/raid1/www/Hosts/bankrupt/CAR_Public/211118.mbx
C L A S S A C T I O N R E P O R T E R
Thursday, November 18, 2021, Vol. 23, No. 225
Headlines
3M CO: Dalton Appeals Denial of Nuisance Claim Dismissal Bid
451 COMMONS CO: Hubert Hits Undisclosed Biometrics Data Retention
ABBVIE INC: Court Certifies Class in Holwill
ACLARIS THERAPEUTICS: Nov. 30 Final Hearing on Rosi-Fulcher Accord
ALABAMA: Court Grants Buckner's Bid to Dismiss A.A. v. DHR Suit
ALIGN TECH: $16MM Accord in Calif. Securities Suit Wins Initial OK
ALIGN TECH: Respondents' Appellate Brief Due Nov. 22
ALLSTATE PROPERTY: Court Dismisses Trzeciak Suit With Prejudice
AMOREPACIFIC US: Redick Sues Over Non-Blind Friendly Website
AQUESTIVE THERAPEUTICS: Bid to Dismiss NJ Securities Suit Underway
AR RESOURCES: Court Dismisses Fleming's Amended FDCPA Complaint
AT&T INC: Bugielski Appeals Summary Judgment in ERISA Class Suit
BIODELIVERY SCIENCES: Remaining Bid to Dismiss Drachman Suit Denied
CASA SYSTEMS: Appeals over Dismissal of IPO Suits Still Pending
CBOE GLOBAL: Awaits 7th Cir. Ruling on Tomasulo Appeal
CENTRAL STATES: Melcher Slams Shady Grains Trading Contract
COLGATE-PALMOLIVE CO: Appeal in ERISA Related Class Suit Pending
CONVERSE ELECTRIC: Jones' Class of Workers Conditionally Certified
CORCEPT THERAPEUTICS: Melucci Purported Class Suit Underway
COSTCO WHOLESALE: Corker Class Cert Bid Filing Extended to Dec. 22
CUMULUS MEDIA: Court Dismisses Class Suit Over 401(k) Plan
DAVID RUDOVSKY: Pennsylvania Court Tosses Graham's Suit v. Attys.
DAVITA INC: Bid to Junk Consolidated Class Suit in Illinois Pending
DAVITA INC: Peace Officers' Suit Dismissed with Prejudice
ESPERION THERAPEUTICS: $18MM Accord Wins Court Approval
EXACT SCIENCES: Genomic Health Investor's Suit Dismissed
FANNIE MAE: Continues to Defend Suits Over Stock Purchase Deals
FLEX LIMITED: Dismissal of Class Suit in California Under Appeal
FREDDIE MAC: Discovery Ongoing in Senior Preferred Stock Litigation
FREDDIE MAC: Seeks Dismissal of Appeal on Denial of Class Cert. Bid
GRANITE CONSTRUCTION: Final Fairness Hearing Set for Feb. 24, 2022
GRUMA CORP: Orozco Appeals Arbitration Ruling in Labor Class Suit
HEALTH CARE SERVICE: Terry Appeals Judgment in Insurance Suit
ILLINOIS STATE UNIVERSITY: Moylan Appeals Fee Refund Suit Dismissal
INDIA GLOBALIZATION: Deal Reached in Tchatchou Consolidated Suit
JAVITCH BLOCK: Appeals Ruling in Redman Consumer Credit Suit
JIANPU TECHNOLOGY: Agreement in Principle Reached in Panther Suit
JIANPU TECHNOLOGY: Bid to Junk Guttentag Suit Pending
JOHNSON & JOHNSON: AWP Suit in New Jersey Ongoing
JOHNSON & JOHNSON: Continues to Defend Elmiron Related Suits
JOHNSON & JOHNSON: Continues to Defend Invokana Related Suits
JOHNSON & JOHNSON: Court Dismisses Talc-Related Suit in Illinois
JOHNSON & JOHNSON: Dismissal of ERISA-Related Class Suit Appealed
KOLD TRANS: Hamilton Slams Missed Breaks, Seeks Overtime Pay
LIVE NATION: Oberstein Appeals Antitrust Suit Dismissal
LOANDEPOT.COM LLC: N.D. Illinois Narrows Claims in Lewis Suit
LOUISIANA: Appeals Ruling in Prisoners' Medical Care Suit
MARRIOTT INT'L: Suits Over Data Security Breach Underway
MDL 2905: Toyota Appeals Arbitration Bid Denial in Renteria Case
MID-AMERICA APARTMENT: Appeals Class Certification of Cleven Suit
MKS INSTRUMENTS: Oral Argument in Shareholder Suit Set for Dec. 15
MOHAWK INDUSTRIES: Court Narrows Claims in Shareholder Class Suit
MOHAWK INDUSTRIES: Loses Bid to Dismiss Johnson Class Suit
MONEYGRAM INT'L: Bid to Junk Illinois Putative Class Suit Pending
MONEYGRAM INT'L: Class Suit Over Ties to Ripple Labs Junked
NCR CORPORATION: Settlement Reached in Suit Against Cardtronics
NEO TECHNOLOGY: Time to File Response/Reply Extended in Portier
NEWELL BRANDS: Continues to Defend OFPRS Suit
NOBLE ENERGY: Boulter Appeals Dismissal of Royalty Owners' Suit
OMNI HOTELS: S.D. California Narrows Claims in Beaver Class Suit
ONE OFF HOSPITALITY: Roberts Suit Seeks Unpaid Wages, Damages
OPPENHEIMER HOLDINGS: Faces Dawson Blvd Class Suit
PERRY'S RESTAURANTS: Court Grants PSC's Bid to Dismiss Green Suit
PORTLAND GENERAL: March 11, 2022 Settlement Fairness Hearing Set
PROCTER & GAMBLE: Bid to Move, Dismiss or Stay Drake Suit Denied
ROBINHOOD MARKETS: Bid to Junk Short Squeeze Trading Suit Pending
ROBINHOOD MARKETS: Bid to Transfer Order Flow Litigation Pending
ROBINHOOD MARKETS: Class Cert. Bid in Service Outage Suit Pending
ROBINHOOD MARKETS: Court Narrows Claims in Mehta Class Suit
ROBINHOOD MARKETS: Court Transfers Gordon Class Suit to Washington
RPM PIZZA: Shortchanges Driver's Expense Reimbursements, Suit Says
RUTH'S HOSPITALITY: Discovery in Guerrero Suit Ongoing
SAMSUNG ELECTRONICS: McCoy Slams Defective Hinges on Chromebook
SENTINEL INSURANCE: Protege Appeals Insurance Suit Dismissal
SERVICE CORP: Moulton Class Action Considered Resolved
SIRIUS XM: Appeal in Flo & Eddie Class Action Remains Stayed
SKECHERS USA: Wilk Putative Class Suit Settled
SUN COMMUNITIES: Seeks 11th Cir. Review in Royal Palm Class Suit
TRADEWEB MARKETS: Bid to Nix Antitrust Class Suits Pending
UNILEVER UNITED: Pardini Appeals Ruling in Product Labeling Case
UNITED THERAPEUTICS: Bid to Strike MSP Amended Complaint Pending
US STEEL: Consolidated Shareholder Action Ongoing in Pennsylvania
US XPRESS: Arbitration Hearing in Contractor Suit Set for June 2022
US XPRESS: IPO Related Class Actions Underway
US XPRESS: Settlement Reached in Tennessee Contractor Suit
US XPRESS: Trial in Wage & Hour Class Suit Set for March 1, 2022
WINS FINANCE: Continues to Defend Kamau Shareholder Class Suit
WINS FINANCE: Desta Settlement Awaits Final Approval
XEROX CORP: Ribbe Suit Concluded
*********
3M CO: Dalton Appeals Denial of Nuisance Claim Dismissal Bid
-------------------------------------------------------------
Defendant The City of Dalton, Georgia, acting through its Board of
Water, Light and Sinking Fund Commissioners, d/b/a Dalton
Utilities, filed an appeal from a court ruling entered in the
lawsuit entitled JARROD JOHNSON, individually and on behalf of a
class of persons similarly situated, Plaintiff v. 3M COMPANY, et
al., Defendants, Case No. 4:20-cv-0008-AT, in the United States
District Court for the Northern District of Georgia.
As reported in the Class Action Reporter, the lawsuit was removed
from the Georgia Superior Court, Floyd County, to the U.S. District
Court for the Northern District of Georgia on Jan. 10, 2020.
The case is a class action brought on behalf of individual
Plaintiff and Class Representative Jarrod Johnson and a class of
people similarly situated, who have been damaged and continue to be
damaged due to the intentional, willful, wanton, reckless, and
negligent release of toxic chemicals, including perfluorooctanoic
acid ("PFOA"), perfluorooctane sulfonate ("PFOS"), and related
chemicals that degrade to PFOA and/or PFOS, precursors to PFOA and
PFOS, and related chemicals from the Defendants' manufacturing
processes and facilities. By such wrongful acts and omissions, the
Defendants have created and maintained a continuing public nuisance
causing harm and injury to the Plaintiff and the Proposed Class
Members, says the complaint.
The Defendant currently seeks a review of the Court's Order dated
September 20, 2021, which denied Dalton Utilities' motion to
dismiss Count VII of Plaintiff's Third Amended Complaint.
Specifically, Dalton Utilities appeals from an Order, which denied
its motion to dismiss Plaintiff's nuisance claim on sovereign
immunity grounds.
The appellate case is captioned as JARROD JOHNSON v. 3M COMPANY, et
al., Case No. 21-13663, in the United States Court of Appeals for
the Eleventh Circuit, filed on October 20, 2021.[BN]
Defendant-Appellant The City of Dalton, Georgia, acting through its
Board of Water, Light and Sinking Fund Commissioners, d/b/a Dalton
Utilities, is represented by:
E. Fitzgerald Veira, Esq.
Lindsey B. Mann, Esq.
TROUTMAN PEPPER HAMILTON SANDERS LLP
600 Peachtree Street, N.E., Suite 3000
Atlanta, GA 30308
Telephone: (404) 885-3000
E-mail: fitzgerald.veira@troutman.com
lindsey.mann@troutman.com
- and -
Brooks M. Smith, Esq.
TROUTMAN PEPPER HAMILTON SANDERS LLP
1001 Haxall Point, Suite 1500
Richmond, VA 23219
Telephone: (804) 697-1200
E-mail: brooks.smith@troutman.com
451 COMMONS CO: Hubert Hits Undisclosed Biometrics Data Retention
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Natalia Hubert, on behalf of herself and other persons similarly
situated, Plaintiff, v. 451 Commons Co. and 459 Randall Crossings
Co., Defendants, Case No. 2021L001151 (Ill. Cir., November 1,
2021), seeks an injunction requiring Defendants to cease all
unlawful activity related to the capture, collection, storage and
use of biometrics, as well as statutory damages together with costs
and reasonable attorneys' fees for violation of the Illinois
Biometric Information Privacy Act.
Defendants operate Bulldog Aurora and Bulldog North Aurora, which
are bar/restaurants where Hubert worked since August 2021 as a
general manager. Hubert claims that Defendants required her to
provide personalized biometric indicators and biometric
information. She said Defendants collected and stored her
fingerprints and required her to clock-in and clock-out by scanning
her fingerprints into a fingerprint-scanning machine. Hubert says
that she has not been notified where her fingerprints are being
stored, for how long will they be stored and what might happen to
this information. [BN]
Plaintiff is represented by:
Christopher J. Wilmes, Esq.
Tex Pasley, Esq.
HUGHES SOCOL PIERS RESNICK DYM, LTD.
70 West Madison Street, Suite 4000
Chicago, IL 60602
Tel: (312) 580-0100
Email: cwilmes@hsplegal.com
tpasley@hsplegal.com
ABBVIE INC: Court Certifies Class in Holwill
--------------------------------------------
A federal securities lawsuit against AbbVie Inc. has won class
status, the Company said in its Form 10-Q Report filed with the
Securities and Exchange Commission on November 2, 2021, for the
quarterly period ended September 30, 2021.
"In October 2018, a federal securities purported class action
lawsuit, Holwill v. AbbVie Inc., et al., was filed in the United
States District Court for the Northern District of Illinois against
AbbVie, its chief executive officer and former chief financial
officer, alleging thaat reasons stated for Humira sales growth in
financial filings between 2013 and 2017 were misleading because
they omitted alleged misconduct in connection with Humira patient
and reimbursement support services and other services and items of
value that allegedly induced Humira prescriptions," the Company
said.
In September 2021, the court granted plaintiffs' motion to certify
a class.
AbbVie is an American publicly traded biopharmaceutical company
founded in 2013.
ACLARIS THERAPEUTICS: Nov. 30 Final Hearing on Rosi-Fulcher Accord
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The U.S. District Court for the Southern District of New York will
convene a hearing November 30, 2021, to consider final approval of
the settlement reached in the Rosi-Fulcher consolidated class
action lawsuit against Aclaris Therapeutics, Inc., the Company said
in its Form 10-Q Report filed with the Securities and Exchange
Commission on November 2, 2021, for the quarterly period ended
September 30, 2021.
On July 30, 2019, plaintiff Linda Rosi filed a putative class
action complaint captioned Rosi v. Aclaris Therapeutics, Inc., et
al. in the U.S. District Court for the Southern District of New
York against the Company and certain of its executive officers.
The complaint alleges the defendants violated federal securities
laws by, among other things, failing to disclose an alleged
likelihood that regulators would scrutinize advertising materials
related to ESKATA and find that the materials minimized the risks
or overstated the efficacy of the product.
The complaint seeks unspecified compensatory damages on behalf of
Rosi and all other persons and entities that purchased or otherwise
acquired the Company's securities between May 8, 2018 and June 20,
2019.
On September 5, 2019, an additional plaintiff, Robert Fulcher,
filed a substantially identical putative class action complaint
captioned Fulcher v. Aclaris Therapeutics, Inc., et al. in the same
court against the same defendants.
On November 6, 2019, the court consolidated the Rosi and Fulcher
actions and appointed Fulcher "lead plaintiff" for the putative
class.
"On January 24, 2020, Fulcher filed a consolidated amended
complaint in the Consolidated Securities Action, naming two
additional executive officers as defendants, extending the putative
class period to August 12, 2019, and adding allegations concerning,
among other things, alleged statements and omissions throughout the
putative class period concerning ESKATA's risks, tolerability and
effectiveness.," the Company said.
The defendants filed a motion to dismiss the consolidated amended
complaint on April 17, 2020.
Following briefing and oral argument on February 25, 2021, the
motion was granted in part and denied in part on March 29, 2021,
and the issues in dispute significantly narrowed.
The defendants filed an answer to the remaining aspects of the
consolidated amended complaint on April 19, 2021.
In June 2021, the defendants and the plaintiffs agreed to settle
the Consolidated Securities Action. The parties signed and filed a
settlement agreement in July 2021.
On August 18, 2021, the court preliminarily approved the proposed
settlement, directed that notice be given to the putative class and
scheduled the final approval settlement hearing for November 30,
2021.
Notice was subsequently given to the putative class.
The proposed settlement is subject to final approval by the court.
The Company had $2.65 million accrued as of September 30, 2021 for
its estimated financial obligation.
The Company expects its financial obligation to be within the
limits of its insurance coverage and accordingly recorded a
receivable for an insurance recovery equal to the settlement
amount.
The insurance recovery receivable and the litigation settlement
liability are recorded in prepaid expenses and other current assets
and accrued expenses, respectively, in the condensed consolidated
balance sheet.
Aclaris Therapeutics, Inc. is a clinical-stage biopharmaceutical
company.
ALABAMA: Court Grants Buckner's Bid to Dismiss A.A. v. DHR Suit
---------------------------------------------------------------
In the case, A.A. a minor, by Jenny Carroll, et al., Plaintiffs v.
NANCY T. BUCKNER, Commissioner of the Alabama Department of Human
Resources, in her official capacity, Defendant, Civil Act No.
2:21CV367-ECM (M.D. Ala.), Judge Emily C. Marks of the U.S.
District Court for the Middle District of Alabama, Northern
Division, issued a Memorandum Opinion and Order:
a. granting Defendant Buckner's motion to dismiss the
complaint;
b. denying as moot the Plaintiffs' motion for Jenny Carroll to
be named next friend for Plaintiffs A.A.;
c. granting the Plaintiffs' motion for Jenny Carroll to be
named next friend for Plaintiff B.B., for Christine Freeman
to be named next friend for Plaintiff D.D., and for C.G. to
be named next friend for Plaintiff C.C.; and
d. granting the Plaintiffs' motion to file surreply.
Background
The Plaintiffs filed a Class Action Complaint for Declaratory and
Injunctive Relief, on May 20, 2021. They bring claims of
discrimination in violation of the Americans with Disabilities Act
(ADA) (count one) and discrimination in violation of Section 504 of
the Rehabilitation Act (count two).
The Plaintiffs are youths with mental impairments in the custody of
the DHR who have been removed from their families and are placed
in, or are at risk of being placed in, psychiatric residential
treatment facilities (PRTFs). The Defendant Commissioner of Alabama
Department of Human Resources (DHR) is sued in her official
capacity.
PRFTs are non-hospital residential facilities that provide mental
health services to individuals who are Medicaid-eligible under the
age of 21. The complaint alleges that youth in PRTFs are cut off
from family and friends and have few opportunities to interact with
persons without a disability. Placement is also alleged to prevent
the formation of meaningful relationships with adults, leading to
toxic stress. The complaint alleges that DHR overuses residential
facilities for children in foster care, so that 52% of all children
and youth in residential facilities are placed in PRTFs. The
complaint further alleges that DHR unjustifiably places and
maintains children in PRTFs because it fails to fulfill its duty to
procure, support, and maintain family homes and integrated
community settings.
The amended complaint cites to a 2018 report to the federal
government in which the complaint alleges that DHR admitted that it
has relied on institutional placements because it lacks sufficient
community-based alternatives, and reports in 2019 and 2020 that DHR
needs more resource families to lessen its dependence on congregate
care facilities.
The complaint asserts that DHR has the framework for providing
necessary mental and behavioral health services, but rather than
expand programs, DHR continues a discriminatory policy of
unnecessarily institutionalizing youth in segregated placements.
The complaint separately alleges that children who should have been
evaluated and stepped down to family homes and other integrated
community settings are discriminated against and forced to stay in
facilities longer than necessary. The Plaintiffs challenge the
PRTFs level system to determine whether a child has completed the
program and can be stepped down to a less restrictive placement.
The Plaintiffs also challenge the conditions within certain of the
PRTFs.
The Plaintiffs allege that they are eligible for community-based
placement. With regard to A.A., the complaint alleges more
specifically that in August 2020, DHR determined that A.A. was
ready to be moved to a less restrictive environment, but A.A. has
not been moved.
The complaint asks the Court to award prospective injunctive relief
requiring the Defendant to develop and sustain sufficient capacity
of community-based placements and services to meet the needs of
Alabama's children in foster care with mental impairments; to
implement and sustain an effective system to ensure youth in foster
care with mental impairments are timely transitioned to integrated
settings in the community; and to successfully transition the
Plaintiffs to integrated settings in the community.
The Plaintiffs have moved for Jenny Carroll to be named next friend
for Plaintiffs A.A. and B.B., for Christine Freeman to be named
next friend for Plaintiff D.D., and for C.G. to be named next
friend for Plaintiff C.C.
Discussion
A. Motion to Appoint Next Friends
The Plaintiffs originally sought appointment of next friends for
A.A, B.B., C.C., and D.D. Plaintiff A.A. turned 19 while the motion
was pending and no longer requires a next friend. The Defendant
concedes that C.G., C.C.'s uncle, is an appropriate next friend. At
issue, therefore, are the requests for Carroll to be named next
friend for B.C. and for Freeman to be named next friend for D.D.
The Defendant opposes the naming of these next friends, arguing
primarily that while Carroll and Freeman are successful
professionals, they are not appropriate next friends because they
are "ideological next friends," and do not have a sufficiently
significant relationship with the Plaintiffs. They also point out
that the Plaintiffs are represented by guardians ad litem in state
court.
Upon review of the submitted declarations and the applicable law,
Judge Marks concludes that C.G., Carroll, and Freeman meet the
requirements of Rule 17(c) and that the motion is due to be
granted. She opines that a similar next friend request has been
approved by a court outside of the circuit, and she is persuaded by
its analysis that a non-family member next friend is appropriate
where state law does not confer general authority on guardians ad
litem to represent children outside of family court and the
children are in the care of the state and not their natural
parents.
