84, which states: "I, Bill Lee, Governor of the
State of Tennessee, having declared a continuing state of emergency
by Executive Order No. 83, dated August 6, 2021, and by virtue of
the power and authority vested in me by the Tennessee Constitution
and other applicable law including Tennessee Code Annotated Section
58-2-107, do hereby order that a student's parent or guardian will
have the right to opt out of any order or requirement for a student
in kindergarten through twelfth-grade to wear a face covering at
school, on a school bus, or at school functions, by affirmatively
notifying in writing the local education agency or personnel at the
student's school."
Not long afterwards, the Knox County Board of Education, in
response to the ongoing COVID-19 pandemic, met on Sept. 1, 2021, to
discuss and vote on a district-wide mask mandate for its school
system, which consists of 90 schools and 60,000 students.
Approximately 8,000 of those students are disabled. By vote of the
board, a mask mandate had been in effect during the entirety of the
previous school year, from August 2020 to May 2021, for all 90
schools. But this year, during the board's meeting on Sept. 1,
2021, it decided not to renew the mask mandate by a vote of 5 to 4,
-- acting at odds with the guidelines of the Knox County Health
Department, the American Academy of Pediatrics, and the Centers for
Disease Control and Prevention ("CDC"), all of which recommend
masks for all students enrolled in kindergarten through twelfth
grade.
In response to the board's vote, the Plaintiffs, on the following
day, brought a class-action lawsuit in the Court under Title II of
the Americans with Disabilities Act of 1990 ("ADA"), 42 U.S.C.
Section 12131 et seq., and Section 504 of the Rehabilitation Act of
1973, 29 U.S.C. Section 794, claiming they are "unable to safely
attend school without increased risks of serious injury or even
death, unlike their non-disabled peers." The Plaintiffs allege that
they suffer from underlying medical conditions that expose them to
a likelihood of severe illness or death from COVID-19, a highly
transmissible and sometimes deadly virus that invades the body
through the mouth, nose, and eyes and spreads through respiratory
droplets that persons produce by speaking, coughing, or sneezing.
Children under the age of twelve are not yet eligible to receive
COVID-19 vaccines, and some children who are old enough to receive
the vaccines may have medical conditions that do not allow their
immune systems to sufficiently respond to them.
The Plaintiffs claim that the Knox County Board of Education has
violated the ADA and the Rehabilitation Act by not providing them
with a reasonable accommodation that would enable them -- against
the backdrop of the COVID-19 pandemic -- to have safe and
"fundamental access to the school building itself." According to
the Plaintiffs, the Knox County Board of Education's rejection of a
mask mandate is placing them at an "increased risk of serious
injury or death by not allowing a simple reasonable modification
under the ADA and Rehabilitation Act." Also, the Plaintiffs claim
that Governor Lee has violated the ADA and the Rehabilitation Act
because, by promulgating Executive Order No. 84, he denied the Knox
County Board of Education "the ability to provide the children with
disabilities in the instant matter with the protections they need
to attend school safely."
The Plaintiffs bring suit on behalf of all "current and future K-12
students" who are "eligible to attend public school in Knox County,
Tennessee, during the coronavirus pandemic," who are unable to
receive the vaccine or unable to mount an adequate immune response
to the vaccine, and who suffer from one or more of the following
medical conditions: (a) lung disease, including asthma, chronic
obstructive pulmonary disease (e.g., bronchitis or emphysema), or
other chronic conditions associated with impaired lung function;
(b) heart disease, such as congenital heart disease, congestive
heart failure and/or coronary artery disease; (c) chronic liver or
kidney disease (including hepatitis and dialysis patients); (d)
diabetes or other endocrine disorders; (e) hypertension; (f)
compromised immune systems (such as from cancer, HIV, receipt of an
organ or bone marrow transplant, as a side effect of medication, or
other autoimmune disease); (g) blood disorders (including sickle
cell disease); (h) inherited metabolic disorders; (i) history of
stroke; (j) neurological or developmental disability (including
epilepsy); (k) cancer or cancer treatments; and/or (l) muscular
dystrophy or spinal cord injury.