B. Motion to Dismiss
The Defendant moves for dismissal of the Plaintiffs' claims on the
basis of lack of standing, Eleventh Amendment immunity, Younger v.
Harris, 401 U.S. 37 (1971) abstention, and failure to state a
claim.
1. Standing
The Defendant's first argument with respect to standing arises from
the requested next friends. It argues that the Plaintiffs lack
standing because they do not have appropriate next friends to
represent them. Having found the requested next friends to be
appropriate under Rule 17, even assuming without deciding that this
argument is appropriately raised as a standing argument, Judge
Marks holds it does not apply in the case.
The Defendant also argues that the Plaintiffs lack standing to
bring claims on behalf of all children placed or at risk of being
placed in PTRFs. She argues that the Plaintiffs have received
appropriate treatment and that the placement injuries pointed to
are not redressable by DHR because others, including the state's
courts, make the placement decisions.
Judge Marks opines the complaint plausibly alleges that the
Plaintiffs are eligible for integrated placements, but the failure
of the Defendant to make those options available is the reason
there has not been a change in placement. The complaint alleges
that it is DHR which can provide the needed services. To that
extent, therefore, there is redressability, so there is standing.
Judge Marks agrees, however, that the complaint also can be read to
seek relief through individual placement decisions. The request for
relief at the end of the complaint asks the Court to award
prospective injunctive relief requiring the Defendant to
"successfully transition Plaintiffs to integrated settings in the
community." To the extent that the complaint requests relief for an
injury that is not redressable by the Defendant, Judge Marks will
give the Plaintiffs an opportunity to file an amended complaint to
clarify their requested relief so that it conforms to their
characterization of it in their brief.
2. Eleventh Amendment Immunity
The Defendant contends that as the Commissioner of DHR she cannot
be sued, nor can attorneys' fees and costs be awarded, under the
Eleventh Amendment to the Constitution of the United States.
Prospective injunctive relief can be sought against a State
official in her official capacity, however, Judge Marks opines. In
addition, fees awarded ancillary to prospective relief are not
barred by the Eleventh Amendment. Therefore, this argument by the
Defendant is unavailing.
3. Abstention
Judge Marks explains that as a general rule, federal courts have a
"virtually unflagging obligation to exercise the jurisdiction given
them." In other words, "non-abstention" is the rule, and courts
should exercise their jurisdiction, citing 31 Foster Children v.
Bush, 329 F.3d 1255, 1274 (11th Cir. 2003). Younger abstention,
however, is an exception to this general rule.
Judge Marks will afford the Plaintiffs the opportunity to file an
amended complaint which includes only claims consistent with the
position they take in their brief; namely, that they seek only
systemic relief for DHR's failure to provide services in violation
of the ADA and Rehabilitation Act. She finds that instead of
potentially interfering with ongoing state dependency proceedings
by placing decisions that were in the hands of the state courts
under the direction of the federal district court, one aspect of
the requested relief asks the Court to require DHR to provide
integrated housing services system-wide so that those services will
be available to the Plaintiffs if the Plaintiffs are eligible for
them.
4. Failure to State a Claim
The Defendant contends that the Plaintiffs have failed to state a
claim of disability discrimination because they have not alleged
that they are substantially limited in one or more major life
activities.
In their brief, the Plaintiffs argue that they have sufficiently
pleaded that they are qualified individuals, arguing that they have
alleged that they are substantially limited in one or more major
life activities, and that the Defendant treats them for and regards
them as having mental impairments that substantially limit major
life activities because they confined to PRTFs.
The complaint, however, alleges that each of the Plaintiffs has a
mental impairment or has a record of such impairment, Judge Marks
finds. The complaint does not plead that the Defendant regarded the
Plaintiffs as having mental impairments, although the Plaintiffs'
arguments in brief appear to reflect an intent to proceed on a
theory that DHR regarded them as having disabilities. Therefore,
Judge Marks will allow the Plaintiffs to amend their claims to
include facts referred to in their brief but not included in the
complaint.
The Defendant also moves to dismiss the claims of Plaintiffs B.B.,
C.C., and D.D. on a ground newly raised in the reply brief. It
acknowledges that Plaintiff A.A. has alleged that DHR has
determined that she is ready to be moved to a less restrictive
environment, but contends that B.B., C.C., and D.D. have only made
a conclusory allegation that they are eligible for a
community-based placement. The Defendant alleges that the failure
to allege that an ADHR treatment professional, or any other
professional, has determined that community-based placement is
appropriate means that B.B., C.C., and D.D. have failed to state a
claim.
Judge Marks is persuaded by the reasoning that a state treatment
professional's opinion is not required to state a claim where, as
in the case, the Plaintiffs are bringing an Olmstead claim against
DHR. However, that conclusion does not also mean that no allegation
of any professional's determination is required. Complicating the
inquiry in the instant case is the issue of Younger abstention. The
Plaintiffs' theory in the case is that youth continue to be housed
in PRTFs because of the Defendant's failure to provide integrated
housing services. Younger abstention concerns are raised if the
Plaintiffs' theory requires a placement determination by the
Court.
Therefore, Judge Marks will give the Plaintiffs additional time to
re-plead the claims of B.B., C.C., and D.D. so that they can plead
additional facts for those Plaintiffs as they have for A.A.;
namely, that a professional, not necessarily a DHR treatment
professional, has determined that they are eligible for
community-based placement if the Plaintiffs can so plead consistent
with the requirements of Federal Rule of Civil Procedure 11.
Conclusion
For the reasons she discussed, Judge Marks ordered as follows:
1. The motion to appoint next friends is denied as moot as
to A.A. and is granted as to B.B., C.C., and D.D. Jenny Carroll is
named next friend for B.B., C.G. is named next friend for C.C., and
Christine Freeman is named next friend for D.D.
2. The motion to file surreply is granted.
3. The motion to dismiss is granted to the extent that the
Plaintiffs' claims are dismissed without prejudice to being
re-pleaded.
The Plaintiffs have until Nov. 19, 2021 to file a new, amended
complaint which is complete unto itself; which sufficiently alleges
the elements of their claims in a manner consistent with this
Memorandum Opinion and Order; and which clarifies their requested
relief.
A full-text copy of the Court's Oct. 29, 2021 Memorandum Opinion &
Order is available at https://tinyurl.com/53scwmkt from
Leagle.com.
ALIGN TECH: $16MM Accord in Calif. Securities Suit Wins Initial OK
------------------------------------------------------------------
A $16 million deal to resolve a securities class action lawsuit
against Align Technology, Inc. remains pending, the Company said in
its Form 10-Q Report filed with the Securities and Exchange
Commission on November 2, 2021, for the quarterly period ended
September 30, 2021.
According to a Top Class Actions report, US District Court Judge
Lucy H. Koh granted preliminary approval of the $16 million
settlement, and set a final hearing date for the settlement for
April 28.
On November 5, 2018, a class action lawsuit against Align and three
of the Company's executive officers was filed in the U.S. District
Court for the Northern District of California on behalf of a
purported class of purchasers of the Company's common stock.
The complaint generally alleged claims under the federal securities
laws and sought monetary damages in an unspecified amount and costs
and expenses incurred in the litigation.
On December 12, 2018, a similar lawsuit was filed in the same court
on behalf of a purported class of purchasers of the Company's
common stock.
On November 29, 2019, the lead plaintiff filed an amended
consolidated complaint against Align and two of the company's
executive officers alleging similar claims as the initial
complaints on behalf of a purported class of purchasers of the
Company's common stock from May 23, 2018 and October 24, 2018.
On September 9, 2020, Defendants' motion to dismiss the amended
consolidated complaint was granted in part and denied in part.
On June 30, 2021, counsel for the parties signed a Stipulation and
Agreement of Settlement to resolve all claims for $16 million.
The settlement amount will be funded by insurance proceeds and
consequently, the company recorded a short term liability and a
receivable for this amount in our condensed consolidated financial
statements.
Lead Plaintiff filed a motion seeking preliminary approval of the
settlement on July 15, 2021.
A hearing on that motion was held on October 21, 2021.
"At the hearing, the Court directed Lead Plaintiff to file an
amended motion seeking preliminary approval of the settlement by
November 1, 2021 and the Court indicated it will thereafter grant
preliminary approval of the settlement," the Company said.
The settlement is subject to notice to class members and final
approval by the Court.
Align Technology is a manufacturer of 3D digital scanners and the
Invisalign clear aligners used in orthodontics.
ALIGN TECH: Respondents' Appellate Brief Due Nov. 22
-----------------------------------------------------
The appeal from a court order that dismissed a securities class
action lawsuit is underway, according to Align Technology, Inc.
said in its Form 10-Q Report filed with the Securities and Exchange
Commission on November 2, 2021, for the quarterly period ended
September 30, 2021. Respondents' brief in opposition of the appeal
is due Nov. 22.
On March 2, 2020, a class action lawsuit against Align and two of
the Company's executive officers was filed in the U.S. District
Court for the Southern District of New York on behalf of a
purported class of purchasers of the Company's common stock. The
case was later transferred to the U.S. District Court for the
Northern District of California.
The complaint alleged claims under the federal securities laws and
sought monetary damages in an unspecified amount and costs and
expenses incurred in the litigation.
The lead plaintiff filed an amended complaint on August 4, 2020
against Align and three of the Company's executive officers
alleging similar claims as in the initial complaint on behalf of a
purported class of purchasers of the Company's common stock from
April 25, 2019 to July 24, 2019.
On March 29, 2021, defendants' motion to dismiss the amended
complaint was granted with leave for the lead plaintiff to file a
further amended complaint.
On April 22, 2021, lead plaintiff filed a notice stating it would
not file a further amended complaint.
On April 23, 2021, the Court dismissed the action with prejudice
and judgment was entered.
Lead plaintiff filed a notice of appeal on April 28, 2021 and filed
its opening appeal brief with the United States Court of Appeals
for the Ninth Circuit on September 1, 2021. Respondents' brief in
opposition is due November 22, 2021.
Align believes these claims are without merit and intends to
vigorously defend itself.
Align is currently unable to predict the outcome of this lawsuit
and therefore cannot determine the likelihood of loss nor estimate
a range of possible loss.
Align Technology is a manufacturer of 3D digital scanners and the
Invisalign clear aligners used in orthodontics.
ALLSTATE PROPERTY: Court Dismisses Trzeciak Suit With Prejudice
---------------------------------------------------------------
In the case, MARK TRZECIAK and JULIE TRZECIAK, Plaintiffs v.
ALLSTATE PROPERTY AND CASUALTY INSURANCE COMPANY, Defendant, Case
No. 21-10737 (E.D. Mich.), Judge David M. Lawson of the U.S.
District Court for the Eastern District of Michigan, Southern
Division, granted the Defendant's second motion to dismiss, and
denied as moot its first motion to dismiss.
Background
Plaintiffs Mark Trzeciak and Julie Trzeciak have filed an amended
complaint on behalf of a putative class suggesting that they do not
believe that they are at all in good hands with their insurer,
Allstate. They contend that Allstate breached their insurance
contract and committed silent fraud by overcharging premiums based
on non-risk factors that actually disadvantage longterm policy
holders. Allstate does not deny that, but it alleges in its motion
to dismiss that even when accepting all the allegations in the
amended complaint, the Plaintiffs have not stated a cognizable
claim.
Mark and Julie Trzeciak have been Allstate automobile insurance
policyholders since 2010. Beginning in 2014, Allstate changed the
way it calculated auto insurance policy premiums in Michigan by
launching a system known as price optimization. Price optimization
appears to be a method of assessing an existing policyholder's
tolerance for premium increases; it works to maximize how much an
insurer may charge a policyholder before that policyholder leaves
for another insurer. Allstate implemented price optimization, the
plaintiffs allege, by assigning policyholders to one of thousands
of "microsegments," then applying a Complimentary Group Rating
(CGR) factor that increases or decreases the premium a policyholder
otherwise would pay based on the other risk-related factors used to
calculate premiums.
The Plaintiffs allege that, to assign microsegments and CGRs,
Allstate applies a secret algorithm that determines how much of a
premium increase a policyholder will accept before refusing to
renew. More often than not, the result is higher premiums based on
criteria that are not disclosed to policyholders and have nothing
to do with risk. The Plaintiffs also allege that price optimization
is the last step in the process of calculating premiums, that it is
undiscernible to policyholders, that it results in few if any
policyholders being grouped into the same microsegment, and that
commonly it results in two similarly-situated policyholders paying
substantially different rates. It is especially common, the
Plaintiffs allege, for longtime policyholders like themselves to
pay more, because they are less price elastic than newer customers
even though they in general are less risky to insure.
The Plaintiffs allege that they paid higher premiums as a result of
Allstate's price optimization process. They say that Allstate
secretly assigned them a microsegment with a positive CGR factor
indicating their relatively low sensitivity to premium price
changes. And they allege that Allstate did not disclose to them
that it uses factors other than risk to determine their premiums
and that they would have no way of finding out what microsegment
and CGR Allstate has assigned them.
Unlike other states, Michigan does not bar price optimization
outright. Regulators have scrutinized the practice, however. The
Michigan Department of Insurance and Financial Services recently
sent an objection letter to Allstate asking about its pricing
practices, including whether policyholders with the same risk
profile could end up paying different rates. It also asked Allstate
in 2014 whether it was using price optimization in order to "raise
rates for policyholders it retains and reduce premiums for new
business."
In response, Allstate admitted to assigning microsegments and CGRs
"based on the following: Expected loss; Policyholder disruption,"
although, as the plaintiffs point out, Allstate did not also reveal
how it determines a policyholder's elasticity to higher premiums.
Allstate's 2014 Michigan rate filing memo disclosed that it had
implemented Complementary Group Rating plans, and that
policyholders are "assigned to a Complimentary Group based on
Policy disruption (quantified using a proprietary retention
model)." The memo further acknowledges that Allstate uses this
proprietary retention model "to quantify policyholder disruption
and, as a result, aid in factor selection," and that the retention
model includes variables like "Historical premium change" and
"Premium percentage change."
Although Allstate's public filings regarding price optimization in
Michigan are limited, the insurer has revealed information about
the model in other states. Data filed in Maryland show that
Allstate applied vastly different CGRs to customers with identical
risk profiles; this led Maryland to block Allstate's attempts to
use CGRs. Florida and Georgia also rejected Allstate's price
optimization system, and Allstate withdrew proposals to implement
it in Louisiana and Rhode Island after regulators raised questions
about the practice. The Plaintiffs allege that Allstate uses the
same system in Michigan as in Maryland but has obscured the details
here.
The Plaintiffs filed their complaint pleading claims of breach of
contract and fraudulent concealment and seeking to certify a class.
They also pleaded a claim for unjust enrichment, which they
subsequently withdrew. The Defendant responded in June with a
motion to dismiss under Federal Rule of Civil Procedure 12(b)(6).
The Plaintiffs filed an amended complaint that makes additional
allegations regarding the defendant's price optimization model, and
the Defendant responded with a motion to dismiss the amended
complaint. The Court heard oral argument on the motion on Oct. 26,
2021.
Discussion
A.
Count I of the amended complaint is labeled breach of contract, but
the Plaintiffs do not point to a specific contract term that
Allstate failed to honor. Instead, they base this count of their
amended complaint on a breach of an implied covenant of good faith
and fair dealing. The Plaintiffs contend that Allstate breached
this implied covenant by relying on non-risk-based factors to
calculate their insurance premiums.
Judge Lawson opines that finding a violation of the covenant of
good faith and fair dealing is difficult for another reason. The
allegations in the amended complaint clearly show that Allstate
established a premium, told the Plaintiffs what it was, and they
paid it. The Plaintiffs allege essentially that the amount charged
amounted to price gouging. But there can be no question that amount
of premium was an express term of their insurance contract. The
implied covenant of good faith and fair dealing does not adhere
"when the parties have 'unmistakably expressed their respective
rights,'" and the Court will not apply it "to override express
contract terms." Count I of the amended complaint does not state a
viable claim.
B.
The Plaintiffs also allege that Allstate is guilty of silent fraud
because it concealed the factors it used to set premium rates. The
elements of that tort mirror Michigan's common law fraudulent
concealment cause of action, which requires a plaintiff to plead
facts showing "(1) that defendant made a material representation;
(2) that it was false; (3) that when he made it he knew that it was
false, or made it recklessly, without any knowledge of its truth
and as a positive assertion; (4) that he made it with the intention
that it should be acted upon by plaintiff; (5) that plaintiff acted
in reliance upon it; and (6) that he thereby suffered injury."
However, for silent fraud, the plaintiff also must plead that there
was "a duty to disclose," and a failure to disclose.
Judge Lawson concludes that the Plaintiffs' silent fraud claim must
be dismissed. He finds that the Plaintiffs do not cite any
authority establishing that Allstate had a duty to disclose all the
factors it used to calculate insurance premiums. They failed to
establish that Allstate had a duty to disclose, whether because the
Plaintiffs made a specific inquiry or otherwise.
Even if Allstate had a duty to disclose all the factors it uses to
set premiums, Judge Lawson holds that the silent fraud count still
is inadequate. The enhanced pleading requirements of Federal Rule
of Civil Procedure 9(b) apply to claims like this. But the
Plaintiffs have not pleaded any facts to support their allegation
that Allstate omitted the non-risk-based factors with the intent to
defraud the Plaintiffs, as they must. The amended complaint is
conclusory and devoid of supporting facts regarding intent, and the
Plaintiffs' brief in opposition to the motion to dismiss does not
discuss intent at all. Because the pleading standard "demands more
than an unadorned, the-defendant-unlawfully-harmed-me accusation,"
a silent fraud claim fails as a matter of law if the Plaintiff
"puts forth no specific evidence that the Defendant intended to
defraud her." The Plaintiffs' silent fraud claim must be
dismissed.
C.
Allstate argues that the claims cannot proceed because the
Plaintiffs have failed to exhaust their administrative remedies,
the claims are barred by the filed rate doctrine, and the Michigan
Department of Insurance and Financial Services has primary
jurisdiction over their claims. Judge Lawson disagrees; none of
these defenses would upset the Plaintiffs' causes of action, if any
were viable. Allstate's argument that the filed-rate doctrine bars
the Plaintiffs' claims also fails. Although the Plaintiffs' claims
implicate elements of Allstate's filed rates -- Allstate's CGRs and
microsegments -- they do not challenge the elements of the rate
itself. The filed-rate doctrine therefore does not preclude the
Plaintiffs' claims.
Disposition
Although Allstate's defenses miss the mark, Judge Lawson holds that
the amended complaint itself does not state claims for which relief
can be granted. Accordingly, the Defendant's second motion to
dismiss is granted and its first motion to dismiss is denied as
moot. The amended complaint is dismissed with prejudice.
A full-text copy of the Court's Oct. 29, 2021 Opinion & Order is
available at https://tinyurl.com/559pxn78 from Leagle.com.
AMOREPACIFIC US: Redick Sues Over Non-Blind Friendly Website
------------------------------------------------------------
Crystal Redick, individually and on behalf of all others similarly
situated, Plaintiff, v. Amorepacific US, Inc. and Does 1 to 10,
inclusive, Defendants, Case No. 21-cv-08650 (C.D. Cal., November 2,
2021), seeks preliminary and permanent injunction, compensatory,
statutory and punitive damages and fines, prejudgment and
post-judgment interest, costs and expenses of this action together
with reasonable attorneys' and expert fees and such other and
further relief under the Americans with Disabilities Act and
California's Unruh Civil Rights Act.
Defendant's website, https://us.aritaum.com/ sells skincare
products such as cleansers, toners, softeners, emulsions, essences,
serums, moisturizers, eye care products, masks, and men's skincare
products, special care products such as anti-aging products, fine
line & wrinkle care, pore care products and vegan products, makeup
for the face, cheek, eyes, and lips, bath & body products such as
hair care products, body lotions, and hand creams and tools such as
beauty accessories and applicators. Redick is legally blind and
claims that said website cannot be accessed by the
visually-impaired. [BN]
Plaintiff is represented by:
Thiago Coelho, Esq.
Jasmine Behroozan, Esq.
Binyamin I. Manoucheri, Esq.
WILSHIRE LAW FIRM
3055 Wilshire Blvd., 12th Floor
Los Angeles, CA 90010
Tel: (213) 381-9988
Fax: (213) 381-9989
Email binyamin@wilshirelawfirm.com
thiago@wilshirelawfirm.com
jasmine@wilshirelawfirm.com
AQUESTIVE THERAPEUTICS: Bid to Dismiss NJ Securities Suit Underway
------------------------------------------------------------------
Aquestive Therapeutics, Inc. said in its Form 10-Q Report filed
with the Securities and Exchange Commission on September 30, 2021,
for the quarterly period ended November 1, 2021, that a motion
seeking dismissal of a securities class action lawsuit in New
Jersey court remains pending.