The Plaintiffs now move the Court to issue a preliminary injunction
that "requires Knox County Board of Education to enforce a mask
mandate" and that "enjoins Governor Lee during the litigation from
enforcing Executive Order No. 84." Last month, the Court held a
hearing on the Plaintiffs' motion for a preliminary injunction. The
Court heard from several witnesses during the hearing, including
Ms. Ashley Paquette, Jason Yaun, M.D., Jennifer Ker, M.D., Jon
Rysewik, Ph.D., and Mr. Jason Myers.
Ms. Paquette is a fifth-grade teacher in the Knox County School
System and teaches at Farragut Intermediate School. A licensed,
board-certified pediatrician, Dr. Yaun is an associate professor of
pediatrics at the University of Tennessee Health Sciences Center
and practices medicine with the University of Tennessee Le Bonheur
Pediatric Specialists in Memphis, where he treats children who are
infected with COVID-19. A licensed, board-certified immunologist,
Dr. Ker is an assistant clinical professor of allergy, pulmonary,
and critical-care medicine at the Vanderbilt University Medical
Center and practices medicine in Nashville and Brentwood. She also
treats children who are infected with COVID-19 and who, in some
instances, have immune systems that function poorly. Ms. Paquette,
Dr. Yaun, and Dr. Ker testified on the Plaintiffs' behalf. Dr.
Rysewik and Mr. Myers appeared on the Knox County Board of
Education's behalf. Dr. Rysewik is the chief academic officer and
assistant superintendent for Knox County Schools, and Mr. Myers is
the executive director of student support for Knox County Schools.
The parties have now fully briefed the Court on their respective
arguments for and against the entry of a preliminary injunction.
Discussion
Judge Greer is compelled to begin by framing the claims and the
legal issues because all three of the parties characterize them
differently. The Knox County Board of Education asserts that "the
issue is whether" its vote "to not have a mask mandate is a denial
of a reasonable accommodation to the Plaintiffs," and it argues
that this issue "presents a political question which should not be
resolved by the Court."
Governor Lee, on the other hand, argues that "the First Amended
Complaint indicates that the case is about the suitability of the
Plaintiffs' educational program, not physical access to the
school." The "Plaintiffs' filings," Governor Lee argues, "clearly
speak to the appropriateness of education, not access," so in his
view, "the crux of their complaint is that they are being denied" a
free public education and, therefore, the Individuals with
Disabilities Education Act ("IDEA"), 20 U.S.C. Section 401 et seq.,
governs their claims. The IDEA provides that "children with
disabilities have a right to a 'free appropriate public education'"
and "concerns the `denial of a free appropriate public education.'"
According to Governor Lee, the Court lacks jurisdiction over the
Plaintiffs' claims because the Plaintiffs have not exhausted their
administrative remedies under the IDEA.
Judge Greer first addresses the Knox County Board of Education's
and Governor Lee's arguments that the case is not ripe for
resolution and that the Plaintiffs are without standing,
respectively.
A. Standing
Governor Lee challenges the second element of standing, arguing
that the "Plaintiffs cannot show their alleged harm is fairly
traceable to" Executive Order No. 84. Traceability does not
"concern whether the defendant 'caused' the plaintiff's injury in
the liability sense," because it "is not synonymous with causation
sufficient to support a claim." Also, traceability does not require
Governor Lee's executive order to be a proximate cause of the
Plaintiffs' alleged injury.
Under a broad view, or really any view, Judge Greer opines that the
Knox County Board of Education's failure to prospectively adopt a
mask mandate -- the alleged reasonable accommodation -- is an
injury, a concrete, actual, and ongoing injury, for which Governor
Lee's executive order is a traceable cause. Governor Lee's shrewd
argument to the contrary is an attempt to halt the Plaintiffs'
pursuit of an alleged reasonable accommodation under the ADA. He
explains that standing requires the Court to determine whether the
"door to federal court" is open to a plaintiff, Buchholz v. Myer
Njus Tanick, 946 F.3d 855, 862 (6th Cir. 2020), but Governor Lee
aims to stop the Plaintiffs from even reaching the door's threshold
so that the Court can make that determination. Because his
executive order forestalls the Plaintiffs from pursuing an alleged
reasonable accommodation under the ADA, the Court clearly has
license to enjoin his executive order and is likely to do so. The
Plaintiffs have therefore satisfied the elements of standing.