On March 1, 2021, a securities class action lawsuit was filed in
the United States District Court of the District of New Jersey
alleging that the Company and certain of its officers engaged in
violations of the federal securities laws relating to public
statements made by the Company regarding the FDA approval of
Libervant.
Following the court's appointment of a lead plaintiff, an amended
complaint was filed by the plaintiffs on July 25, 2021.
All dispositive motions were filed with the court on or before
November 1, 2021.
"There is no date set for a hearing on the motions to dismiss and
no trial date has yet been set," the Company said.
The Company is not able to determine or predict the ultimate
outcome of this proceeding or provide a reasonable estimate or
range of estimates of the possible outcome or loss, if any, in this
matter.
Aquestive Therapeutics, Inc. is a pharmaceutical company focused on
identifying, developing and commercializing differentiated products
which leverage its proprietary PharmFilm technology to meet
patients' unmet medical needs and solve patients' therapeutic
problems.
AR RESOURCES: Court Dismisses Fleming's Amended FDCPA Complaint
---------------------------------------------------------------
In the case, MARQUITA KNIGHT a.k.a. FLEMING, individually and on
behalf of all others similarly situated, Plaintiff v. AR RESOURCES,
INC., Defendant, Civil Action No. 20-cv-7495 (D.N.J.), Judge John
Michael Vazquez of the U.S. District Court for the District of New
Jersey granted the Defendant's motion to dismiss the Amended
Complaint.
Background
The putative class action involves alleged violations of the Fair
Debt Collection Practices Act (the "FDCPA"), 15 U.S.C. Section 1692
et seq. The Plaintiff allegedly incurred a financial obligation to
Union Emergency Med Assoc. Sometime before March 9, 2020, and Union
Emergency "contracted with" Defendant to collect the debt. On March
9, 2020, the Plaintiff received a debt collection letter from the
Defendant regarding the alleged debt. The Letter states as follows:
"Please be advised that our client is a credit reporting client.
Your credit report may have a negative impact if we do not hear
from you."
After receiving the Letter, the Plaintiff filed the putative class
action on June 19, 2020. She alleged that the Letter violated
Section 1692e of the FDCPA because the above statements imply that
both the Defendant and Union Emergency "will be credit reporting,
which is threatening and deceptive to the least sophisticated
consumer." The Plaintiff further asserted, in the alternative, that
the first statement is deceptive because it is not clear whether
either company will actually report to a credit reporting agency.
On July 29, 2020, the Defendant filed a motion to dismiss pursuant
to Federal Rule of Civil Procedure 12(b)(6).
On March 1, 2021, the Court dismissed the Plaintiff's Complaint
without prejudice, finding that "while the Letter could conceivably
have two different meanings, neither is inaccurate," because the
Complaint neither alleged an inaccuracy nor provided a reason that
Defendant or Union Emergency could not report Plaintiff's debt to a
credit reporting agency. It also rejected the Plaintiff's claim
that the Letter was false and misleading due to uncertainty as to
whether either entity would actually make a credit report because
the Plaintiff did not allege that the Defendant did not actually
intend to make a negative credit report or could not legally do so.
The Plaintiff was granted 30 days to file an amended complaint
curing the deficiencies noted in the Court's Opinion.
On March 30, 2021, the Plaintiff filed her Amended Complaint. The
Amended Complaint largely repeats the same allegations contained in
the initial Complaint. However, the Plaintiff adds allegations that
"it is unlawful for both the Defendant and Union Emergency to
report the same debt twice to the credit bureaus because it
deceptively implies that the consumer is liable for two separate
debts instead of one." The Plaintiff also alleges that "language in
the Letter threatening a negative credit report of the debt by
Union Emergency is deceptive because Union Emergency never had any
intention of following through with that threat." The Defendant
subsequently moved to dismiss the Amended Complaint for failure to
state a claim.
Discussion
In her Amended Complaint, the Plaintiff repeats her allegations
that the Letter violates Section 1692e3 by giving the impression
that both Defendant and Union Emergency will credit report the same
debt. Though the Plaintiff adds several new allegations in the
Amended Complaint, Judge Vazquez opines that she has not cured the
deficiencies noted in the Court's prior opinion. First, the
Plaintiff now claims that "it is unlawful for both the Defendant
and Union Emergency to report the same debt twice to the credit
bureaus because it deceptively implies that the consumer is liable
for two separate debts instead of one." However, consistent with
the Court's prior observations, it is not unlawful for two entities
to report the same debt.
In her opposition brief, the Plaintiff cites to cases that
purportedly demonstrate that double reporting the same debt
violates the FDCPA. As the Defendant notes, the Plaintiff's cited
cases are distinguishable from the present matter. In fact, Judge
Vazquez finds that one of the cases the Plaintiff relies upon
unequivocally states that debt collectors do not violate the FDCPA
when they report a debt that another entity has already reported
"so long as the second report does not mislead about whether it is
collecting the same debt as the previous reported debt."
Further, the Plaintiff does not provide any other reason why either
of the two possible readings of the Letter is inaccurate. Nor does
the Amended Complaint address the Court's prior finding that the
Plaintiff "failed to sufficiently allege that the distinction of
whom would make the report was material." Without sufficiently
alleging materiality, the Plaintiff cannot sustain a claim under
Section 1692e. Thus, the Plaintiff fails to sufficiently plead that
the Letter violates the FDCPA by implying that the Defendant or
Union Emergency may both report the same debt.
The Plaintiff also argues in her opposition brief that the Amended
Complaint "unequivocally states" that "neither the Defendant nor
its client, Union Emergency, ever had any intention of reporting
the Plaintiff's delinquent debt to the credit bureaus. However,
Judge Vazquez finds that the Amended Complaint contains no such
allegation, and the Plaintiff is cautioned as to making such a
blatant misstatement to the Court. Accordingly, this is not a
situation like in Schultz where "under no set of circumstances will
reporting ever occur." Because filing a credit report is an action
that "could come to pass," the challenged statement cannot be
viewed as false or misleading, even to the least sophisticated
debtor, and thus does not constitute a violation of Section 1692e.
Conclusion
The Defendant's motion to dismiss is granted. Given the Plaintiff's
inability to address the deficiencies noted in the Court's prior
opinion, Judge Vazquez has real concerns that any attempted
amendment would be futile. Nevertheless, the Plaintiff's Amended
Complaint is dismissed without prejudice. The Plaintiff will have
30 days to file a second amended complaint that cures the
deficiencies noted herein. If the Plaintiff does not file an
amended pleading within that time, the matter will be dismissed
with prejudice. An appropriate Order accompanies the Opinion.
A full-text copy of the Court's Oct. 29, 2021 Opinion is available
at https://tinyurl.com/dj7t35s from Leagle.com.
AT&T INC: Bugielski Appeals Summary Judgment in ERISA Class Suit
----------------------------------------------------------------
Plaintiffs Robert Bugielski, et al., filed an appeal from a court
ruling entered in the lawsuit entitled Julio C. Alas, et al.,
Plaintiffs, v. AT&T, Inc., et al., Defendants, Case No.
2:17-cv-08106-VAP-RAO, in the U.S. District Court for the Central
District of California, Los Angeles.
The lawsuit is brought pursuant to the Employee Retirement Income
Security Act against AT&T Inc. by nearly 250,000 retirement plan
members who claimed the telecommunications giant burdened its $35
billion retirement plan with excessive fees, finding the company
proved it monitored the plan expenses.
The Plaintiffs now seek a review of the Court's Order dated
September 28, 2021, granting Defendants' motion for summary
judgment and denying Plaintiff's motion for partial summary
judgment. The Court entered judgment in favor of Defendants and
against Plaintiffs on all claims.
The appellate case is captioned as Robert Bugielski, et al. v. AT
and T Services, Inc., et al., Case No. 21-56196, in the United
States Court of Appeals for the Ninth Circuit, filed on October 28,
2021.
The briefing schedule in the Appellate Case states that:
-- Appellants Robert J. Bugielski and Chad S. Simecek Mediation
Questionnaire was due on November 4, 2021;
-- Transcript shall be ordered by November 29, 2021;
-- Transcript is due on December 27, 2021;
-- Appellants Robert J. Bugielski and Chad S. Simecek opening
brief is due on February 4, 2022;
-- Appellees AT and T Benefit Plan Investment Committee and AT
and T Services, Inc. answering brief is due on March 7, 2022; and
-- Appellant's optional reply brief is due 21 days after service
of the answering brief.[BN]
Plaintiffs-Appellants ROBERT J. BUGIELSKI; and CHAD S. SIMECEK,
individually as participants in the AT and T Retirement Savings
Plan and as a representatives of all persons similarly situated,
are represented by:
James Bloom, Esq.
Jason H. Kim, Esq.
Todd M. Schneider, Esq.
SCHNEIDER WALLACE COTTRELL KONECKY, LLP
2000 Powell Street, Suite 1400
Emeryville, CA 94608
Telephone: (415) 421-7100
- and -
Todd Collins, Esq.
BERGER & MONTAGUE, P.C.
1622 Locust Street
Philadelphia, PA 19103
Telephone: (215) 875-3000
- and -
Eric Lechtzin, Esq.
EDELSON LECHTZIN LLP
3 Terry Drive, Suite 3600
Newtown, PA 18940
Telephone: (267) 408-8445
- and -
John J. Nestico, Esq.
SCHNEIDER WALLACE COTTRELL KONECKY LLP
6000 Fairview Road, Suite 1200
Charlotte, NC 28210
Telephone: (510) 740-2946
- and -
Shoham Joseph Solouki, Esq.
11820 Mayfield Avenue, Unit 318
Los Angeles, CA 90049
Telephone: (818) 943-5115
Defendants-Appellees AT AND T SERVICES, INC. and AT AND T BENEFIT
PLAN INVESTMENT COMMITTEE are represented by:
Richard Nowak, Esq.
Nancy G. Ross, Esq.
MAYER BROWN LLP
71 South Wacker Drive
Chicago, IL 60606-4637
Telephone: (312) 701-8809
BIODELIVERY SCIENCES: Remaining Bid to Dismiss Drachman Suit Denied
-------------------------------------------------------------------
In the case, THEODORE DRACHMAN and DIANA KNIGHT, derivatively on
behalf of BIODELIVERY SCIENCES INTERNATIONAL, INC., and
individually and on behalf of themselves and all other similarly
situated stockholders of BIODELIVERY SCIENCES INTERNATIONAL, INC.,
Plaintiffs v. HERM CUKIER, TODD C. DAVIS, PETER S. GREENLEAF, KEVIN
KOTLER, FRANCIS E. O'DONNELL JR., MARK A. SIRGO, and WILLIAM MARK
WATSON, Defendants, and BIODELIVERY SCIENCES INTERNATIONAL, INC., a
Delaware Corporation, Nominal Defendant, C.A. No. 2019-0728-LWW
(Del. Ch.), Judge Lori W. Will of the Court of Chancery of Delaware
denied the pending aspect of the Defendants' partial motion to
dismiss.
Background
The controversy in this case arises from BioDelivery's adoption of
two amendments to its certificate of incorporation. One amendment
declassified BioDelivery's board of directors over several years.
The second changed its director voting standards from plurality to
"majority of the votes cast." Neither amendment initially received
the number of stockholder votes necessary to pass under Section
242(b) of the Delaware General Corporation Law. Nonetheless,
BioDelivery's board deemed the proposals approved, filed a
corresponding certificate of amendment with the Delaware Secretary
of State, and proceeded as though the charter amendments were
valid.
The Plaintiffs made a pre-suit demand on the board informing them
of the error and, following BioDelivery's inaction and the board's
rejection of the demand, brought direct claims for breach of
fiduciary duty.
On Sept. 11, 2019, the Plaintiffs filed a class action complaint
against BioDelivery and its individual directors in the Court. The
complaint alleged violations of Section 242(b) and breaches of
fiduciary duty and requested a declaratory judgment on the validity
of the amendments. The complaint explained that neither proposal
had received the affirmative vote of a majority of the company's
outstanding common stock, as required by Section 242(b). It further
stated that the Board had "excluded broker non-votes" from the vote
tabulation "in direct contravention of Section 242 of the DGCL and
the representations in the Company's 2018 Proxy."
The Plaintiffs moved for summary judgment before the Defendants
responded to the complaint, and the Defendants subsequently filed a
joint opposition to the Plaintiffs' motion and a cross-motion to
dismiss. Both motions were denied by Chancellor Bouchard in April
2020.
In July 2020, BioDelivery's stockholders voted to approve the
ratification of the challenged amendments in accordance with 8 Del.
C. Section 204, mooting the Plaintiffs' claims for violations of
Section 242(b) and for a declaratory judgment. The Plaintiffs were
granted leave to file an amended complaint.
The operative Complaint was filed on Oct. 13, 2020 with the Demand
and Response attached as exhibits. It alleged both direct and
derivative claims for breach of fiduciary duty against BioDelivery
and its Board. The breach of fiduciary duty claims were brought on
five grounds: "(a) deeming the proposals approved in violation of
the DGCL, (b) filing the Amendments with the Delaware Secretary of
State, (c) implementing the Amendments, (d) refusing to take
appropriate action in response to the Demand, and (e) moving to
dismiss the action." Despite alleging that the Board refused the
Demand, the Complaint included a section called "Demand Futility
Allegations." The Complaint detailed the Demand and the Board's
rejection of that Demand in its Response.
The Defendants filed a partial motion to dismiss, arguing that
moving to dismiss the original complaint could not constitute a
breach of fiduciary duty, that BioDelivery was no longer a proper
defendant, and that the derivative claim -- except insofar as it
challenged the Board's response to the Demand -- should be
dismissed for failure to plead demand futility.
Oral argument on the partial motion to dismiss took place on June
17, 2021. Judge Will dismissed BioDelivery as a defendant and the
claims alleging that the Board members breached their fiduciary
duties by moving to dismiss this action. He took the portion of the
motion related to demand futility under advisement. Because neither
party addressed the wrongful refusal standard in their briefing
despite the Plaintiffs' Demand, Judge Will requested supplemental
briefing on the topic. Specifically, he asked that the parties
address "whether they agree that wrongful refusal is the relevant
framework for assessing the Plaintiffs' derivative claims; whether
the Complaint pleads wrongful refusal; and, assuming that wrongful
refusal applies and is asserted in the Complaint, whether the
Plaintiffs' derivative claim should be dismissed under Rule 23.1."
The parties submitted supplemental briefs on those issues.
Discussion
The Defendants' motion to dismiss briefing argued that the
derivative breach of fiduciary duty claims should be dismissed
(with one exception) for failure to plead demand futility. In their
supplemental briefing, the Defendants asserted that wrongful
refusal is the proper standard, that dismissal is appropriate
because the Plaintiffs lack derivative standing and, alternatively,
that the Complaint does not satisfy the heightened pleading
standard for wrongful refusal. The Plaintiffs' supplemental brief
also recognized wrongful refusal as the applicable standard but
contended that the Demand was refused in bad faith.
A. The Wrongful Refusal Standard Applies
To survive a motion to dismiss under Rule 23.1 where a demand has
been made and refused, a plaintiff must allege with particularity
facts raising a reasonable doubt that "(1) the board's decision to
deny the demand was consistent with its duty of care to act on an
informed basis, that is, was not grossly negligent; or (2) the
board acted in good faith, consistent with its duty of loyalty." In
either case, the plaintiff must climb a "steep road" to prevail.
In applying this standard, all reasonable inferences from the
allegations in the Complaint are drawn in favor of the Plaintiffs.
Judge Will finds that Rule 23.1 is not satisfied by conclusory
statements or mere notice pleading. Instead, what the pleader must
set forth are particularized factual statements that are essential
to the claim.
B. The Plaintiffs Maintain Derivative Standing
Derivative standing is a 'creature of equity' that was created to
enable a court of equity to exercise jurisdiction over corporate
claims asserted by stockholders 'to prevent a complete failure of
justice on behalf of the corporation.' Stockholders must show
adequacy, contemporaneous and continuous stock ownership, and
fulfill the demand requirement -- either by pleading demand
futility or wrongful refusal -- to have standing. Only the final
requirement is at issue. To determine whether wrongful refusal was
pleaded, Judge Will "looks to all the facts of the complaint and
determine for itself" what type of claims are alleged.
He finds that the Plaintiffs' "inartful drafting" caused confusion
about their purported basis for derivative standing. But the Court
must consider the complaint as a whole. The demand futility
allegations are isolated to a specific section of the Complaint.
But the Plaintiffs made wrongful refusal allegations throughout the
Complaint. The Complaint, which attaches a copy of the Demand and
Response as exhibits, states that the Board's refusal of the Demand
was "improper" and the product of "a patently results-driven
analysis" and describes the Board's Response as "indefensible on
its face" and "suggestive of bad faith." On balance, Judge Will
holds that these allegations demonstrate that the Plaintiffs
affirmatively pleaded wrongful refusal and did not waive that basis
for derivative standing.
C. The Plaintiffs Plead Wrongful Refusal with Sufficient
Particularity
The Defendants also argue that, if the Plaintiffs maintain
derivative standing, the Complaint should be dismissed because the
Plaintiffs have failed to plead wrongful refusal with
particularity, as Rule 23.1 requires. The Plaintiffs contend that
they have adequately pleaded that the Response constituted bad
faith. To demonstrate wrongful refusal based on bad faith, the
Plaintiffs must allege particularized facts from which the Court
could reasonably infer that the Board's refusal of the Demand was
not a valid exercise of its business judgment.
Judge Will finds that the Plaintiffs have satisfied Rule 23.1
through particularized allegations raising a reasonable doubt that
the Board acted in good faith in rebuffing the Demand. Drawing all
reasonable inferences in favor of the Plaintiffs, as he must at
this stage, he holds that the particularized allegations of the
Complaint raise a reasonable doubt that the Demand was refused in
good faith and satisfy Rule 23.1.
Conclusion
Judge Will concludes that the amended complaint satisfies the
heightened pleading standard of Court of Chancery Rule 23.1 and
supports a reasonable inference that the demand was wrongfully
refused. The Plaintiffs made a valid demand on the Board to correct
the violation of Section 242(b) but were rebuffed until the
amendments were ratified nearly a year later. The remainder of the
Defendants' partial motion to dismiss is, therefore, denied.
For the foregoing reasons, the pending aspect of the Defendants'
partial motion to dismiss is denied.
A full-text copy of the Court's Oct. 29, 2021 Memorandum Opinion is
available at https://tinyurl.com/3635dxpn from Leagle.com.
Brian E. Farnan -- bfarnan@farnanlaw.com -- and Michael J. Farnan
-- mfarnan@farnanlaw.com -- FARNAN LLP, in Wilmington, Delaware;
Steven J. Purcell, Douglas E. Julie, Robert H. Lefkowitz, and
Anisha Mirchandani, PURCELL JULIE & LEFKOWITZ LLP, in New York
City; Counsel for Plaintiffs Theodore Drachman and Diana Knight.
Blake Rohrbacher -- rohrbacher@rlf.com -- and Alexander M. Krischik
-- krischik@rlf.com -- RICHARDS, LAYTON & FINGER, P.A., in
Wilmington, Delaware; Caroline H. Bullerjahn, GOODWIN PROCTER LLP,
in Boston, Massachusetts; Counsel for Defendants Herm Cukier, Todd
C. Davis, Peter S. Greenleaf, Kevin Kotler, Francis E. O'Donnell,
Jr., Mark A. Sirgo, and William Mark Watson.
Peter B. Ladig -- pladig@bayardlaw.com -- and Brett M. McCartney --
bmccartney@bayardlaw.com -- BAYARD P.A., in Wilmington, Delaware;
Counsel for Nominal Defendant BioDelivery Sciences International,
Inc.
CASA SYSTEMS: Appeals over Dismissal of IPO Suits Still Pending
---------------------------------------------------------------
The appeals taken by the plaintiffs in the Shen-Baig and Hook
lawsuits against Casa Systems, Inc. from the order dismissing their
complaints remain pending, Casa Systems said in its Form 10-Q
Report filed with the Securities and Exchange Commission on
November 2, 2021, for the quarterly period ended September 30,
2021.