B. Ripeness
The Knox County Board of Education contends that the Plaintiffs'
claims against it are not ripe for resolution because "it is
uncertain if it would adopt a mask mandate were Governor Lee's
opt-out order not in effect, and any such pronouncement would be
speculative." So in its view, the alleged "inaction" in the case --
its failure to adopt a mask mandate -- has "not yet occurred."
Judge Greer holds that the Plaintiffs satisfy the three-factor test
for ripeness. Under the first factor, the evidence shows -- as the
Court will go on to discuss in detail -- that the Plaintiffs lack
safe access to their school buildings without a mask mandate
because the Knox County Board of Education's current efforts to
curtail the spread of COVID-19 are ineffective, the Delta variant
is resulting in increased transmissibility of the virus, and
infections among Knox County students have swelled since the start
of the school year. Under the second factor, the Court held an
evidentiary hearing so that the parties could sufficiently develop
the record on the issues relevant to the Court's determination of
whether Plaintiffs are likely to succeed on the merits. And under
the third factor, the evidence shows that the Plaintiffs will
suffer irreparable harm if it denies the injunctive relief they
request at this stage in the proceedings.
C. Strong Likelihood of Success on the Merits
Again, the Plaintiffs bring claims against the Defendants under two
statutes, the ADA and the Rehabilitation Act.
Judge Greer finds that the Plaintiffs have shown a strong
likelihood of success on the merits as to whether the Knox County
Board of Education, in not providing them with a reasonable
accommodation, excluded them from participation in or denied them
the benefits of its services, programs, or activities. In response,
the Knox County Board of Education has failed to demonstrate that
the reasonable accommodation that the Plaintiffs request would
fundamentally alter the nature of its services, programs, or
activities by imposing an undue administrative burden on it.
Judge Greer must now proceed to an analysis of the fourth and final
element of a failure-to-accommodate claim: causation. He finds that
the Plaintiffs have shown a strong likelihood of success on the
merits as to whether the Knox County Board of Education
discriminated against them "by reason of" their disabilities, 42
U.S.C. Section 12132, and having done so, they have now shown a
strong likelihood of success on the merits as to their
failure-to-accommodate claim. The record evidence of the Knox
County Board of Education's failure to provide the reasonable
accommodation that the Plaintiffs request -- a mask mandate -- is
by itself evidence of disability discrimination.
D. Irreparable Harm to Plaintiffs
Having addressed the Plaintiffs' likelihood of success on the
merits of their claims, Judge Greer next considers whether the
Plaintiffs have shown that without a preliminary injunction they
will suffer irreparable harm. In light of the evidence of slack
social-distancing measures among students, he finds that Delta's
extreme transmissibility, and the 600% daily hike in cases in Knox
County's school-age children since the start of the school year,
the risk of infection to T.W., M.K., and any other similarly
situated individual with a right of access to Knox County's school
buildings is neither speculative nor theoretical. It is real, and
likely. Knox County students are being infected right now, every
day, at a rate of 162 students every day, and the threat of harm is
therefore "immediate," "even if the possible infection might not
affect all of those exposed." "It would," indeed, "be odd to deny
an injunction" when the Plaintiffs have "plainly proved an unsafe,
life-threatening condition in their schools on the ground that
nothing yet had happened to them."
Whether the risk to the Plaintiffs materializes in "the next week
or month or year," that risk, nevertheless, will remain present
every day when the school bell rings. Judge Greer holds that the
Plaintiffs have therefore satisfied their burden of establishing
that they are likely to suffer irreparable harm without a mask
mandate.
E. Substantial Harm to Others
Next, the Plaintiffs must show that a preliminary injunction would
not result in substantial harm to others. When addressing whether a
preliminary injunction would cause substantial harm to others, the
Court may consider potential harm to non-parties and to the
Defendants.
During the evidentiary hearing, Dr. Yaun described mask-wearing as
"simple," and he debunked theories that masks are unsafe either
because they contain germs or are harmful to the immune system. Dr.
Yaun also testified that students can wear any type of mask they
like, whether it be a surgical mask or a cloth mask. Although Dr.
Ker testified that individuals with certain medical conditions,
like a tracheotomy or autism, may have difficulty wearing masks,
Judge Greer can permit exemptions to a mask mandate for these
individuals. He, therefore, can identify no harm to others that
would result from a mask mandate, and this factor weighs in favor a
preliminary injunction.