Shen-Baig Suit
On May 29, 2019, John Shen filed a putative shareholder class
action complaint in the Massachusetts Superior Court of Essex
County, John Shen v. Casa Systems, Inc, et al., Civil Action No.
1977CV00787, against the Company; certain of its current and former
executive officers and directors; Summit Partners, its largest
investor; and the underwriters from the Company's December 15,
2017, initial public offering, or IPO.
On July 3, 2019, Mirza R. Baig filed a similar putative shareholder
class action complaint in the Massachusetts Superior Court of Essex
County, Mirza R. Baig v. Casa Systems, Inc., Civil Action No.
1977CV00961, against the same defendants. The two matters were
subsequently consolidated and transferred to the Business
Litigation Session of the Massachusetts Superior Court, Suffolk
County, John Shen v. Casa Systems, Inc, et al., Civil Action No.
19-CV-03203-BLS2 and Mirza R. Baig v. Casa Systems, Inc., Civil
Action No. 19-CV-03204-BLS2.
The complaints, as later amended on November 12, 2019, purported to
be brought on behalf of all purchasers of Company common stock in
and/or traceable to the IPO. The complaints generally alleged that
(i) each of the defendants violated Section 11 and/or Section
12(a)(2) of the Securities Act of 1933, as amended, or the
Securities Act, because documents related to the IPO, including the
Company's registration statement and prospectus were materially
misleading by containing untrue statements of material fact and/or
omitting to state material facts necessary to make such statements
not misleading and (ii) the individual defendants and Summit
Partners acted as controlling persons within the meaning and in
violation of Section 15 of the Securities Act. Plaintiffs sought,
among other things, compensatory damages, costs and expenses,
including counsel and expert fees, rescission or a rescissory
measure of damages, and equitable and injunctive relief.
On January 12, 2021, the court granted motions to dismiss filed by
the defendants. On February 22, 2021, plaintiffs filed notice of
appeal.
Hook Suit
On August 9, 2019, Donald Hook filed a putative shareholder class
action lawsuit in the Supreme Court of the State of New York,
County of New York, Donald Hook, et al., v. Casa Systems, Inc. et
al., Index No. 654548/2019, against the defendants named in the
Shen and Baig matters.
The complaint, as later amended on November 22, 2019, purports to
be brought on behalf of all purchasers of the Company's common
stock in and/or traceable to the Company's IPO and generally
alleges that (i) each of the defendants violated Section 11 and/or
Section 12(a)(2) of the Securities Act because documents related to
the Company's IPO including its registration statement and
prospectus were materially misleading by containing untrue
statements of material fact and/or omitting to state material facts
necessary to make such statements not misleading and (ii) the
individual defendants and Summit Partners acted as controlling
persons within the meaning and in violation of Section 15 of the
Securities Act.
"Plaintiff sought, among other things, compensatory damages, costs
and expenses, including counsel and expert fees, rescission or a
rescissory measure of damages, disgorgement, and equitable and
injunctive relief," the Company said.
On August 30, 2021, the court granted motions to dismiss filed by
the defendants. On September 30, 2021, plaintiff filed notice of
appeal.
Panther Partners' Suit
On August 13, 2019, Panther Partners, Inc. filed a putative
shareholder class action lawsuit in the Supreme Court of the State
of New York, New York County, Panther Partners, Inc., et al., v.
Jerry Guo et al., Index No 654585/2019, against the Company,
certain of its current and former executive officers and directors,
and the underwriters from the Company's April 30, 2018 follow-on
offering of common stock, which the Company refer to as its
"Follow-on Offering."
The complaint, as later amended on November 22, 2019, purports to
be brought on behalf of all purchasers of the Company's common
stock in its Follow-on Offering and generally alleges that (i) each
of the defendants, other than Abraham Pucheril, violated Section 11
of the Securities Act, and each of the defendants violated Section
12(a)(2) of the Securities Act, because documents related to the
Company's Follow-on Offering, including its registration statement
and prospectus, were materially misleading by containing untrue
statements of material fact and/or omitting to state material facts
necessary to make such statements not misleading and (ii) the
individual defendants acted as controlling persons within the
meaning and in violation of Section 15 of the Securities Act.
Plaintiff sought, among other things, compensatory damages, costs
and expenses, including counsel and expert fees, rescission or a
rescissory measure of damages, and equitable and injunctive relief.
On October 4, 2021, the court granted motions to dismiss filed by
the defendants.
No amounts have been accrued for any of the putative class action
lawsuits referenced above as of September 30, 2021, as the Company
do not believe the likelihood of a material loss is probable.
Although the ultimate outcome of these matters cannot be predicted
with certainty, the resolution of any of these matters could have a
material impact on the Company's results of operations in the
period in which such matter is resolved.
Casa Systems, Inc. is a communications equipment company.
CBOE GLOBAL: Awaits 7th Cir. Ruling on Tomasulo Appeal
------------------------------------------------------
Cboe Global Markets, Inc. said in its Form 10-Q Report filed with
the Securities and Exchange Commission on October 29, 2021, for the
quarterly period ended September 30, 2021, that the parties are
currently awaiting a decision by the 7th Circuit on the appeal in
the class action suit related to the CBOE Volatility Index
methodology (VIX).
On March 20, 2018, a putative class action complaint captioned
Tomasulo v. Cboe Exchange, Inc., et al., No. 18-cv-02025 was filed
in federal district court for the Northern District of Illinois
alleging that the Company intentionally designed its products,
operated its platforms, and formulated the method for calculating
VIX and the Special Opening Quotation, (i.e., the special VIX value
designed by the Company and calculated on the settlement date of
VIX derivatives prior to the opening of trading), in a manner that
could be collusively manipulated by a group of entities named as
John Doe defendants.
A number of similar putative class actions, some of which do not
name the Company as a party, were filed in federal court in
Illinois and New York on behalf of investors in certain
volatility-related products.
On June 14, 2018, the Judicial Panel on Multidistrict Litigation
centralized the putative class actions in the federal district
court for the Northern District of Illinois.
On September 28, 2018, plaintiffs filed a master, consolidated
complaint that is a putative class action alleging various claims
against the Company and John Doe defendants in the federal district
court for the Northern District of Illinois.
The claims asserted against the Company consist of a Securities
Exchange Act fraud claim, three Commodity Exchange Act claims and a
state law negligence claim. Plaintiffs request a judgment awarding
class damages in an unspecified amount, as well as punitive or
exemplary damages in an unspecified amount, prejudgment interest,
costs including attorneys' and experts' fees and expenses and such
other relief as the court may deem just and proper.
On November 19, 2018, the Company filed a motion to dismiss the
master consolidated complaint and the plaintiffs filed their
response on January 7, 2019. The Company filed its reply on January
28, 2019. On May 29, 2019, the federal district court for the
Northern District of Illinois granted the Company's motion to
dismiss plaintiffs' entire complaint against the Company.
The state law negligence claim was dismissed with prejudice and the
other claims were dismissed without prejudice with leave to file an
amended complaint, which plaintiffs filed on July 19, 2019. On
August 28, 2019, the Company filed its second motion to dismiss the
amended consolidated complaint and plaintiffs filed their response
on October 8, 2019.
On January 27, 2020, the federal district court for the Northern
District of Illinois granted the Company's second motion to dismiss
and all counts against the Company were dismissed with prejudice.
On April 21, 2020, the federal district court for the Northern
District of Illinois granted plaintiffs' motion to certify the
January 27, 2020 dismissal order for an immediate appeal.
On May 19, 2020, plaintiffs filed a notice of appeal with the Court
of Appeals for the Seventh Circuit, seeking to appeal the April 21,
2020 order granting the entry of partial final judgment and both
orders granting the Company's motions to dismiss entered on May 29,
2019 and January 27, 2020.
On June 29, 2020, plaintiffs filed their opening brief with the 7th
Circuit, on August 28, 2020 the Company filed its opposition brief
with the 7th Circuit, on September 7, 2020, CME Group Inc.,
Intercontinental Exchange, Inc. and National Futures Association
filed an amici curiae brief in support of the Company on the Bad
Faith Standard with the 7th Circuit and on October 16, 2020,
plaintiffs filed their reply brief with the 7th Circuit.
Oral arguments were held remotely on November 30, 2020 and the
parties are currently awaiting a decision by the 7th Circuit.
The Company currently believes that the claims are without merit
and intends to litigate the matter vigorously. The Company is
unable to estimate what, if any, liability may result from this
litigation.
Cboe Global Markets, Inc., through its subsidiaries, operates as an
options exchange in the United States. It operates in five
segments: Options, U.S. Equities, Futures, European Equities, and
Global FX. Cboe Global Markets, Inc. was founded in 1973 and is
headquartered in Chicago, Illinois.
CENTRAL STATES: Melcher Slams Shady Grains Trading Contract
-----------------------------------------------------------
David Melcher, on behalf of himself and all others similarly
situated, Plaintiff, v. Central States Enterprises, LLC and Larry
Shepherd, Defendants, Case No. 21-cv-00409 (N.D. Ind., November 2,
2021), seeks damages for fraud by misrepresentation or omission of
material facts, and for enforcing contracts which constitute
fictitious sales of grain in violation of the Commodities Exchange
Act.
Central States is a grain elevator engaged in the business of
buying grain from farmers and then selling it to third party
buyers, commonly "hedging" these annual grain purchases through
futures trading on the Chicago Board of Trade to offset risks
associated with fluctuating grain prices. Shepherd is Central
States' principal grain buyer.
Melcher grows soybeans, corn and wheat on 8,500 acres of land in
New Haven, Indiana. He has been selling grain to Central States
since 1990.
Melcher alleges that Central States created and enforced contracts
requiring them to deliver quantities of grain far beyond their
annual growing capacities and required substantial payments to
Defendants to buy out the contracts and/or preventing them from
selling their grain at market pricing substantially higher than the
prices stated in the contracts. Said contracts are to cover
extensive grain delivery commitments and financial losses stemming
from Shepherd's speculative trading on the commodities futures
market. Melcher claims that the contracts were never authorized or
executed. [BN]
Plaintiff is represented by:
Richard E. Shevitz, Esq.
Scott D. Gilchrist, Esq.
Natalie A. Lyons, Esq.
COHEN & MALAD LLP
One Indiana Square, Suite 1400
Indianapolis, IN 46204
Telephone: (317) 636-6481
Fax: (317) 636-2593
Email: rshevitz@cohenandmalad.com
sgilchrist@cohenandmalad.com
nlyons@cohenandmalad.com
- and -
John J. Schwarz, II, Esq.
SCHWARZ LAW OFFICE, PC
310 North Chicago Street
P.O. Box 637
Royal Center, IN 46978
Telephone: (574) 643-9999
Fax: (574) 643-9994
Email: john@schwarzlawoffice.com
COLGATE-PALMOLIVE CO: Appeal in ERISA Related Class Suit Pending
----------------------------------------------------------------
Colgate-Palmolive Company said in its Form 10-Q Report filed with
the Securities and Exchange Commission on October 29, 2021, for the
quarterly period ended September 30, 2021, that the appeal made by
the company in the class action suit related to the Employee
Retirement Income Security Act (ERISA), is pending.
In June 2016, a putative class action claiming that residual
annuity payments made to certain participants in the
Colgate-Palmolive Company Employees' Retirement Income Plan did not
comply with the Employee Retirement Income Security Act was filed
against the Plan, the Company and certain individuals in the United
States District Court for the Southern District of New York.
The relief sought includes recalculation of benefits, pre- and
post-judgment interest and attorneys' fees.
This action was certified as a class action in July 2017. In July
2020, the Court granted in part and denied in part the Company
Defendants' motion for summary judgment and dismissed certain
claims on consent of the parties.
In August 2020, the Court granted the plaintiffs' motion for
summary judgment on the remaining claims.
The Company and the Plan are contesting this action vigorously and,
in September 2020, appealed to the United States Court of Appeals
for the Second Circuit.
No further updates were provided in the Company's SEC report.
Colgate-Palmolive Company, together with its subsidiaries,
manufactures and sells consumer products worldwide. The company
operates through two segments, Oral, Personal and Home Care; and
Pet Nutrition. Colgate-Palmolive Company was founded in 1806 and is
headquartered in New York, New York.
CONVERSE ELECTRIC: Jones' Class of Workers Conditionally Certified
------------------------------------------------------------------
In the case, LONNIE JONES, on behalf of himself and others
similarly situated, et al., Plaintiffs v. CONVERSE ELECTRIC, INC.,
Defendant, Case No. 21cv-1830 (S.D. Ohio), Judge Sarah D. Morrison
of the U.S. District Court for the Southern District of Ohio,
Eastern Division, granted the Plaintiff's Pre-Discovery Motion for
Conditional Certification and Court-Authorized Notice.
Background
Named Plaintiff Lonnie Jones brings the unpaid overtime suit
primarily as a collective action under the Fair Labor Standards Act
of 1938, 29 U.S.C. Sections 201, et seq., as amended ("FLSA"), and
as a Rule 23 class action under Ohio's wage and hour laws.
Converse employed Jones as a warehouse technician from March 2017
to January 2021. In that hourly position, Jones completed "shipping
and receiving of electrical equipment and materials," performed
"electrical work", and delivered parts to job sites. He alleges
that although he regularly worked more than 40 hours per week,
Converse underpaid him due to its willful failure to include a cell
phone reimbursement in his regular rate and to pay for him lunch
breaks. Jones is aware that other Converse employees were subject
to the same company-wide pay policies and practices. Jones supports
his allegations with his declaration, as well as the declarations
of Ted Geanis and David Giddens.
Mr. Geanis worked for Converse from September 2013 to March 2020 as
an hourly service electrician for the first four years and as a
salaried safety and training coordinator for the remainder. He
worked more than forty hours per week in both positions. During his
employment, he interacted with other hourly employees on a regular
basis. Those interactions gave him personal knowledge of Converse's
company-wide pay policies and procedures for lunch breaks. He
stated those policies and procedures resulted in hourly employees
being underpaid for work performed.
Mr. Giddens worked for Converse from 1990 until March 2021 as an
electrical superintendent. He performed electrical work on
commercial job sites. He, too, worked more than 40 hours a week. He
regularly communicated with fellow hourly employees. He said
Converse's company-wide cell-phone reimbursement and lunch break
pay policies and procedures yielded insufficient pay for hourly
employees.
Mr. Jones' April 2021 Complaint seeks collective and class
certification under federal and state wage laws. He also asserts
individual claims under the Family and Medical Leave Act ("FMLA"),
29 U.S.C. Section 2601 et seq., and Ohio Revised Code Chapter 4112,
et seq., for disability. Converse denies all claims.
The matter is before the Court for consideration of the Plaintiff's
Pre-Discovery Motion for Conditional Certification and
Court-Authorized Notice. Defendant Converse opposes the Motion, and
the Plaintiff has replied.
Discussion
A. Similarly Situated
Jones alleges Converse's pay policies and procedures involving cell
phones and lunch breaks violate the FLSA and parallel Ohio
statutes. He also alleges that those policies and procedures harmed
a collective class of Converse's employees.
Jones seeks Section 216(b) certification of the following class:
"All current and former hourly, non-exempt electricians/electrical
technicians, electrical superintendents, electrical foreman,
warehouse associates, and pre-fab employees of Defendant whose
payroll records reflect that they worked forty (40) or more hours
in any workweek during the three (3) years preceding the filing of
this Motion and continuing through the final disposition of this
case."
Judge Morrison determines that Jones sustains his modest burden of
establishing that he is similarly situated to the proposed
collective members. The following class is hereby conditionally
certified as a FLSA collective under Section 216(b): "All current
and former hourly, non-exempt electricians/electrical technicians,
electrical superintendents, electrical forem[e]n, warehouse
associates, and pre-fab employees of Defendant whose payroll
records reflect that they worked forty (40) or more hours in any
workweek during the three (3) years preceding the filing of this
Motion and continuing through the final disposition of this case."
B. Lookback Period
Converse urges the Court to apply a two-year limitation because
Jones fails to present "any evidence to suggest any willful
violation of the FLSA by Converse." Judge Morrison will not do so
because whether Converse's alleged FLSA violations are "willful" is
a question better suited for a later stage of the litigation, when
discovery has occurred. As such, she will apply a three-year
limitations period for purposes of notice.
C. Notice
1. Form
Jones seeks approval of his proposed Notice and Consent to Join
Form which are attached as an exhibit to his Motion. The Notice
contains basic information about the lawsuit, who may opt-in to the
lawsuit, and the timing and manner in which to do so. The Consent
Form states that the signatory consents to be a party plaintiff in
the collective action and agrees to be represented by the law firm
of Coffman Legal, LLC and Bryant Legal, LLC. The Consent Form also
specifies that the signatory understands that he or she will be
bound by any settlement reached or judgment entered in the matter.
Converse argues that the Notice improperly states that any Converse
employee who worked more than forty-hours a week is eligible to
participate.
Judge Morrison finds Jones's response persuasive. Including
Converse's language regarding underpayment serves only to inject
confusion into the minds of putative members as to their
eligibility when the FLSA's remedial purpose is designed to apply
to as many wronged workers as possible. And, many workers are
unaware that they are or were being underpaid. As to Converse's
knowledge argument, Judge Morrison determines such language would
have a similar chilling effect on participation while
simultaneously improperly invoking merits-based issues.
The Court previously approved FLSA notice language similar to that
proposed by Jones. Judge Morrison finds the proposed Notice to be
timely, accurate, and informative. The Notice and Consent to Join
Form are approved.
2. Methods of Delivery
Jones seeks to send the Notice and Consent Form to putative
collective members via U.S. mail and e-mail. Converse does not
object to those forms of delivery. Judge Morrison therefore directs
Jones to utilize both methods of distribution for the Notice and
Consent to Join Form.
D. Roster
Jones requests an order requiring Converse to produce an electronic
and importable roster of current and former employees fitting the
proposed class definition within 14 days of the Order to include
names, dates of employment, positions of employment, last known
mailing addresses, and last known e-mail addresses. Converse
neither objects to this request nor indicates that it is unable to
provide the requested information within fourteen days.
Accordingly, Judge Morrison orders Converse to produce the names,
dates of employment, positions of employment, last known mailing
addresses, and last known e-mail addresses of the putative class
members to the Plaintiffs' counsel in an electronic and importable
format within 14 days of the Order.
Conclusion
The Plaintiff's Motion for Conditional Certification and
Court-Authorized Notice is granted.
Judge Morrison conditionally certifies the following class: "All
current and former hourly, non-exempt electricians/electrical
technicians, electrical superintendents, electrical foremen,
warehouse associates, and pre-fab employees of Defendant whose
payroll records reflect that they worked forty (40) or more hours
in any workweek during the three (3) years preceding the filing of
this Motion and continuing through the final disposition of this
case."
Converse is ordered to provide the Plaintiffs' counsel, within 14
days of the Opinion & Order, a roster of all potential opt-in
plaintiffs that includes their names, dates of employment,
positions of employment, last known mailing addresses, and last
known e-mail addresses.
The Notice and Consent to Join Form will be sent to the potential
opt-in plaintiffs within fourteen days of receipt of the roster
using their home and e-mail addresses.
A full-text copy of the Court's Oct. 29, 2021 Opinion & Order is
available at https://tinyurl.com/jfjfzzs3 from Leagle.com.
CORCEPT THERAPEUTICS: Melucci Purported Class Suit Underway
-----------------------------------------------------------
Corcept Therapeutics Incorporated said in its Form 10-Q Report
filed with the Securities and Exchange Commission on November 3,
2021, for the quarterly period ended September 30, 2021, that the
company continues to defend a purported securities class action
suit entitled, Melucci v. Corcept Therapeutics Incorporated, et
al.
On March 14, 2019, a purported securities class action complaint
was filed in the U.S. District Court for the Northern District of
California by Nicholas Melucci (Melucci v. Corcept Therapeutics
Incorporated, et al., Case No. 5:19-cv-01372-LHK).
The complaint named the company and certain of its executive
officers as defendants asserting violations of Sections 10(b) and
20(a) of the Exchange Act and Rule 10b-5 promulgated thereunder and
alleges that the defendants made false and materially misleading
statements and failed to disclose adverse facts about the company's
business, operations, and prospects.
The complaint asserts a putative class period extending from August
2, 2017 to February 5, 2019 and seeks unspecified monetary relief,
interest and attorneys' fees. On October 7, 2019, the Court
appointed a lead plaintiff and lead counsel.
The lead plaintiff's consolidated complaint was filed on December
6, 2019.
The company moved to dismiss the consolidated complaint on January
27, 2020. Rather than oppose the company's motion to dismiss, on
March 20, 2020, the lead plaintiff withdrew its consolidated
complaint and filed a second amended complaint.
On May 11, 2020, the company moved to dismiss the second amended
complaint. On November 20, 2020, the Court granted the company's
motion to dismiss, while granting plaintiff leave to file a third
amended complaint, which plaintiff did on December 21, 2020.
On February 19, 2021, the company moved to dismiss this third
amended complaint. Plaintiff filed its opposition to the company's
motion on April 20, 2021 and the company filed its reply on June 4,
2021.
On August 24, 2021, the Court granted the company's motion in part,
but also denied it in part, which means certain of plaintiff's
claims may proceed to discovery.
Corcept said, "We will respond vigorously to plaintiff's claims
but cannot predict the outcome of this matter."
Corcept Therapeutics Incorporated discovers, develops, and
commercializes drugs for the treatment of severe metabolic,
oncologic, and psychiatric disorders in the United States. Corcept
Therapeutics Incorporated was founded in 1998 and is headquartered
in Menlo Park, California.
COSTCO WHOLESALE: Corker Class Cert Bid Filing Extended to Dec. 22
------------------------------------------------------------------
In the class action lawsuit captioned as BRUCE CORKER d/b/a sRANCHO
ALOHA; et al., v. COSTCO WHOLESALE CORPORATION, a Washington
corporation; et al., Case No. 2:19-cv-00290-RSL (W.D. Wash.), the
Hon. Judge Robert S. Lasnik entered an order granting Plaintiffs'
motion for extension of class certification deadline and crediting
their assertions that the requested relief is unopposed.
-- The Plaintiffs' deadline to file their motion for class
certification is extended to December 22, 2021.
-- Any response must be filed by January 24, 2022, and
Plaintiffs' reply must be filed by February 4, 2022.
-- The motion shall be noted on the Court's calendar for
consideration on February 4, 2022. Other case deadlines set
out in the operative scheduling order are unchanged by this
Order.
Costco is an American multinational corporation which operates a
chain of membership-only big-box retail stores.
A copy of the Court's order dated Nov. 5, 2021 is available from
PacerMonitor.com at https://bit.ly/3Ddywym at no extra charge.[CC]
CUMULUS MEDIA: Court Dismisses Class Suit Over 401(k) Plan
-----------------------------------------------------------
Cumulus Media Inc. said in its Form 10-Q Report filed with the
Securities and Exchange Commission on November 3, 2021, for the
quarterly period ended September 30, 2021, that the company's
motion to dismiss the putative class action suit related to 401(k)
Plan, has been granted.
On February 24, 2020, two individual plaintiffs filed a putative
class action lawsuit against the Company in the U.S. District Court
for the Northern District of Georgia alleging claims regarding the
Cumulus Media Inc. 401(k) Plan (the "Plan").
The case alleges that the Company breached its fiduciary duties
under the Employee Retirement Income Security Act of 1974 (ERISA)
in the oversight of the Plan, principally by selecting and
retaining certain investment options despite their higher fees and
costs than other available investment options, causing participants
in the Plan to pay excessive recordkeeping fees, and by failing to
monitor other fiduciaries.
The plaintiffs seek unspecified damages on behalf of a class of
Plan participants from February 24, 2014 through the date of any
judgment.
On May 28, 2020, the Company filed a motion to dismiss the
complaint. On December 17, 2020 the Court entered an order
dismissing one of the individual plaintiffs and all claims against
the Company except those that arose on or after February 24, 2019
(i.e., one year prior to the filing of the Complaint).
On March 24, 2021, the Company filed a motion seeking dismissal of
all remaining claims. On October 15, 2021, the Court entered an
order granting the Company's motion and dismissing all remaining
claims.
Plaintiffs have certain appeal rights under federal law with
respect to the October 15, 2021 order.
The Company intends to vigorously defend itself in any such appeal.
The October 15, 2021 order may not foreclose other parties from
asserting similar claims against the Company. The Company is
currently unable to reasonably estimate what effect the ultimate
outcome might have, if any, on its financial position, results of
operations or cash flows.
Cumulus Media Inc., an audio-first media and entertainment company,
owns and operates radio stations in the United States. It operates
through two segments, Cumulus Radio Station Group and Westwood One.
The company offers content through approximately 428
owned-and-operated stations in 87 United States media markets; and
approximately 8,000 broadcast radio stations affiliates and various
digital channels. Cumulus Media Inc. was incorporated in 2018 and
is based in Atlanta, Georgia.
DAVID RUDOVSKY: Pennsylvania Court Tosses Graham's Suit v. Attys.
-----------------------------------------------------------------
In the case, ROLAND GRAHAM a/k/a RONALD GRAHAM, Plaintiff v. DAVID
RUDOVSKY, et al., Defendants, Civil Action No. 21-2759 (E.D. Pa.),
Judge Wendy Beetlestone of the U.S. District Court for the Eastern
District of Pennsylvania dismissed with prejudice the Plaintiff's
complaint.
Background
Roland Graham, also known as Ronald Graham, a prisoner currently
incarcerated at the Philadelphia Industrial Correctional Center
("PICC"), filed the action alleging that the Defendant attorneys
failed to protect him from abuse by prison staff. Graham brings the
putative class action for "Ineffectiveness of Counsel" under the
Sixth Amendment against one law firm, and three attorneys who
allegedly work at "PILP." He alleges that the Defendants have not
taken sufficient action to prevent and enjoin abuses allegedly
perpetrated by Philadelphia Department of Prisons staff.
Specifically, the Complaint asserts that the Defendants represent a
putative class of prisoners in Remick v. City of Philadelphia, and
that "the class is protesting the mis-management and poor
leadership" of the Defendants, who "breached their duty by not
knowing how to professionally restrain prison staff abusement of
prison rights."
For example, Graham alleges that the "Medical Dept at PICC" has not
properly quarantined prisoners with COVID-19, and has falsely
accused healthy prisoners, including the Plaintiff, of having
COVID-19. Graham contends that the Defendants witnessed "a serious
demonstration pertaining to the COVID-19 virus and other abusement"
but "did nothing," acting with "deliberate indifference toward our
safety," and that the Defendants did not adequately perform
"screening and "investigation" to ensure prisoners with COVID-19
are quarantined.
For each putative class member, Graham seeks compensatory damages
of $500,000 and punitive damages of $400,000.
Discussion
Judge Beetlestone notes that Graham is attempting to bring a claim
for the violation of his right to effective assistance of counsel
under the Sixth Amendment. The vehicle by which federal
constitutional claims may be brought in federal court is Section
1983 of Title 42 of the United States Code. To state a claim under
Section 1983, Graham must allege that a person acting under color
of state law violated his constitutional rights. This "acting under
color of state law" requirement is also called the "state action"
requirement. Private conduct may be deemed "state action" if there
is "such a close nexus between the State and the challenged action
that seemingly private behavior may be fairly treated as that of
the State itself."
Mr. Graham cannot maintain his federal constitutional claim because
private attorneys and law firms carrying out their typical work as
lawyers are not state actors, and Graham has not alleged any facts
suggesting that the required "close nexus" between Defendants'
private actions and the State, Judge Beetlestone holds. The
Complaint must also be dismissed because Graham cannot bring a
class action. Although pro se litigants who are not lawyers may
represent themselves, they may not pursue claims on behalf of
others, including a class of other inmates. Accordingly, the case
cannot proceed as a potential class action.
To the extent Graham is bringing a claim for legal malpractice,
such claim also fails, Judge Beetlestone finds. She says, in
Pennsylvania, "an aggrieved client must establish three elements in
order to recover for legal malpractice: (1) the employment of the
attorney or other basis for duty; (2) the failure of the attorney
to exercise ordinary skill and knowledge; and (3) that such
negligence was the proximate cause of damage to the plaintiff."
Graham appears to allege that the Defendants are his lawyers
because they represent the putative prisoner class in Remick. This
argument is mistaken. Under federal law, there is no
attorney-client relationship between unnamed class members and the
attorneys bringing the class action. Graham cannot bring a legal
malpractice suit because he has no attorney-client relationship
with Defendants and has not alleged any other basis for their
alleged duty to protect him.
Conclusion
For the foregoing reasons, Judge Beetlestone dismissed Graham's
Complaint with prejudice pursuant to 28 U.S.C. Section
1915(e)(2)(B)(ii) for failure to state a claim. Graham will not be
given leave to amend because amendment would be futile. An
appropriate Order follows.
A full-text copy of the Court's Oct. 29, 2021 Memorandum is
available at https://tinyurl.com/y5r6b8kf from Leagle.com.
DAVITA INC: Bid to Junk Consolidated Class Suit in Illinois Pending
-------------------------------------------------------------------
DaVita Inc. said in its Form 10-Q Report filed with the Securities
and Exchange Commission on October 28, 2021, for the quarterly
period ended September 30, 2021, that the company's motion to
dismiss the consolidated class action suit entitled, In re
Outpatient Medical Center Employee Antitrust Litigation, is
pending.
On July 14, 2021, an indictment was returned by a grand jury in the
U.S. District Court, District of Colorado against the Company and
its former chief executive officer in the matter of U.S. v. DaVita
Inc., et al.
The two count indictment alleges that purported agreements entered
into by its former chief executive officer not to solicit
senior-level employees violate Section 1 of the Sherman Act.
On September 14, 2021, DaVita and its former chief executive
officer filed a motion to dismiss the indictment.
On July 16, 2021, a former DaVita employee filed a putative class
action complaint in the matter of Pena v. Surgical Care Affiliates,
LLC, et al. in the U.S. District Court, Northern District of
Illinois based on the allegations in the matter of U.S. v. DaVita
Inc., et al.
On August 6, 2021, the plaintiff in the Pena case filed a notice of
voluntary dismissal and the court dismissed the complaint on August
9, 2021.
On August 9, 2021, DaVita was named as defendant in a consolidated
class action complaint in the matter of In re Outpatient Medical
Center Employee Antitrust Litigation in the U.S. District Court,
Northern District of Illinois.
This class action complaint seeks to bring an action on behalf of
certain groups of individuals employed by the Company between
February 1, 2012 and January 5, 2021.
On October 18, 2021, the Company filed a motion to dismiss the
class action complaint.
DaVita said, "The Company disputes the allegations in the
indictment and the class action complaint, as well as the asserted
violations of the Sherman Act, and intends to defend these actions
accordingly."
DaVita Inc. provides kidney dialysis services for patients
suffering from chronic kidney failure or end stage renal disease
(ESRD). The company operates kidney dialysis centers and provides
related lab services in outpatient dialysis centers. The company
was formerly known as DaVita HealthCare Partners Inc. and changed
its name to DaVita Inc. in September 2016. DaVita Inc. was founded
in 1994 and is headquartered in Denver, Colorado.
DAVITA INC: Peace Officers' Suit Dismissed with Prejudice
---------------------------------------------------------
DaVita Inc. said in its Form 10-Q Report filed with the Securities
and Exchange Commission on October 28, 2021, for the quarterly
period ended September 30, 2021, that the court in the putative
class action suit initiated by Peace Officers' Annuity and Benefit
Fund of Georgia, entered final judgment and dismissed all claims in
the action with prejudice.
On February 1, 2017, the Peace Officers' Annuity and Benefit Fund
of Georgia filed a putative federal securities class action
complaint in the U.S. District Court for the District of Colorado
against the Company and certain executives.
The complaint covers the time period of August 2015 to October 2016
and alleges, generally, that the Company and its executives
violated federal securities laws concerning the Company's financial
results and revenue derived from patients who received charitable
premium assistance from an industry-funded non-profit organization.
The complaint further alleges that the process by which patients
obtained commercial insurance and received charitable premium
assistance was improper and "created a false impression of DaVita's
business and operational status and future growth prospects."
While the Company continues to dispute the allegations, it reached
an agreement to resolve this matter without admitting to any
liability. Settlement of this matter was covered primarily with
insurance proceeds.
The Company contributed an amount that did not have a material
impact on the Company's consolidated financial position, results of
operations or cash flows. On April 13, 2021, the court granted
final approval of the settlement.
On August 9, 2021, the court entered final judgment and dismissed
all claims in the action with prejudice.
DaVita Inc. provides kidney dialysis services for patients
suffering from chronic kidney failure or end stage renal disease
(ESRD). The company operates kidney dialysis centers and provides
related lab services in outpatient dialysis centers. The company
was formerly known as DaVita HealthCare Partners Inc. and changed
its name to DaVita Inc. in September 2016. DaVita Inc. was founded
in 1994 and is headquartered in Denver, Colorado.
ESPERION THERAPEUTICS: $18MM Accord Wins Court Approval
-------------------------------------------------------
Esperion Therapeutics, Inc. said in its Form 10-Q Report filed with
the Securities and Exchange Commission on September 30, 2021, for
the quarterly period ended November 1, 2021, that a Michigan court
has approved an $18.25 million deal to resolve a stockholder class
action lawsuit. Insurers contributed $5 million to the deal.
On January 12, 2016, a purported stockholder of the Company filed a
putative class action lawsuit in the United States District Court
for the Eastern District of Michigan, against the Company and Tim
Mayleben, captioned Kevin L. Dougherty v. Esperion Therapeutics,
Inc., et al. (No. 16-cv-10089).
The lawsuit alleges that the Company and Mr. Mayleben violated
Sections 10(b) and 20(a) of the Securities Exchange Act of 1934 and
SEC Rule 10b-5 by allegedly failing to disclose in an August 17,
2015, public statement that the FDA would require a cardiovascular
outcomes trial before approving the Company's lead product
candidate.
The lawsuit seeks, among other things, compensatory damages in
connection with an allegedly inflated stock price between August
18, 2015, and September 28, 2015, as well as attorneys' fees and
costs.
On May 20, 2016, an amended complaint was filed in the lawsuit and
on July 5, 2016, the Company filed a motion to dismiss the amended
complaint.
On December 27, 2016, the court granted the Company's motion to
dismiss with prejudice and entered judgment in the Company's favor.
On January 24, 2017, the plaintiffs in this lawsuit filed a motion
to alter or amend the judgment. In May 2017, the court denied the
plaintiff's motion to alter or amend the judgment.
In May 2017, the court denied the plaintiff's motion to alter or
amend the judgment.
On June 19, 2017, the plaintiffs filed a notice of appeal to the
Sixth Circuit Court of Appeals and on September 14, 2017, they
filed their opening brief in support of the appeal.
The appeal was fully briefed on December 7, 2017, and it was argued
before the Sixth Circuit on March 15, 2018. On September 27, 2018,
the Sixth Circuit issued an opinion in which it reversed the
district court's dismissal and remanded for further proceedings.
On October 11, 2018, the Company filed a petition for rehearing en
banc and, on October 23, 2018, the Sixth Circuit Court of Appeals
directed plaintiffs to respond to that petition.
On December 3, 2018, the Sixth Circuit denied the Company's
petition for en banc rehearing, and on December 11, 2018, the case
was returned to the federal district court by mandate from the
Sixth Circuit.
On December 26, 2018, the Company filed an answer to the amended
complaint, and on March 28, 2019, the Company filed its amended
answer to the amended complaint.
On September 15, 2020, the Company filed a motion for summary
judgment, and the plaintiffs filed a motion for partial summary
judgment, and on October 23, 2020, the parties filed oppositions to
both motions for summary judgment. On November 20, 2020, the
Company and plaintiffs filed replies in support of their respective
motions.
"On March 12, 2021, the parties agreed to a settlement in principle
of the securities class action, and on April 26, 2021, the parties
entered into a stipulation of settlement to resolve all legal
claims, in which defendants expressly deny that they have committed
any act or omission giving rise to any liability under Section
10(b) of the Securities Exchange Act of 1934," the Company said.
Under the terms of the stipulation of settlement, which the court
approved on August 24, 2021, the Company and certain of the
Company's insurance carriers caused a payment of $18.25 million to
be made to the plaintiff class.
As a result of this settlement agreement, during the three months
ended March 31, 2021, the Company recorded a loss on settlement of
$13.25 million in selling, general, and administrative expenses on
the condensed statement of operations, which represents the
litigation settlement of $18.25 million offset by $5.0 million in
insurance claim proceeds from the Company's insurance carriers.
Esperion Therapeutics, Inc. is a public American pharmaceutical
company focused on the development of bempedoic acid, an orally
available small molecule designed to lower elevated levels of
LDL-C.
EXACT SCIENCES: Genomic Health Investor's Suit Dismissed
--------------------------------------------------------
A class action lawsuit by a former stockholder of Genomic Health
has been dismissed, Exact Sciences Corporation said in its Form
10-Q Report filed with the Securities and Exchange Commission on
November 2, 2021, for the quarterly period ended September 30,
2021.
In connection with the Company's combination with Genomic Health,
on June 22, 2020, Suzanne Flannery, a purported former stockholder
of Genomic Health, filed a Verified Individual and Class Action
Complaint in the Delaware Court of Chancery, captioned Flannery v.
Genomic Health, Inc., et al., C.A. No. 2020-0492. Flannery amended
her complaint on November 23, 2020.
"The amended complaint asserts individual and class action claims,
including: (i) a violation of 8 Del. C. § 203 by Genomic Health,
Exact Sciences and a purported controlling group of former Genomic
Health stockholders; (ii) conversion by Genomic Health, Exact
Sciences and Spring Acquisition Corp.; (iii) breach of fiduciary
duty by Genomic Health's former directors; (iv) breach of fiduciary
duty by the purported controlling group; and (v) aiding and
abetting breach of fiduciary duty against Exact Sciences, Spring
Acquisition and Goldman Sachs & Co. LLC, Genomic Health's financial
advisor in the combination," the Company said.
The amended complaint seeks, among other things, declaratory
relief, unspecified monetary damages and attorneys' fees and costs.
All defendants moved to dismiss the amended complaint.
Oral argument on defendants' motions to dismiss the amended
complaint occurred in May 2021, and in September 2021 the case was
officially dismissed by the court.
Exact Sciences Corp. is a molecular diagnostics company
specializing in the detection of early stage cancers.
FANNIE MAE: Continues to Defend Suits Over Stock Purchase Deals
---------------------------------------------------------------
Federal National Mortgage Association (Fannie Mae) said in its Form
10-Q Report filed with the Securities and Exchange Commission on
October 29, 2021, for the quarterly period ended September 30,
2021, that the company continues to defend itself in lawsuits,
including a consolidated class action, related to Senior Preferred
Stock Purchase Agreements.
A consolidated class action ("In re Fannie Mae/Freddie Mac Senior
Preferred Stock Purchase Agreement Class Action Litigations") and
two non-class action lawsuits, Arrowood Indemnity Company v. Fannie
Mae and Fairholme Funds v. FHFA, filed by Fannie Mae and Freddie
Mac shareholders against the company, Federal Housing Finance
Agency (FHFA) as the company's conservator, and Freddie Mac are
pending in the U.S. District Court for the District of Columbia.
The lawsuits challenge the August 2012 amendment to each company's
senior preferred stock purchase agreement with Treasury.
Plaintiffs filed amended complaints in all three lawsuits on
November 1, 2017 alleging that the net worth sweep dividend
provisions of the senior preferred stock that were implemented
pursuant to the August 2012 amendments nullified certain of the
shareholders' rights, particularly the right to receive dividends.
Plaintiffs seek unspecified damages, equitable and injunctive
relief, and costs and expenses, including attorneys' fees.
Plaintiffs in the class action seek to represent several classes of
preferred and/or common shareholders of Fannie Mae and/or Freddie
Mac who held stock as of the public announcement of the August 2012
amendments.
On September 28, 2018, the court dismissed all of the plaintiffs'
claims except for their claims for breach of an implied covenant of
good faith and fair dealing.
Fannie Mae said, "Given the stage of these lawsuits, the
substantial and novel legal questions that remain, and our
substantial defenses, we are currently unable to estimate the
reasonably possible loss or range of loss arising from this
litigation."
Federal National Mortgage Association provides liquidity and
stability support services for the mortgage market in the United
States. The Company was founded in 1938 and is based in Washington,
the District of Columbia.
FLEX LIMITED: Dismissal of Class Suit in California Under Appeal
----------------------------------------------------------------
Flex Ltd. said in its Form 10-Q Report filed with the Securities
and Exchange Commission on October 29, 2021, for the quarterly
period ended October 1, 2021, that the appeal on the order of
dismissal in the putative class action suit filed before the
Northern District of California, is pending.