F. The Public Interest
Lastly, as for the question of whether a preliminary injunction
would serve the public interest, the Plaintiffs argue that a
preliminary injunction would serve the public interest because it
would advance the ADA's mandate by providing Plaintiffs with a
reasonable accommodation for their disabilities. The Knox County
Board of Education, however, asserts that a preliminary injunction
would not be in the public interest because it would be a "judicial
solution" to "a political question" and would "subvert its
authority" to manage and control its school system.
But the Court has already rejected the Knox County Board of
Education's argument that the Plaintiffs' claims require the Court
to delve into a political question under the political-question
doctrine. Judge Greer finds that the Plaintiffs have demonstrated a
strong likelihood of success on the merits of their ADA claim, and
a preliminary injunction would therefore serve the public interest
by achieving the ADA's "broad mandate" to "'eliminate
discrimination against disabled individuals," with the objective of
"integrating them 'into the economic and social mainstream of
American life.'" This factor therefore militates in favor of a
preliminary injunction, as do the other three factors.
Conclusion
Under Rule 65, Judge Greer concludes that the Plaintiffs have met
their burden of establishing that they are entitled to a
preliminary injunction against the Knox County Board of Education
and Governor Lee's Executive Order No. 84.
Judge Greer, therefore, granted the Plaintiffs' motion for a
preliminary injunction. The Knox County Board of Education is
enjoined from enforcing its Sept. 1, 2021 vote against a mask
mandate in Knox County Schools. The Knox County Board of Education
is ordered to enforce -- with immediate effect -- the mask mandate
that was in place in all Knox County Schools during the 2020-2021
school year, as a reasonable accommodation under the ADA for the
Plaintiffs and the Class Plaintiffs.
Governor Lee is enjoined from enforcing Executive Order No. 84 in
Knox County or allowing parents in Knox County to opt out of the
Knox County Board of Education's mask mandate.
The Knox County Board of Education may grant exemptions to the
Court's mask mandate under Policy C-240, which was in effect during
the 2020-2021 school year. It is ordered to file monthly status
reports in which it identifies the number of exemptions it grants
every month for students, employees, and visitors; the full names
of the exempted individuals; and the specific reasons for their
exemptions. The Knox County Board of Education will also inform the
Court as to whether any exempted individual received an exemption
under last year's mask mandate as well. The Knox County Board of
Education may move for leave to file these status reports under
seal. The first status report is due by Nov. 1, 2021.
The case will now proceed on the merits.
The Corrected Motion of Tennessee Chapter of the American Academy
of Pediatrics and American Academy of Pediatrics for Leave to File
as Amici Curiae in Support of Plaintiffs' Motion for Preliminary
Injunction is denied as moot. The Tennessee Chapter of the American
Academy of Pediatrics and the American Academy of Pediatrics,
however, may move for leave to file an amici curia brief in
response to any future motion in the case.
A full-text copy of the Court's Oct. 12, 2021 Amended Memorandum
Opinion & Order is available at https://tinyurl.com/2cejh9wb from
Leagle.com.
UNITED STATES: Plaintiffs Seek Clarification of Sept. 15 Order
---------------------------------------------------------------
In the class action lawsuit captioned as DOES 1-6, on behalf of
themselves and all others similarly situated, v. UNITED STATES OF
AMERICA, and MERRICK GARLAND, in his official capacity as United
States Attorney General, Case No. 2:21-cv-03254-RGK-MAR (C.D.
Cal.), the Plaintiffs ask the Court to reconsider its September 15,
2021 order denying Plaintiffs' motion for a preliminary injunction,
and to clarify and modify its Order to state that they had standing
and were a proper party to move for return of the property seized
from their safe deposit boxes, pursuant to section 983(a)(1)(F).
The Plaintiffs in their motion argued they were entitled to return
of their property pending any further proceedings, both because
they received no notice of seizure within 60 days, and because the
notices of administrative forfeiture they received did not comport
with the forfeiture statute or due process.
In denying relief, the Court cited the statute's provision that if
the Government does not send notice of a seizure of property "to
the person from whom the property was seized, the Government shall
return the property to that person."
The Court concluded that if the government violates the statutory
deadline, persons asserting actual ownership of the seized property
essentially do not have standing under the statute to request
return of their property if an uninterested third party who 2
actually or constructively have been in possession of the property
does.