On May 8, 2018, a putative class action was filed in the Northern
District of California against the Company and certain officers
alleging violations of Sections 10(b) and 20(a) of the Securities
Exchange Act of 1934, and Rule 10b-5, promulgated thereunder,
alleging misstatements and/or omissions in certain of the Company's
financial results, press releases and Securities and Exchange
Commission (SEC) filings made during the putative class period of
January 26, 2017 through April 26, 2018.
On October 1, 2018, the Court appointed lead plaintiff and lead
plaintiff's counsel in the case. On November 28, 2018, lead
plaintiff filed an amended complaint alleging misstatements and/or
omissions in certain of the Company's SEC filings, press releases,
earnings calls, and analyst and investor conferences and expanding
the putative class period through October 25, 2018.
On April 3, 2019, the Court vacated its prior order appointing lead
plaintiff and lead plaintiff's counsel and reopened the lead
plaintiff appointment process. On September 26, 2019, the Court
appointed a new lead plaintiff, National Elevator Industry Pension
Fund, and lead plaintiff's counsel in the case. On November 8,
2019, lead plaintiff filed a further amended complaint.
On December 4, 2019, defendants filed a motion to dismiss the
amended complaint. On May 29, 2020, the Court granted defendants'
motion to dismiss without prejudice and gave lead plaintiff 30 days
to amend. On June 29, 2020, lead plaintiff filed a further amended
complaint. On July 27, 2020, defendants filed a motion to dismiss
the amended complaint. On December 10, 2020, the Court granted
defendants' motion to dismiss with prejudice and entered judgment
in favor of defendants.
On January 7, 2021, lead plaintiff filed a notice of appeal to the
Ninth Circuit Court of Appeals. On May 19, 2021, lead plaintiff
filed its opening appeal brief, on July 19, 2021, defendants filed
their answering brief, and on September 8, 2021, lead plaintiff
filed its reply brief. The Court of Appeals has scheduled oral
argument for December 8, 2021.
Flex said, "Any existing or future lawsuits could be
time-consuming, result in significant expense and divert the
attention and resources of our management and other key employees,
as well as harm our reputation, business, financial condition or
results of operations."
Flex Ltd. provides design, engineering, manufacturing, and supply
chain services and solutions to original equipment manufacturers
worldwide. It operates through High-Reliability Solutions,
Industrial and Emerging Industries, Communications & Enterprise
Compute, and Consumer Technologies Group segments. The company was
formerly known as Flextronics International Ltd. and changed its
name to Flex Ltd. in September 2016. Flex Ltd. was founded in 1990
and is based in Singapore.
FREDDIE MAC: Discovery Ongoing in Senior Preferred Stock Litigation
-------------------------------------------------------------------
Federal Home Loan Mortgage Corporation said in its Form 10-Q Report
filed with the Securities and Exchange Commission on October 29,
2021, for the quarterly period ended September 30, 2021, that
discovery is ongoing in the class action suit entitled, In re
Fannie Mae/Freddie Mac Senior Preferred Stock Purchase Agreement
Class Action suit.
This case is the result of the consolidation of three putative
class action lawsuits: Cacciapelle and Bareiss vs. Federal National
Mortgage Association, Federal Home Loan Mortgage Corporation and
Federal Housing Finance Agency (FHFA), filed on July 29, 2013;
American European Insurance Company vs. Federal National Mortgage
Association, Federal Home Loan Mortgage Corporation and FHFA, filed
on July 30, 2013; and Marneu Holdings, Co. vs. FHFA, Treasury,
Federal National Mortgage Association and Federal Home Loan
Mortgage Corporation, filed on September 18, 2013. (The Marneu case
was also filed as a shareholder derivative lawsuit.)
A consolidated amended complaint was filed in December 2013. In the
consolidated amended complaint, plaintiffs alleged, among other
items, that the August 2012 amendment to the Purchase Agreement
breached Freddie Mac's and Fannie Mae's respective contracts with
the holders of junior preferred stock and common stock and the
covenant of good faith and fair dealing inherent in such contracts.
Plaintiffs sought unspecified damages, equitable and injunctive
relief, and costs and expenses, including attorney and expert
fees.
The Cacciapelle and American European Insurance Company lawsuits
were filed purportedly on behalf of a class of purchasers of junior
preferred stock issued by Freddie Mac or Fannie Mae who held stock
prior to, and as of, August 17, 2012.
The Marneu lawsuit was filed purportedly on behalf of a class of
purchasers of junior preferred stock and purchasers of common stock
issued by Freddie Mac or Fannie Mae over a not-yet-defined period
of time.
Arrowood Indemnity Company vs. Federal National Mortgage
Association, Federal Home Loan Mortgage Corporation, FHFA, and
Treasury. This case was filed on September 20, 2013. The
allegations and demands made by plaintiffs in this case were
generally similar to those made by the plaintiffs in the In re
Fannie Mae/Freddie Mac Senior Preferred Stock Purchase Agreement
Class Action Litigations case described above.
Plaintiffs in the Arrowood lawsuit also requested that, if
injunctive relief were not granted, the Arrowood plaintiffs be
awarded damages against the defendants in an amount to be
determined including, but not limited to, the aggregate par value
of their junior preferred stock, the total of which they stated to
be approximately $42 million.
American European Insurance Company, Cacciapelle, and Miller vs.
Treasury and FHFA. This case was filed as a shareholder derivative
lawsuit, purportedly on behalf of Freddie Mac as a nominal
defendant, on July 30, 2014.
The complaint alleged that, through the August 2012 amendment to
the Purchase Agreement, Treasury and FHFA breached their respective
fiduciary duties to Freddie Mac, causing Freddie Mac to suffer
damages. The plaintiffs asked that Freddie Mac be awarded
compensatory damages and disgorgement, as well as attorneys' fees,
costs, and other expenses.
FHFA, joined by Freddie Mac and Fannie Mae, moved to dismiss the In
re Fannie Mae/Freddie Mac Senior Preferred Stock Purchase Agreement
Class Action Litigations case and the other related cases in
January 2014. Treasury filed a motion to dismiss the same day.
In September 2014, the District Court granted the motions and
dismissed the plaintiffs' claims. All plaintiffs appealed that
decision, and on February 21, 2017, the U.S. Court of Appeals for
the District of Columbia Circuit affirmed in part and remanded in
part the decision granting the motions to dismiss.
The DC Circuit affirmed dismissal of all claims except certain
claims seeking monetary damages for breach of contract and breach
of implied duty of good faith and fair dealing. In March 2017,
certain institutional and class plaintiffs filed petitions for
panel rehearing with respect to certain claims.
On July 17, 2017, the DC Circuit granted the petitions for
rehearing and issued a modified decision, which permitted the
institutional plaintiffs to pursue the breach of contract and
breach of implied duty of good faith and fair dealing claims that
had been remanded.
The DC Circuit also removed language related to the standard to be
applied to the implied duty claims, leaving that issue for the
District Court to determine on remand.
On October 16, 2017, certain institutional and class plaintiffs
filed petitions for a writ of certiorari in the U.S. Supreme Court
challenging whether the prohibition in the Housing and Economic
Recovery Act (HERA) on injunctive relief against FHFA bars judicial
review of the net worth sweep dividend provisions of the August
2012 amendment to the Purchase Agreement, as well as whether HERA
bars shareholders from pursuing derivative litigation where they
allege the conservator faces a conflict of interest. The Supreme
Court denied the petitions on February 20, 2018.
On November 1, 2017, certain institutional and class plaintiffs and
plaintiffs in another case in which Freddie Mac was not originally
a defendant, Fairholme Funds, Inc. v. FHFA, Treasury, and Federal
National Mortgage Association, filed proposed amended complaints in
the District Court.
Each of the proposed amended complaints names Freddie Mac as a
defendant for breach of contract and breach of the covenant of good
faith and fair dealing claims as well as for new claims alleging
breach of fiduciary duty and breach of Virginia corporate law. On
January 10, 2018, FHFA, Freddie Mac, and Fannie Mae moved to
dismiss the amended complaints.
On September 28, 2018, the District Court dismissed all of the
claims except those alleging breach of the implied covenant of good
faith and fair dealing.
Discovery is ongoing.
Federal Home Loan Mortgage Corporation, known as Freddie Mac, is a
public government sponsored enterprise, headquartered in Tysons
Corner, Virginia. Freddie Mac is ranked No. 38 on the 2018 Fortune
500 list of the largest United States corporations by total
revenue. The company is based in McLean, Virginia.
FREDDIE MAC: Seeks Dismissal of Appeal on Denial of Class Cert. Bid
-------------------------------------------------------------------
Federal Home Loan Mortgage Corporation said in its Form 10-Q Report
filed with the Securities and Exchange Commission on October 29,
2021, for the quarterly period ended September 30, 2021, that the
company's motion to dismiss the appeal in the putative securities
class action suit entitled, Ohio Public Employees Retirement System
vs. Freddie Mac, Syron, Et Al., is pending.
This putative securities class action lawsuit was filed against
Freddie Mac and certain former officers on January 18, 2008 in the
U.S. District Court for the Northern District of Ohio purportedly
on behalf of a class of purchasers of Freddie Mac stock from August
1, 2006 through November 20, 2007.
Federal Housing Finance Agency (FHFA) later intervened as
Conservator, and the plaintiff amended its complaint on several
occasions.
The plaintiff alleged, among other things, that the defendants
violated federal securities laws by making false and misleading
statements concerning our business, risk management, and the
procedures we put into place to protect the company from problems
in the mortgage industry.
The plaintiff seeks unspecified damages and interest, and
reasonable costs and expenses, including attorney and expert fees.
In October 2013, defendants filed motions to dismiss the complaint.
In October 2014, the District Court granted defendants' motions and
dismissed the case in its entirety against all defendants, with
prejudice.
In November 2014, plaintiff filed a notice of appeal in the U.S.
Court of Appeals for the Sixth Circuit. On July 20, 2016, the Sixth
Circuit reversed the District Court's dismissal and remanded the
case to the District Court for further proceedings.
On August 14, 2018, the District Court denied the plaintiff's
motion for class certification. On January 23, 2019, the Sixth
Circuit denied plaintiff's petition for leave to appeal that
decision. On September 17, 2020, the District Court granted a
request from the plaintiff for summary judgment and entered final
judgment in favor of Freddie Mac and the other defendants. On
October 9, 2020, the plaintiff filed a notice of appeal with the
Sixth Circuit. On January 27, 2021, Freddie Mac filed a motion to
dismiss the appeal.
Freddie Mac said, "At present, it is not possible for us to predict
the probable outcome of this lawsuit or any potential effect on our
business, financial condition, liquidity, or results of operations.
In addition, we are unable to reasonably estimate the possible loss
or range of possible loss in the event of an adverse judgment in
the foregoing matter due to the following factors, among others:
the inherent uncertainty of the appellate process, and the inherent
uncertainty of pre-trial litigation in the event the case is
ultimately remanded to the District Court in whole or in part. In
particular, while the District Court denied plaintiff's motion for
class certification, this decision and the entry of final judgment
in defendants' favor have been appealed. Absent a final resolution
of whether a class will be certified, the identification of a class
if one is certified, and the identification of the alleged
statement or statements that survive dispositive motions, we cannot
reasonably estimate any possible loss or range of possible loss."
Federal Home Loan Mortgage Corporation, known as Freddie Mac, is a
public government sponsored enterprise, headquartered in Tysons
Corner, Virginia. Freddie Mac is ranked No. 38 on the 2018 Fortune
500 list of the largest United States corporations by total
revenue. The company is based in McLean, Virginia.
GRANITE CONSTRUCTION: Final Fairness Hearing Set for Feb. 24, 2022
------------------------------------------------------------------
Granite Construction Incorporated said in its Form 10-Q Report
filed with the Securities and Exchange Commission on October 28,
2021, for the quarterly period ended September 30, 2021, that the
final settlement fairness hearing in Police Retirement System of
St. Louis v. Granite Construction Incorporated, et. al., is
scheduled for February 24, 2022.
On August 13, 2019, a securities class action was filed in the
United States District Court for the Northern District of
California against the Company, James H. Roberts, the company's
former President and Chief Executive Officer, and Jigisha Desai,
the company's former Senior Vice President and Chief Financial
Officer and current Executive Vice President and Chief Strategy
Officer.
An amended complaint was filed on February 20, 2020 that, among
other things, added Laurel Krzeminski, the company's former Chief
Financial Officer, as a defendant.
The amended complaint is brought on behalf of an alleged class of
persons or entities that acquired the company's common stock
between April 30, 2018 and October 24, 2019, and alleges claims
arising under Sections 10(b) and 20(a) of the Securities Exchange
Act of 1934 and Rule 10b-5 thereunder. After the filing of the
amended complaint, this case was re-titled Police Retirement System
of St. Louis v. Granite Construction Incorporated, et. al.
The amended complaint seeks damages based on allegations that the
defendants made false and/or misleading statements and failed to
disclose material adverse facts in the Company's SEC filings about
its business, operations and prospects.
On May 20, 2020, the court denied, in part, our motion to dismiss
the amended complaint. On January 21, 2021, the court granted
plaintiff's motion for class certification.
On October 23, 2019, a putative class action lawsuit, titled
Nasseri v. Granite Construction Incorporated, et. al., was filed in
the Superior Court of California, County of Santa Cruz against the
Company, James H. Roberts, the company's former President and Chief
Executive Officer, Laurel Krzeminski, the company's former Chief
Financial Officer, and the then-serving Board of Directors on
behalf of persons who acquired shares of Company common stock in
the Company's June 2018 merger with Layne.
The complaint asserts causes of action under the Securities Act of
1933 and alleges that the registration statement and prospectus
were negligently prepared and included materially false and
misleading statements and failed to disclose facts required to be
disclosed.
On August 10, 2020, the court sustained the company's demurrer
dismissing the complaint with leave to amend. On September 16,
2020, the plaintiff filed an amended complaint. The company filed a
demurrer seeking to dismiss the amended complaint. On April 9,
2021, the court entered an order overruling the company's demurrer
seeking to dismiss the amended complaint.
On May 14, 2021, the plaintiff filed a motion for class
certification. The hearing on the motion has been continued to
March 25, 2022 in light of the settlement proceedings in Police
Retirement System of St. Louis v. Granite Construction
Incorporated, et al.
On April 29, 2021, the company entered into a stipulation of
settlement (the "Settlement Agreement") to settle Police Retirement
System of St. Louis v. Granite Construction Incorporated, et al.
The Settlement Agreement also settles claims alleged in Nasseri v.
Granite Construction Incorporated, et al. The settlement is subject
to court approval.
Under the Settlement Agreement, the Company will pay or cause to be
paid a total of $129.0 million in cash, $63.0 million of which it
expects to be paid through insurance proceeds. The payment will be
paid to a settlement fund that will be used to pay all settlement
fees and expenses, attorneys' fees and expenses, and cash payments
to members of the settlement class.
The settlement class has agreed to release the company, the other
defendants named in the lawsuits and certain of their respective
related parties from any and all claims, rights, causes of action,
liabilities, actions, suits, damages or demands of any kind
whatsoever, that relate in any way to the purchase, acquisition,
holding, sale or disposition of our common stock during the period
between February 17, 2017 and October 24, 2019 that arose out of or
are based upon or related to the facts alleged or the claims or
allegations set forth in Police Retirement System of St. Louis v.
Granite Construction Incorporated, et al. or relate in any way to
any alleged violation of the Securities Act of 1933, the Securities
Exchange Act of 1934, or any other state, federal or foreign
jurisdiction's securities or other laws, any alleged misstatement,
omission or disclosure (including in financial statements) or other
alleged securities-related wrongdoing or misconduct, including all
claims alleged in Nasseri v. Granite Construction Incorporated, et
al. The Settlement Agreement contains no admission of liability,
wrongdoing or responsibility by any of the parties.
On April 30, 2021, the class representative in Police Retirement
System of St. Louis v. Granite Construction Incorporated, et al.
filed a motion for preliminary approval of the settlement.
The plaintiff in Nasseri v. Granite Construction Incorporated, et
al. has been permitted to intervene, although the court has denied
his application to be appointed as additional lead plaintiff.
On October 6, 2021, the court issued an order granting preliminary
approval of the settlement.
Pursuant to the terms of the Settlement Agreement, payment was made
to the settlement fund after preliminary approval in October 2021.
Members of the settlement class will now be provided notice of, and
an opportunity to object to, the settlement at a fairness hearing
to be held by the court to determine whether the settlement should
be finally approved and whether the proposed order and final
judgment should be entered.
The fairness hearing is scheduled for February 24, 2022.
Granite said, "If the court approves the settlement, including the
payment and release described above, and enters such order and
final judgment, and such judgment is no longer subject to further
appeal or other review, the settlement fund will be disbursed in
accordance with a plan of allocation approved by the court and the
release will be effective to all members of the settlement class.
Granite Construction Incorporated is one of the largest diversified
infrastructure companies in the United States, engaged in
heavy-civil infrastructure projects including the construction of
streets, roads, highways, mass transit facilities, airport
infrastructure, bridges, trenchless and underground utilities,
power-related facilities, water-related facilities, well drilling,
utilities, tunnels, dams and other infrastructure-related projects,
site preparation, mining services, and infrastructure services for
residential development, energy development, commercial and
industrial sites, and other facilities, as well as construction
management professional services. The company had four reportable
business segments: Transportation, Water, Specialty and Materials.
The company is based in Watsonville, California.
GRUMA CORP: Orozco Appeals Arbitration Ruling in Labor Class Suit
-----------------------------------------------------------------
Plaintiff Norma Orozco filed an appeal from a court ruling entered
in the lawsuit entitled NORMA OROZCO, Plaintiff v. GRUMA
CORPORATION, Defendant, Case No. 1:20-cv-01293-DAD-EPG, in the U.S.
District Court for the Eastern District of California.
Plaintiff Orozco filed two separate putative class action lawsuits
in Fresno County Superior Court against her former employer,
defendant Gruma. The Defendant subsequently removed both actions to
the federal district court. In the first action, the Plaintiff had
filed a complaint on June 15, 2020, alleging that the Defendant
violated various provisions of the California Labor Code with
regard to the payment of wages, and she sought recovery of civil
penalties under the Private Attorneys General Act, California Labor
Code Sections 2698, et seq., ("PAGA") -- Orozco v. Gruma Corp.,
1:20-cv-1290-AWI-EPG, Doc. No. 1 at 20, (E.D. Cal. Sept. 10, 2020)
("Orozco I").
A few days later, on June 19, 2020, the Plaintiff filed a complaint
initiating the second action, alleging state law claims for
retaliation, wrongful termination, sex discrimination, hostile work
environment, and failure to prevent discrimination and retaliation
in violation of California's Fair Employment and Housing Act,
California Government Code Section 12940, ("FEHA"). Upon removal to
the Court, Orozco I was assigned to Senior District Judge Anthony
W. Ishii, and the second action -- the case ("Orozco II") -- was
assigned to Judge Drozd.
On Sept. 14, 2020, shortly after removal and before any motions
were filed, the Defendant filed a notice of related cases on the
dockets in both Orozco I and Orozco II. The filing of the notice
was overlooked and the Court did not issue an order relating and
reassigning Orozco I and Orozco II to the same district judge.
In both cases, the Defendant filed a motion to compel arbitration
and to dismiss the action, based upon the same facts (e.g., the
arbitration agreement the Plaintiff had signed) and presenting the
same legal arguments regarding the validity and enforceability of
that arbitration agreement.
As reported in the Class Action Reporter on November 2, 2021, Judge
Dale A. Drozd granted the Defendant's motion to compel arbitration
and to dismiss the action.
The Plaintiff is taking an appeal from this ruling in her appellate
case captioned as Norma Orozco v. Gruma Corporation, Case No.
21-16824, in the United States Court of Appeals for the Ninth
Circuit, filed on October 29, 2021.
The briefing schedule in the Appellate Case states that:
-- Appellant Norma Orozco Mediation Questionnaire was due on
November 5, 2021;
-- Appellant Norma Orozco opening brief is due on December 27,
2021;
-- Appellee Gruma Corporation answering brief is due on January
25, 2022; and
-- Appellant's optional reply brief is due 21 days after service
of the answering brief.[BN]
Plaintiff-Appellant NORMA OROZCO, individually, on behalf of all
others similarly situated, and as a representative of other
aggrieved employees, is represented by:
Jacob George, Esq.
MATHEW & GEORGE
500 S. Grand Avenue, Suite 1490
Los Angeles, CA 90071
Telephone: (310) 478-4349
E-mail: jacob@mathewandgeorge.com
- and -
Sang J. Park, Esq.