A copy of the Plaintiffs' motion dated Oct. 15, 2021 is available
from PacerMonitor.com at https://bit.ly/3EjodZx at no extra
charge[CC]
The Plaintiffs are represented by:
Eric Honig, Esq.
Marina del Rey, Esq.
LAW OFFICE OF ERIC HONIG
A Professional Law Corporation
P.O. Box 10327
Telephone: (310) 699-8051
Facsimile: (310) 943-2220
E-mail: erichonig@aol.com
- and -
Richard M. Barnett, Esq.
A Professional Law Corporation
105 West F Street, 4th Floor
San Diego, CA 92101
E-mail: richardmbarnett@gmail.com
Telephone: (6l9) 231-1182
Facsimile: (619) 233-3221
- and -
Michael S. Chernis, Esq.
CHERNIS LAW GROUP P.C.
Santa Monica Water Garden
2425 Olympic Blvd., Suite 4000-W
Santa Monica, CA 90404
Michael@chernislaw.com
Telephone: (310) 566-4388
Facsimile: (310) 382-2541
- and -
Eric D. Shevin, Esq.
SHEVIN LAW GROUP
15260 Ventura Boulevard, Suite 1400
Sherman Oaks, CA 91403
E-mail: eric@shevinlaw.com
Telephone: (818) 784-2700
Facsimile: (818) 784-2411
- and -
Paul L. Gabbert, Esq.
2530 Wilshire Boulevard, Second Floor
Santa Monica, CA 90403
Telephone: 424 272-9575
Facsimile: 310 829-2148
E-mail: plgabbert@aol.com
- and -
Devin J. Burstein, Esq.
WARREN & BURSTEIN
501 West Broadway, Suite 240
San Diego, CA 92101
Telephone: (619) 234-4433
E-mail: db@wabulaw.com
WELLS FARGO: Bald Appeals Case Dismissal to 9th Cir.
----------------------------------------------------
Plaintiff DAVID EMORY BALD filed an appeal from a court ruling
entered in the lawsuit styled DAVID EMORY BALD, individually and on
behalf of others similarly situated; and EMILY LELIS, individually
and on behalf of others similarly situated; Plaintiffs v. WELLS
FARGO BANK, Defendant, Case No. 1:13-cv-00135-SOM-RT, in the U.S.
District Court for the District of Hawaii, Honolulu.
This lawsuit was filed against Defendant Wells Fargo Bank arising
from alleged conduct relating to the non-judicial foreclosure of
property owned by Plaintiff David together with his wife, Susan
Coloma Bald, as well as property owned by Plaintiff Emily Lelis.
In executing their respective mortgages, Plaintiffs BALD and LELIS
each pledged all of their right, title, and interest in their
Property to their mortagee, and each Mortgage (which was a
standard-form single-family residential mortgage similar to the
ones executed by other members of the Class) gave the mortgagee a
power of sale under which Plaintiffs BALD and LELIS agreed to
entrust the sale of all of their right, title, and interest in
their Property to their mortgagee in the event they defaulted on
their Note, with the proceeds in excess of amounts due under their
Note plus costs to go back to Plaintiffs. Each mortgagee in turn
impliedly agreed to sell the interests of Plaintiffs BALD and LELIS
in their respective Properties in a manner intended to obtain the
best possible price for the Property so entrusted. Similar
agreements by the original lender were made with respect to each
member of the Class.
The complaint further asserts that Plaintiffs "were each required
by their respective lenders to have marketable title to their
Properties in fee simple without encumbrances in order for such
Properties to serve as adequate security for their loans." As a
result, "each lender knew that the interest pledged by Plaintiffs
was an unencumbered fee simple interest that Plaintiffs had in turn
acquired by warranty deed, and that is what each lender agreed to
sell in the event that it exercised the power of sale."
The Plaintiffs complain that Wells Fargo wrongly advertised the
Bald Property and the Lelis Property as being sold by quitclaim
deed only, even though Wells Fargo "knew or through the exercise of
reasonable care should have known that there were no superior
claims of title or priority to its own claim and that it therefore
had the power and the duty to market and sell the property of each
member of the class in fee simple."
Mr. Bald now seeks a review of the Court's Order dated October 8,
2021, granting Wells Fargo's motion to dismiss his first amended
complaint.