PARK, APC
5670 Wilshire Boulevard, Suite 1800
Los Angeles, CA 90036
Telephone: (310) 709-4805
E-mail: sang@park-lawyers.com
Defendant-Appellee GRUMA CORPORATION, a Nevada corporation, is
represented by:
Corey Cabral, Esq.
CDF LABOR LAW LLP
900 University Avenue, Suite 200
Sacramento, CA 95825
Telephone: (916) 361-0991
E-mail: ccabral@cdflaborlaw.com
HEALTH CARE SERVICE: Terry Appeals Judgment in Insurance Suit
-------------------------------------------------------------
Plaintiff Christina Terry filed an appeal from a court ruling
entered in the lawsuit entitled CHRISTINA TERRY, individually and
on behalf of her minor child, G.T., and on behalf of all other
similarly situated, Plaintiffs v. HEALTH CARE SERVICE CORPORATION,
a mutual legal reserve Company, d/b/a BLUE CROSS AND BLUE SHIELD OF
OKLAHOMA, BCBSOK, Defendant, Case No. 5:18-cv-00415, in the United
States District Court for the Western District of Oklahoma.
According to the complaint, in January 2014, Christina Terry gave
birth to a son, G. Terry, in Elk City, Oklahoma. There were
complications, and the child's survival was in doubt. The doctor in
the small, local hospital told Terry that her son needed to be
transported to a more capable facility in Oklahoma City but might
not survive the long ambulance ride. The doctor thus recommended a
helicopter transfer. The child was transferred via helicopter on
January 14, 2014, and ultimately survived. Terry's health insurance
provider was Defendant Health Care Service Corporation, doing
business as Blue Cross and Blue Shield of Oklahoma.
The air ambulance service, Rocky Mountain Holdings, was not a
participating provider in Blue Cross/Blue Shield's network for air
ambulance services in Oklahoma. The air ambulance service invoiced
$49,999.00 for the transfer, but Blue Cross/Blue Shield paid only
$2,909.92, denying payment for the remaining $45,149.14, says the
suit.
Terry, individually and on behalf of the minor child, G.T., filed
suit on April 27, 2018, claiming entitlement to full reimbursement
of the invoiced amount. The dispute in this case revolves around
the alleged denial of coverage, specifically, whether Terry's
policy obligated Blue Cross/Blue Shield to fully pay the claim.
On September 28, 2021, having determined that Plaintiffs' claims
are untimely and must be dismissed, the Court expressed no opinion
on the merits of Plaintiffs' claims, and granted the Defendant's
motion for summary judgment.
Terry seeks a review of this ruling in an appellate case captioned
as Terry et al. v. Health Care Service Corporation, Case No.
21-6141, in the United States Court of Appeals for the Tenth
Circuit, filed on October 28, 2021.[BN]
Plaintiff-Appellant CHRISTINA TERRY, individually and on behalf of
her minor child, G.T., and on behalf of all other similarly
situated, is represented by:
Michael T. Torrone, Esq.
Ryan H. Olsen, Esq.
C. Austin Ervin, Esq.
LOGAN & LOWRY, LLP
101 South Wilson Street P.O. Box 558
Vinita, OK 74301
Telephone: (918) 256-7511
Facsimile: (918) 256-3187
E-mail: mtorrone@loganlowry.com
rolsen@loganlowry.com
aervin@loganlowry.com
ILLINOIS STATE UNIVERSITY: Moylan Appeals Fee Refund Suit Dismissal
-------------------------------------------------------------------
Plaintiff Jack Moylan, et al., filed an appeal from a court ruling
entered in the lawsuit entitled BAILEY THIELE and JACK MOYLAN,
individually, and on behalf of all others similarly situated v.
ILLINOIS STATE UNIVERSITY BOARD OF TRUSTEES, et al., Case No.
1:20-cv-01197-JES-TSH, in the U.S. District Court for the Central
District of Illinois.
As reported in the Class Action Reporter on June 12, 2020, the
lawsuit is brought on behalf of all people, who paid mandatory fees
for the Spring 2020 academic semester at Illinois State University
and who, because of ISUBOT's response and policies relating to the
COVID-19 pandemic, lost the benefits of the education and
experiential services for which their mandatory fees were paid,
without having those fees and costs adequately refunded to them.
The Plaintiffs contend that the Defendants had refused to provide
proper reimbursement for the portion fees that fund the educational
services, which the Defendant no longer provided as of March 7,
2020. The Plaintiffs add that the Defendants had provided
inadequate and/or arbitrary reimbursement for mandatory student
fees that fund on-campus activities and services that the Defendant
is no longer providing, which does not fully compensate their and
members of the Class for their losses.
As a result, the Defendants' actions have financially damaged the
Plaintiffs and the Class Members, the Plaintiffs allege. The
Plaintiffs brought the action because they did not receive the full
value of the services paid, and they have lost the benefit of their
bargain and/or suffered out-of-pocket loss.
The Plaintiffs now seek a review of the Court' Order and Judgment
dated September 30, 2021, granting Defendants' motion to dismiss
the case.
The appellate case is captioned as Jack Moylan, et al. v. Board of
Trustees of Illinois State University, et al., Case No. 21-3017, in
the US Court of Appeals for the Seventh Circuit, filed on October
29, 2021.
The briefing schedule in the Appellate Case states that:
-- Transcript information sheet was due on November 12, 2021;
and
-- Appellant's brief is due on or before December 8, 2021 for
Jack Moylan and Bailey Thiele.[BN]
Plaintiffs-Appellants JACK MOYLAN and BAILEY THIELE, individually
and on behalf of others similarly situated, are represented by:
Ryan F. Stephan, Esq.
STEPHAN ZOURAS, LLP
100 N. Riverside Plaza
Chicago, IL 60606
Telephone: (312) 233-1550
E-mail: rstephan@stephanzouras.com
Defendants-Appellees BOARD OF TRUSTEES OF ILLINOIS STATE
UNIVERSITY; LARRY DIETZ, Individually and in his capacity as the
President of Illinois State University; and JULIE A. JONES,
Chairperson of the Board of Trustees of Illinois State University,
are represented by:
Gregory E. Ostfeld, Esq.
GREENBERG TRAURIG, LLP
77 W. Wacker Drive
Chicago, IL 60601-0000
Telephone: (312) 456-8400
E-mail: ostfeldg@gtlaw.com
INDIA GLOBALIZATION: Deal Reached in Tchatchou Consolidated Suit
----------------------------------------------------------------
India Globalization Capital, Inc. said in its Form 10-Q Report
filed with the Securities and Exchange Commission on October 29,
2021, for the quarterly period ended September 30, 2021, that a
preliminary agreement in principle to settle all pending
shareholder litigation against the company, in the consolidated
suit entitled, Tchatchou v. India Globalization Capital, Inc., et
al., Civil Action No. 8:18-cv-03396, has been reached.
On November 2, 2018, IGC shareholder Alde-Binet Tchatchou
instituted a shareholder class action complaint (Tchatchou v. India
Globalization Capital, Inc., et al., Civil Action No. 8:18-cv-03396
(U.S. District Court for the District of Maryland)), on behalf of
himself and all others similarly situated in the United States
District Court for the District of Maryland.
On May 13, 2019, the plaintiff filed an amended complaint against
IGC, Ram Mukunda, and Claudia Grimaldi,. The plaintiff alleges that
the Class Action Defendants violated Section 10(b) of the Exchange
Act, SEC Rule 10b-5, and Section 20(a) of the Exchange Act and made
false and misleading statements to the public by issuing a
September 25, 2018, press release entitled "IGC to Enter the
Hemp/CBD-Infused Energy Drink Space" and related disclosures, in
which IGC announced it had "executed a distribution and partnership
agreement" for the sugar-free energy drink named Nitro G, as well
as through related public statements. The plaintiff has not
publicly disclosed the amount of damages they seek.
On February 28, 2019, all pending shareholder class actions were
consolidated, and the Tchatchou litigation was designated as the
lead case. Throughout the Tchatchou litigation, the Class Action
Defendants have denied any and all liability and denied any
violation of the law.
On November 2, 2018, IGC shareholder Gabe Harris-Carr instituted a
shareholder class action complaint (Harris-Carr v. India
Globalization Capital, Inc., et al., Civil Action No. 8:18-cv-03408
(U.S. District Court for the District of Maryland)) on behalf of
himself and all others similarly situated in the United States
District Court for the District of Maryland. IGC, Ram Mukunda, and
Claudia Grimaldi were named as defendants.
On February 28, 2019, all pending shareholder class actions,
including the Harris-Carr litigation, were consolidated, and the
Tchatchou litigation, described above, was designated as the lead
case.
On May 13, 2019, the plaintiff in the Tchatchou litigation filed an
amended complaint, which becomes the operative complaint for the
consolidated matter and supersedes the Harris-Carr complaint.
Throughout the Harris-Carr litigation, the Class Action Defendants
have denied any and all liability and denied any violation of the
law.
On April 6, 2021, the plaintiffs and the Class Action Defendants
reached a preliminary agreement in principle to settle all pending
shareholder litigation, including the Tchatchou and Harris-Carr
matters described above. The settlement is subject to the agreement
and execution of formal settlement documentation and approval by
the United States District Court for the District of Maryland.
India Globalization said, "At present, a significant portion of the
settlement is expected to be paid by the Company's insurance
policy. The Company and the Class Action Defendants are represented
by counsel in the litigation."
India Globalization Capital, Inc. engages in the development and
commercialization of cannabis-based therapies to treat Alzheimer's,
pain, nausea, eating disorders, several endpoints of Parkinson's,
and epilepsy in humans, dogs, and cats. The company operates
through two segments, Legacy Infrastructure and Medical
Cannabis-Based Alternative Therapies. The company was founded in
2005 and is based in Bethesda, Maryland.
JAVITCH BLOCK: Appeals Ruling in Redman Consumer Credit Suit
------------------------------------------------------------
Defendant Javitch Block, LLC filed an appeal from a court ruling
entered in the lawsuit entitled Jerome Redman, individually and on
behalf of all others similarly situated v. Javitch Block, LLC, Case
No. 3:21-cv-00037-GMG, in the United States District Court for the
Northern District of West Virginia at Martinsburg.
As reported in the Class Action Reporter on March 10, 2021, the
lawsuit was removed from the Circuit Court of Berkeley County, West
Virginia, to the U.S. District Court for Northern District of West
Virginia on March 5, 2021.
The lawsuit is brought over alleged consumer credit violations.
The appellate case is captioned as Jerome Redman v. Javitch Block,
LLC, Case No. 21-2236, in the United States Court of Appeals for
the Fourth Circuit, filed on November 3, 2021.
The briefing schedule in the Appellate Case states that:
-- Opening Brief and Appendix is due on December 13, 2021;
-- Response Brief is due on November 12, 2022.[BN]
Defendant-Appellant JAVITCH BLOCK, LLC is represented by:
Tyler Grant Lansden, Esq.
JAVITCH BLOCK, LLC
1100 Superior Avenue
Cleveland, OH 44114
Telephone: (216) 408-6729
E-mail: tlansden@jbllc.com
Plaintiff-Appellee JEROME REDMAN, Individually and on behalf of all
others similarly situated, is represented by:
Stephen Gibson Skinner, Esq.
SKINNER LAW FIRM
P. O. Box 487
Charles Town, WV 25414
Telephone: (304) 725-7029
E-mail: sskinner@skinnerfirm.com
JIANPU TECHNOLOGY: Agreement in Principle Reached in Panther Suit
-----------------------------------------------------------------
Jianpu Technology Inc. said in its Form 20-F report filed with the
U.S. Securities and Exchange Commission on October 29, 2021, for
the fiscal year ended December 31, 2020, that an agreement in
principle has been reached in the putative class action suit
entitled, Panther Partners Inc., v. Jianpu Technology Inc. et al.
On October 25, 2018, a putative securities class action was filed
against the company, certain of its directors and officers, and
others in the U.S. District Court for the Southern District of New
York: Panther Partners Inc., v. Jianpu Technology Inc. et al. (Case
No. 18-cv-09848).
The plaintiffs in the case allege, in sum and substance, that
certain disclosures and statements made by our company in
connection with our initial public offering contained material
misstatements and omissions in violation of the Securities Act of
1933.
On September 27, 2020, the Court denied the defendants' motion to
dismiss.
By letter dated August 21, 2021, the parties notified the court
that they have reached an agreement-in-principle to settle this
action, subject to, among other items, definitive documentation and
the Court's approval.
Jianpu said, "There is no guarantee that the Court will approve the
settlement. If the settlement fails and the litigation continues,
we are unable to estimate the possible loss or possible range of
loss, if any, associated with the resolution of this lawsuit. We
expect the settlement amount, subject to approval by the Court and
the insurers' assessment, to be covered by directors and officers
liability insurance."
Jianpu Technology Inc. operates a platform that provides online
discovery and recommendation services for financial products in the
People's Republic of China. The company operates its platform under
the Rong360 brand name. Jianpu Technology Inc. was founded in 2011
and is headquartered in Beijing, China.
JIANPU TECHNOLOGY: Bid to Junk Guttentag Suit Pending
-----------------------------------------------------
Jianpu Technology Inc. said in its Form 20-F report filed with the
U.S. Securities and Exchange Commission on October 29, 2021, for
the fiscal year ended December 31, 2020, that the company's motion
to dismiss filed in Guttentag v. Jianpu Technology Inc. et al., is
pending.
On February 17, 2021, a putative securities class action was filed
against the company and certain of its officers in the U.S.
District Court for the Southern District of New York: Guttentag v.
Jianpu Technology Inc. et al. (Case No. 21-cv-01419).
The plaintiffs in the case allege, in sum and substance, that
certain of the company's disclosures since the first quarter of
2018 contained material misstatements and omissions in violation of
the Securities Exchange Act of 1934.
On July 20, 2021, Plaintiffs filed an amended class action
complaint.
On September 3, 2021, the company filed a motion to dismiss.
Briefing on the motion is expected to be completed in November
2021.
Jianpu said, "This case remains in its preliminary stages, and we
cannot predict the timing, outcome or consequences of this class
action. We intend to defend against this action vigorously."
Jianpu Technology Inc. operates a platform that provides online
discovery and recommendation services for financial products in the
People's Republic of China. The company operates its platform under
the Rong360 brand name. Jianpu Technology Inc. was founded in 2011
and is headquartered in Beijing, China.
JOHNSON & JOHNSON: AWP Suit in New Jersey Ongoing
-------------------------------------------------
Johnson & Johnson said in its Form 10-Q Report filed with the
Securities and Exchange Commission on October 29, 2021, for the
quarterly period ended October 3, 2021, that the company continues
to defend a putative Average Wholesale Price (AWP) related suit in
New Jersey.
Johnson & Johnson and several of its pharmaceutical subsidiaries
(the J&J AWP Defendants), along with numerous other pharmaceutical
companies, were named as defendants in a series of lawsuits in
state and federal courts involving allegations that the pricing and
marketing of certain pharmaceutical products amounted to fraudulent
and otherwise actionable conduct because, among other things, the
companies allegedly reported an inflated AWP for the drugs at
issue.
Payors alleged that they used those AWPs in calculating provider
reimbursement levels.
The plaintiffs in these cases included three classes of private
persons or entities that paid for any portion of the purchase of
the drugs at issue based on AWP, and state government entities that
made Medicaid payments for the drugs at issue based on AWP.
Many of these cases, both federal actions and state actions removed
to federal court, were consolidated for pre-trial purposes in a
multi-district litigation in the United States District Court for
the District of Massachusetts, where all claims against the J&J AWP
Defendants were ultimately dismissed.
The J&J AWP Defendants also prevailed in a case brought by the
Commonwealth of Pennsylvania. Other AWP cases have been resolved
through court order or settlement.
The case brought by Illinois was settled after trial. In New
Jersey, a putative class action based upon AWP allegations is
pending against Centocor, Inc. and Ortho Biotech Inc. (both now
Janssen Biotech, Inc.), Johnson & Johnson and ALZA Corporation.
All other cases have been resolved.
No further updates were provided in the Company's SEC report.
Johnson & Johnson, together with its subsidiaries, researches and
develops, manufactures, and sells various products in the health
care field worldwide. It operates in three segments: Consumer,
Pharmaceutical, and Medical Devices. The company was incorporated
in 1887 and is based in New Brunswick, New Jersey.
JOHNSON & JOHNSON: Continues to Defend Elmiron Related Suits
------------------------------------------------------------
Johnson & Johnson said in its Form 10-Q Report filed with the
Securities and Exchange Commission on October 29, 2021, for the
quarterly period ended October 3, 2021, that the company continues
to defend itself from class action suits related to Elmiron.
Claims for personal injury have been made against a number of
Johnson & Johnson companies, including Janssen Pharmaceuticals,
Inc. and Johnson & Johnson, arising out of the use of ELMIRON(R), a
prescription medication indicated for the relief of bladder pain or
discomfort associated with interstitial cystitis.
These lawsuits, which allege that ELMIRON® contributes to the
development of permanent retinal injury and vision loss, have been
filed in both state and federal courts across the United States.
In December 2020, lawsuits filed in federal courts in the United
States, including putative class action cases seeking medical
monitoring, were organized as a multi-district litigation in the
United States District Court for the District of New Jersey.
Cases also have been filed in various state courts.
In addition, three class action lawsuits have been filed in Canada.
Product liability lawsuits continue to be filed, and the Company
continues to receive information with respect to potential costs
and the anticipated number of cases.
The Company has established accruals for defense costs associated
with ELMIRON(R) related product liability litigation.
Johnson & Johnson, together with its subsidiaries, researches and
develops, manufactures, and sells various products in the health
care field worldwide. It operates in three segments: Consumer,
Pharmaceutical, and Medical Devices. The company was incorporated
in 1887 and is based in New Brunswick, New Jersey.
JOHNSON & JOHNSON: Continues to Defend Invokana Related Suits
-------------------------------------------------------------
Johnson & Johnson said in its Form 10-Q Report filed with the
Securities and Exchange Commission on October 29, 2021, for the
quarterly period ended October 3, 2021, that the company continues
to defend class action suits related to sales of Invokana
medication.
Claims for personal injury have been made against a number of
Johnson & Johnson companies, including Janssen Pharmaceuticals,
Inc. and Johnson & Johnson, arising out of the use of INVOKANA(R),
a prescription medication indicated to improve glycemic control in
adults with Type 2 diabetes.
In December 2016, lawsuits filed in federal courts in the United
States were organized as a multi-district litigation in the United
States District Court for the District of New Jersey.
Cases have also been filed in state courts.
Class action lawsuits have been filed in Canada.
Product liability lawsuits continue to be filed, and the Company
continues to receive information with respect to potential costs
and the anticipated number of cases.
The Company has settled or otherwise resolved many of the cases and
claims in the United States and the costs associated with these
settlements are reflected in the Company's accruals.
No further updates were provided in the Company's SEC report.
Johnson & Johnson, together with its subsidiaries, researches and
develops, manufactures, and sells various products in the health
care field worldwide. It operates in three segments: Consumer,
Pharmaceutical, and Medical Devices. The company was incorporated
in 1887 and is based in New Brunswick, New Jersey.
JOHNSON & JOHNSON: Court Dismisses Talc-Related Suit in Illinois
----------------------------------------------------------------
Johnson & Johnson said in its Form 10-Q Report filed with the
Securities and Exchange Commission on October 29, 2021, for the
quarterly period ended October 3, 2021, that the motion to dismiss
filed by Johnson & Johnson Consumer, Inc. (JJCI) in the purported
class action suit related to talc contained in Johnson's Baby
Powder, has been granted.
In March 2018, a purported class action was filed in the Circuit
Court Third Judicial District Madison County, Illinois against
Johnson & Johnson Consumer, Inc. (JJCI), alleging violations of
state consumer fraud statutes based on nondisclosure of alleged
health risks associated with talc contained in JOHNSON'S(R) Baby
Powder.
The complaint seeks damages but does not allege personal injury.
In August 2021, the Court granted JJCI's motion to dismiss the
complaint.
Johnson & Johnson, together with its subsidiaries, researches and
develops, manufactures, and sells various products in the health
care field worldwide. It operates in three segments: Consumer,
Pharmaceutical, and Medical Devices. The company was incorporated
in 1887 and is based in New Brunswick, New Jersey.
JOHNSON & JOHNSON: Dismissal of ERISA-Related Class Suit Appealed
-----------------------------------------------------------------
Johnson & Johnson said in its Form 10-Q Report filed with the
Securities and Exchange Commission on October 29, 2021, for the
quarterly period ended October 3, 2021, that the appeal in the
order of dismissal in the class action suit related to the Employee
Retirement Income Security Act of 1974 (ERISA), with the Third
Circuit, is pending.