The appellate case is captioned as David Bald, et al. v. Wells
Fargo Bank, N.A., et al., Case No. 21-16680, in the United States
Court of Appeals for the Ninth Circuit, filed on October 12, 2021.
The briefing schedule in the Appellate Case states that:
-- Appellant David Emory Bald Mediation Questionnaire was due
October 19, 2021;
-- Transcript shall be ordered by November 9, 2021;
-- Transcript is due on December 9, 2021;
-- Appellant David Emory Bald opening brief is due on January
18, 2022;
-- Appellees answering brief is due on February 17, 2022; and
-- Appellant's optional reply brief is due 21 days after service
of the answering brief.[BN]
Plaintiff-Appellant DAVID EMORY BALD, individually and on behalf of
all others similarly situated, is represented by:
James J. Bickerton, Esq.
BICKERTON LAW GROUP, LLLP
745 Fort Street Mall, Suite 801
Honolulu, HI 96813-3815
Telephone: (808) 599-3811
- and -
Van-Alan H. Shima, Esq.
VAN-ALAN SHIMA, ATTORNEY AT LAW
1188 Bishop Street, Suite 3408
Honolulu, HI 96813
Telephone: (808) 545-4600
Defendants-Appellees WELLS FARGO BANK, N.A., a national banking
association; THE LAW OFFICE OF DAVID B. ROSEN, a law corporation, a
Hawaii professional corporation; and DAVID BRADLEY ROSEN are
represented by:
Edmund K. Saffery, Esq.
Deirdre Marie-Iha, Esq.
GOODSILL ANDERSON QUINN & STIFEL LLP
999 Bishop Street
First Hawaiian Center, Suite 1600
Honolulu, HI 96813
Telephone: (808) 547-5600
- and -
Mark Douglas Lonergan, Esq.
Michael Jan Steiner, Esq.
SEVERSON & WERSON APC
One Embarcadero Center
San Francisco, CA 94111
Telephone: (415) 398-3344
- and -
Kalama Lui-Kwan, Esq.
TROUTMAN PEPPER HAMILTON SANDERS LLP
3 Embarcadero Center, Suite 800
San Francisco, CA 94111
Telephone: (415) 477-5700
- and -
Christopher Tanega Goodin, Esq.
Peter William Olson, Esq.
CADES SCHUTTE LLP
1000 Bishop Street, Suite 1200
Honolulu, HI 96813
Telephone: (808) 521-9200
- and -
David Bradley Rosen, Esq.
THE LAW OFFICES OF DAVID B. ROSEN, ALC
810 Richards St.
Honolulu, HI 96813
Telephone: (808) 523-9393
WESTCHESTER PARKWAY: Edgar Suit Seeks to Certify Collective Action
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In the class action lawsuit captioned as JAMES EDGAR, on behalf of
himself and others similarly situated, v. WESTCHESTER PARKWAY
CONSULTING LLC dba SOLIVITA HEALTH, et al., Case No.
2:21-cv-00533-MHW-KAJ (S.D. Ohio), the Plaintiff asks the Court to
enter an order conditionally certify a collective action pursuant
to 29 U.S.C. section 216(b) and approve the attached Notice and
Consent Form to be sent to the putative class members who are
defined as:
"All current and former hourly, non-exempt healthcare
employees of Defendants who had a meal break deduction
applied during any workweek that they were paid for at least
40 hours of work in the three years preceding the filing of
this Motion and continuing through the final disposition
("Potential Opt-In Plaintiffs")."
A copy of the Plaintiff's motion to certify class dated Oct. 15,
2021 is available from PacerMonitor.com at https://bit.ly/3BcSQhi
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 ICE MILLER LLP
1550 Old Henderson Rd., Suite 126
Columbus, OH 43220
Telephone: (614) 949- 1181
The Defendant is represented by:
Paul L. Bittner, Esq.
Abigail J. Barr, Esq.
ICE MILLER LLP
250 West Street, Suite 700
Columbus, OH 43215
Telephone: (614) 462-2700
Facsimile: (614) 462-5135
E-mail: paul.bittner@icemiller.com
abigail.barr@icemiller.com
WFM PRIVATE: Court Enters Revised Case Scheduling Order in Kellman
------------------------------------------------------------------
In the class action lawsuit captioned as SHOSHA KELLMAN, on behalf
of herself and all others similarly situated, v. WFM PRIVATE LABEL,
L.P., WHOLE FOODS MARKET CALIFORNIA, INC., WHOLE FOODS MARKET
SERVICES, INC., and WHOLE FOODS MARKET DISTRIBUTION, INC., Case No.
3:17-cv-06584-LB (N.D. Cal.), the Hon. Judge Laurel Beeler entered
a joint revised case scheduling order as follows:
Case Event Filing Date/Disclosure
Date/Hearing Date
-- ADR Completion Date TBD
-- Completion document production December 15, 2021
pursuant to the Court’s September
30, 2021 Order
-- Completion of depositions of January 28, 2022
previously noticed witnesses
-- Class Certification opening February 25, 2022
expert reports
-- Class Certification rebuttal March 25, 2022
expert reports
-- Class Certification expert April 15, 2022
depositions
-- Motions for class certification April 29, 222
-- Oppositions to motions for May 27, 2022
class certification
-- Replies to motions for class June 24, 2022
certification
-- Hearing date for motions for July 28, 2022
class certification and/or at 11:00 a.m.
further case-management
conference
-- Further case-management September 22, 2022
conference at 11:00 a.m.
-- Last hearing date for dispositive December 15, 2022
motions and/or further at 11:00 a.m.
case-management conference
-- Other dates TBD
WFM Private Label LP is a company headquartered in the United
States focused on grocery stores. Whole Foods Market California,
Inc. provides food services.
A copy of the Court's order dated Oct. 15, 2021 is available from
PacerMonitor.com at https://bit.ly/3nx6zL4 at no extra charge[CC]
The Plaintiff is represented by:
James A. Francis, Esq.
Lauren KW Brennan, Esq.
FRANCIS MAILMAN SOUMILAS, P.C.
1600 Market Street, Suite 2510
Philadelphia, PA 19103
Telephone: (215) 735-8600
Facsimile: (215) 940-8000
The Defendants are represented by:
David P. Adams, Esq.
Brian R. Blackman, Esq.
J.T. Wells Blaxter, Esq.
BLAXTER | BLACKMAN LLP
601 California Street, Suite 1505
San Francisco, CA 94108
WSP USA: Ford Bid for Conditional Status of Collective Partly OK'd
------------------------------------------------------------------
In the class action lawsuit captioned as HAROLD FORD v. WSP USA,
INC., Case No. 1:19-cv-11705-LGS (S.D.N.Y.), the Hon. Judge Lorna
G. Schofield entered an order:
1. denying WSP's motion for partial summary judgment; and
2. granting in part Plaintiff's motion for conditional
certification of a collective.
The Court said, "Plaintiff's motion for conditional certification
was delayed by the parties' willingness to participate in
settlement conferences before the Court, as well as the time
required to resolve this motion. To avoid prejudice to actual or
potential opt-in plaintiffs, Plaintiff's request for equitable
tolling is granted in part and the Fair Labor Standards Act (FLSA)
statute of limitations is tolled from March 26, 2021, the date on
which Plaintiff filed his motion for conditional certification, to
the date of this Opinion and Order. Tolling is not extended
throughout the notice period because Plaintiff has not demonstrated
that extraordinary circumstances warrant tolling during that
time."
The Plaintiff Harold Ford asserts claims under the FLSA against WSP
USA, on behalf of himself and all similarly situated health, safety
and environmental ("HSE") workers who elect to opt into this
action.
The complaint alleges that WSP willfully violated the FLSA's
overtime requirements, 29 U.S.C. section 207(a), by failing to pay
HSE workers an overtime premium of one and a half times their
regular rate of pay for time worked over 40 hours in a work week.
WSP provides construction support and professional engineering
services.
A copy of the Court's order dated Oct. 14, 2021 is available from
PacerMonitor.com at https://bit.ly/3Ch67XS at no extra charge.[CC]
*********
S U B S C R I P T I O N I N F O R M A T I O N
Class Action Reporter is a daily newsletter, co-published by
Bankruptcy Creditors' Service, Inc., Fairless Hills, Pennsylvania,
USA, and Beard Group, Inc., Washington, D.C., USA. Rousel Elaine T.
Fernandez, Joy A. Agravante, Psyche A. Castillon, Julie Anne L.
Toledo, Christopher G. Patalinghug, and Peter A. Chapman, Editors.
Copyright 2021. All rights reserved. ISSN 1525-2272.
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