In January 2019, two ERISA class action lawsuits were filed by
participants in the Johnson & Johnson Savings Plan against Johnson
& Johnson, its Pension and Benefits Committee, and certain named
officers in the United States District Court for the District of
New Jersey, alleging that the defendants breached their fiduciary
duties by offering Johnson & Johnson stock as a Johnson & Johnson
Savings Plan investment option when it was imprudent to do so
because of failures to disclose alleged asbestos contamination in
body powders containing talc, primarily JOHNSON'S(R) Baby Powder.
Plaintiffs are seeking damages and injunctive relief. In September
2019, Defendants filed a motion to dismiss. In April 2020, the
Court granted Defendants' motion but granted leave to amend.
In June 2020, Plaintiffs filed an amended complaint, and in July
2020, Defendants moved to dismiss the amended complaint. As of
October 2020, briefing on Defendants' motion was complete.
In February 2021, the Court granted Defendants' motion, and granted
Plaintiffs leave to amend.
In April 2021, Plaintiffs informed the Court that they did not
intend to file an amended complaint, and the Court dismissed the
case with prejudice.
In May 2021, Plaintiffs filed a notice of appeal with the Third
Circuit. In July 2021, Plaintiffs filed their opening brief in the
Third Circuit and in September 2021, Defendants filed their
response brief. In October 2021, Plaintiffs filed their reply
brief.
Johnson & Johnson, together with its subsidiaries, researches and
develops, manufactures, and sells various products in the health
care field worldwide. It operates in three segments: Consumer,
Pharmaceutical, and Medical Devices. The company was incorporated
in 1887 and is based in New Brunswick, New Jersey.
KOLD TRANS: Hamilton Slams Missed Breaks, Seeks Overtime Pay
------------------------------------------------------------
Bennie Hamilton, on behalf of himself and all others similarly
situated, Plaintiffs, v. Kold Trans LLC, Knight Transportation
Inc., Knight Refrigerated LLC, Knightswift Transportation Holdings
Inc. and Does 1 through 25, inclusive, Defendants, Case No.
21-cv-01859 (C.D. Cal., November 2, 2021), seeks redress for
improper meal periods, improper rest periods, unlawful wage
deduction, non-reimbursement of business-related expenses, improper
wage statements and unfair business practices under the California
Labor Code and IWC Wage Orders.
Defendants hired and employed Hamilton as a non-exempt driver in
August 2021. [BN]
Plaintiff is represented by:
Reuben D. Nathan, Esq.
NATHAN & ASSOCIATES, APC
2901 W. Pacific Coast Highway, Suite 200
Newport Beach, CA 92663
Tel: (949) 270-2798
Email: rnathan@nathanlawpractice.com
LIVE NATION: Oberstein Appeals Antitrust Suit Dismissal
--------------------------------------------------------
Plaintiffs Mitch Oberstein, et al., filed an appeal from a court
ruling entered in the lawsuit entitled Olivia Van Iderstine and
Mitch Oberstein, individually and on behalf of all others similarly
situated, Plaintiffs v. Live Nation Entertainment, Inc. and
Ticketmaster LLC, Defendants, Case No. 2:20-cv-03888, in the U.S.
District Court for the Central District of California, Los
Angeles.
As reported in the Class Action Reporter, the lawsuit is a class
action against the Defendants for violations of Sections 1 and 2 of
the Sherman Act.
The Plaintiffs, individually and on behalf of all others
similarly-situated, allege that the Defendants are engaged in
anticompetitive acts since their merger in 2010 by requiring venues
to select Ticketmaster as their primary ticketing service provider
for them to obtain Live Entertainment concert tours, which limits
the ability of Ticketmaster's competitors to compete in the primary
ticketing market and harming venues that would benefit from
increased competition. The malpractice was unchecked for so long
because consumers had no reason to know how venues contract for
primary ticketing services and because the Defendants affirmatively
concealed the behavior. Moreover, the Plaintiffs claim that the
Defendants have improperly wielded the conditional copyright
license Ticketmaster employs to grant access to its online platform
as an anticompetitive weapon against all users on the site and they
have implemented a technology to prevent primary ticket purchasers
to transfer their tickets to whomever they want. The Defendants'
anticompetitive conduct harmed primary and secondary ticketing
services consumer classes.
On September 20, 2021, the Court granted the Defendants' motion to
compel arbitration, and stayed the claims against Defendants. On
September 30, 2021, the Court issued an order stating, among other
things, that dismissal is appropriate in light of the ruling on
Defendants' motion to compel arbitration.
The Plaintiffs are taking na appeal from this Order. The appellate
case is captioned as Mitch Oberstein, et al. v. Live Nation
Entertainment, Inc, et al., Case No. 21-56200, in the United States
Court of Appeals for the Ninth Circuit, filed on October 29, 2021.
The briefing schedule in the Appellate Case states that:
-- Appellants Sophie Burke, Gary Matty and Mitch Oberstein
Mediation Questionnaire was due on November 5, 2021;
-- Transcript shall be ordered by November 29, 2021;
-- Transcript is due on December 28, 2021;
-- Appellants Sophie Burke, Gary Matty and Mitch Oberstein
opening brief is due on February 7, 2022;
-- Appellees Live Nation Entertainment, Inc. and Ticketmaster
LLC answering brief is due on March 8, 2022; and
-- Appellant's optional reply brief is due 21 days after service
of the answering brief.[BN]
Plaintiffs-Appellants MITCH OBERSTEIN, GARY MATTY, and SOPHIE
BURKE, on behalf of themselves and all those similarly situated,
are represented by:
Warren David Postman, Esq.
KELLER LENKNER, LLC
1100 Vermont Avenue, NW, 12th Floor
Washington, DC 20005
Telephone: (202) 918-1870
- and -
Adam Wolfson, Attorney
QUINN EMANUEL URQUHART & SULLIVAN, LLP
865 South Figueroa Street, 10th Floor
Los Angeles, CA 90017
Telephone: (213) 443-3673
E-mail: adamwolfson@quinnemanuel.com
Defendants-Appellees LIVE NATION ENTERTAINMENT, INC. and
TICKETMASTER LLC are represented by:
Kirsten Marie Ferguson, Esq.
Andrew Michael Gass, Esq.
Timothy L. O'Mara, Esq.
Daniel Murray Wall, Esq.
LATHAM & WATKINS LLP
505 Montgomery Street, Suite 2000
San Francisco, CA 94111-6538
Telephone: (415) 391-0600
E-mail: andrew.gass@lw.com
tim.omara@lw.com
dan.wall@lw.com
LOANDEPOT.COM LLC: N.D. Illinois Narrows Claims in Lewis Suit
-------------------------------------------------------------
In the case, SAMUEL LEWIS, individually and on behalf of all others
similarly situated, Plaintiff v. LOANDEPOT.COM, LLC, Defendant,
Case No. 20 C 7820 (N.D. Ill.), Judge Jorge Alonso of the U.S.
District Court for the Northern District of Illinois, Eastern
Division, granted in part and denied in part the Defendant's motion
to dismiss for failure to state a claim.
Background
In the putative class action, Plaintiff Lewis asserts claims under
several consumer protection statutes against Defendant LoanDepot,
arising out of its mortgage servicing and credit reporting.
In the spring of 2020, the Plaintiff was struggling to pay his
mortgage. He contacted the Defendant, his mortgage servicer, to
inquire about his options. Not long before, on March 27, 2020,
Congress had passed the Coronavirus Aid, Relief, and Economic
Security ("CARES") Act, Pub. L. No. 116-136, 134 Stat. 281. Among
many other provisions, the CARES Act provided mortgage borrowers
facing financial hardships with the right to request forbearance
for up to 180 days, as well as an extension for another 180 days.
The Plaintiff alleges that, during a phone call with the Defendant
in late March or early April 2020, the Defendant informed him that
putting his mortgage loan in forbearance would not affect his
credit. Relying on that representation, the Plaintiff formally
requested forbearance. On April 5, 2020, the Defendant sent the
Plaintiff a letter notifying him that it had accepted his
forbearance request.
However, the Defendant's representation that forbearance would not
affect his credit proved to be incorrect. In June 2020, the
Plaintiff began looking into refinancing his mortgage, and he
submitted preliminary refinancing applications with several
lenders. On June 12, 2020, the credit reporting agency Experian
informed the Plaintiff that his loan balance had increased, and his
credit score had dropped 14 points. Upon investigation, the
Plaintiff learned that the Defendant had added the unpaid interest
that accrued during his forbearance period to the remaining
principal, increasing the loan balance by over $10,000. At his
reduced credit rating, the Plaintiff was unable to obtain a new
loan.
The Plaintiff contacted the Defendant and explained that one of its
representatives had specifically told him that forbearance would
not have any negative impact on his credit report, but the
Defendant maintained that it "had the right" to report an increase
in the loan balance. In July 2020, the Plaintiff filed a complaint
with the Consumer Financial Protection Bureau ("CFPB"). After
obtaining a response from the Defendant and reply from the
Plaintiff, the CFPB closed the complaint and added it to its
database. Subsequently, the Plaintiff filed the case.
The Plaintiff asserts his claims in four counts. Counts I and II
assert essentially the same claim, for violating the Fair Debt
Collection Practices Act ("FDCPA"), 15 U.S.C. Section 1692 et seq.,
by making false representations in connection with the collection
of a debt. Count III asserts a claim for violating the Illinois
Consumer Fraud and Deceptive Business Practices Act ("ICFA"), 815
ILCS 505/1 et seq., by making misrepresentations to plaintiff in
its role as his mortgage servicer. Count IV asserts a claim for
violating the Fair Credit Reporting Act ("FCRA"), 15 U.S.C. Section
1681a(c), by furnishing credit reporting agencies with false
information.
The Plaintiff asserts these claims on behalf of himself and a
putative class of similarly situated mortgage borrowers, defined as
follows: "All residential mortgage borrowers with a Government
Sponsored Enterprise-backed loan for whom LOANDEPOT.COM, LLC placed
a residential mortgage into forbearance under the Coronavirus Aid,
Relief, and Economic Security (CARES) Act, and affirmance that the
borrower is experiencing a financial hardship due to COVID-19."
Discussion
Although the Plaintiff's complaint includes two federal claims, he
(perhaps presciently) asserts not federal question jurisdiction, 28
U.S.C. Section 1331, but that the Court has diversity jurisdiction
under the Class Action Fairness Act ("CAFA"). Under CAFA, an
unincorporated association such as a limited liability company is
deemed to be a citizen of "the State where it has its principal
place of business and the State under whose laws it is organized."
The Plaintiff alleges that he is a resident and citizen of Illinois
and that the Defendant is a Delaware limited liability company with
its principal place of business in California, so the Plaintiff has
made sufficient allegations of subject matter jurisdiction under
CAFA.
The Defendant moves to dismiss each of the Plaintiff's claims. In
his response brief, the Plaintiff does not defend the FDCPA or FCRA
claims, instead focusing only on the ICFA claim. Judge Alonso
therefore deems the FDCPA and FCRA claims abandoned.
The Defendant argues that the remaining claim, the ICFA claim, must
be dismissed for three reasons: (1) the ICFA claim is preempted by
the FCRA; (2) plaintiff fails to plead a plausible ICFA claim under
Rule 8 with the particularity required by Rule 9(b); and (3)
plaintiff fails to state a claim for violating the ICFA because it
is not plausible that he was actually deceived. Judge Alonso is not
persuaded by any of these arguments.
I. Plaintiff's ICFA claim is not preempted by the FCRA
The Defendant argues that the Plaintiff's ICFA claim is preempted
under this provision because the claim relates to loanDepot's
responsibilities as a furnisher of information to consumer
reporting agencies. The Plaintiff responds that the Defendant has
mischaracterized his ICFA claim, which the Plaintiff
recharacterizes as follows: The Defendant told him that forbearance
wouldn't hurt his credit, but the increase in his loan balance did
hurt his credit, and his diminished credit score prevented him from
refinancing his mortgage loan, causing him pecuniary harm. Because
this claim is premised on the Defendant's alleged false statements
to the Plaintiff, rather than any statements to credit reporting
agencies, the Plaintiff argues, it is not preempted.
Judge Alonso agrees with the Plaintiff. The applicable substantive
provision of the FCRA is Section 1681s-2, which imposes duties
related to furnishing accurate information to credit reporting
agencies and investigating disputes about the accuracy of any such
information. Section 1681t(b)(1)(F) preempts claims based on any
"requirement or prohibition" imposed by state law "with respect to
any subject matter regulated" by Section 1681s-2 "relating to the
responsibilities of persons who furnish information to consumer
reporting agencies."
Because the Plaintiff's state-law claims would have been the same
regardless of whether the Defendant or some other entity had
furnished the offending information to credit reporting agencies,
they were not preempted. Although loanDepot furnished damaging
information to credit reporting agencies, the Plaintiff's ICFA
claim would be the same if it had somehow been some other entity,
not loanDepot, that had reported the increased loan balance. For
these reasons, the Plaintiff's ICFA claim is not preempted by the
FCRA.
II. Plaintiff pleads sufficient factual matter under Rules 8 and
9(b)
The Defendant argues that the Plaintiff's complaint must be
dismissed because plaintiff does not plead a plausible ICFA claim
with the particularity required by Rule 9(b). The Plaintiff alleges
that he spoke with a loanDepot representative who stated that
"accepting the forbearance would not have any effect on his
credit," without stating precisely when the communication occurred
or who made the allegedly fraudulent statement. According to the
Defendant, there is not enough detail in this allegation to satisfy
Rule 9(b).
Judge Alonso opines the Plaintiff does not provide the exact date
of his conversation or the identity of the person he spoke with,
but he asserts that the conversation took place over the phone and
it must have taken place in a particular 10-day period between when
the CARES Act was passed on March 27, 2020, and when his
forbearance request was accepted on April 5, 2020. In another case,
more specifics about the content of the alleged misrepresentations
might be necessary, but in the circumstances of the case, Judge
Alonso does not agree that the Plaintiff's allegations are
insufficient under Rule 9(b). In the Court's experience, he says,
financial service institutions such as the Defendant keep records
of customer service contacts, and the Defendant is likely in a
position to "riposte swiftly and effectively if the claim is
groundless."
As for the Defendant's arguments that the Plaintiff's claim is
implausible in light of (a) the forbearance acceptance letter he
received from loanDepot and (b) loanDepot's interests as a lender,
these are out of place at this stage. A plaintiff need not "exclude
all possibility of honesty in order to give the particulars of
fraud"; instead, the "grounds for the Plaintiff's suspicions" need
only "make the allegations plausible." It is enough to show "the
nature of the charge"; the Plaintiff is not required to allege the
fraudulent scheme in such minute detail as to "rule out all
possible defenses. The Plaintiff has met his pleading burden.
III. Plaintiff makes sufficient allegations of deception to state
an ICFA claim
The Defendant argues that the Plaintiff does not state a claim
under the ICFA because the April 5, 2020 letter cut off its
liability. It argues that the April 5, 2020 letter set the record
straight with respect to whether forbearance might have some effect
on the Plaintiff's credit, so any deceptive statements any
loanDepot representative may have made before then cannot have been
the proximate cause of any denial of credit occurring months
afterward, given that the Plaintiff admits he had the option to end
the forbearance period and resume payments at any time, including
immediately after receiving the April 5, 2020 letter.
Judge Alonso opines that like some of the arguments in the
preceding section, this argument is out of place at the pleading
stage. He says, the Defendant is essentially arguing that the
Plaintiff "'knew the truth'" before he was damaged by any deceptive
acts. The Plaintiff has not admitted that he knew the truth, nor
has he pleaded himself out of court on this point. The Defendant's
argument about what the Plaintiff knew "is not an appropriate
argument to raise at the motion to dismiss stage, as Judge Alonso
cannot make any findings of fact as to what the parties did or did
not believe at this point in the proceedings."
Conclusion
The Defendant's motion to dismiss is granted in part and denied in
part. The motion is granted as to the Plaintiff's federal claims.
The motion is denied as to the Plaintiff's Illinois Consumer Fraud
Act claim. A status hearing is set for Nov. 22, 2021.
A full-text copy of the Court's Oct. 29, 2021 Memorandum Opinion &
Order is available at https://tinyurl.com/cbekf47w from
Leagle.com.
LOUISIANA: Appeals Ruling in Prisoners' Medical Care Suit
---------------------------------------------------------
Defendants Darrel Vannoy, et al., filed an appeal from a court
ruling entered in the lawsuit styled JOSEPH LEWIS, JR., ET AL. v.
BURL CAIN, ET AL., Case No. 3:15-CV-318, in the U.S. District Court
for the Middle District of Louisiana.
The suit was originally brought by several inmates incarcerated at
the Louisiana State Penitentiary ("LSP"). The LSP at Angola
(sometimes referred to as "Angola") is a maximum-security men's
prison in Angola, Louisiana that housed between 6,200 and 6,400 men
throughout the discovery period. Defendant Louisiana Department of
Public Safety and Corrections is a division of the State of
Louisiana charged with overseeing the custody and care of inmates
in state prisons, including LSP.
The Plaintiffs claim that the medical care provided at LSP violates
the Eighth Amendment prohibition of cruel and unusual punishment.
They also claim that, through various general practices and
policies, LSP systemically violates the rights of disabled inmates
covered by the Americans with Disabilities Act ("ADA") and the
Rehabilitation Act ("RA").
The Plaintiffs sought to represent a class of all prisoners who are
now, or will in the future, be confined at LSP, as well as an ADA
Subclass of inmates with disabilities who are now, or will in the
future, be confined at LSP. They seek injunctive relief to abate
the alleged systemic deficiencies in the Defendants' policies and
practices that subject all inmates to unreasonable risks of serious
harm.
As reported in the Class Action Reporter on April 13, 2021, Judge
Shelly D. Dick entered judgment in favor of the Plaintiffs. The
Judge held that the Plaintiffs have satisfied their burden of
proving that the Defendants have been deliberately indifferent to
the inmates' serious medical needs in the means and manner of the
delivery of health care, in violation of the Eighth Amendment to
the United States Constitution. She also found that the Plaintiffs
have met their burden of establishing, in part, that the Defendants
violated the ADA, as modified by the Americans with Disabilities
Act Amendment Act, and Section 504 of the RA.
On October 8, 2021, the Court denied Defendants' motion for
reconsideration or, in the alternative, to certify ruling for
interlocutory appeal. The Defendants seek a review of this ruling.
The appellate case is captioned as Lewis et al. v. Cain et al.,
Case No. 21-30671, in the U.S. Court of Appeals for the Fifth
Circuit, filed on Oct. 28, 2021.[BN]
Defendants-Petitioners Darrel Vannoy, Warden, Louisiana State
Penitentiary, in his official capacity; Stephanie Lamartiniere,
Assistant Warden for Health Services, in her official capacity;
James M. LeBlanc, Secretary, Department of Public Safety and
Corrections, in his official capacity; Louisiana Department of
Public Safety and Corrections, are represented by:
Randal James Robert, Esq.
BUTLER SNOW, L.L.P.
445 North Boulevard
Baton Rouge, LA 70802-5707
Telephone: (225) 325-8735
Plaintiffs-Respondents Respondent Kentrell Parker, Farrell Sampier,
Reginald George, John Tonubbee, Otto Barrera, Clyde Carter, Cedric
Evans, Edward Giovanni, Ricky D. Davis, Lionel Tolbert, Rufus
White, Shannon Hurd, Alton Adams, Ian Cazenave, Edward Washington,
and Alton Batiste, on behalf of themselves and all others similarly
situated, are represented by:
Mercedes Hardy Montagnes, Esq.
PROMISE OF JUSTICE INITIATIVE
636 Baronne Street
New Orleans, LA 70113
Telephone: (504) 529-5955
MARRIOTT INT'L: Suits Over Data Security Breach Underway
--------------------------------------------------------
Marriott International, Inc. said in its Form 10-Q Report filed
with the Securities and Exchange Commission on November 3, 2021,
for the quarterly period ended September 30, 2021, that the company
continues to defend lawsuits related to data security incident.
On November 30, 2018, the company announced a data security
incident involving unauthorized access to the Starwood reservations
database.
Working with leading security experts, the company determines that
there was unauthorized access to the Starwood network since 2014
and that an unauthorized party had copied information from the
Starwood reservations database and taken steps towards removing it.
While the company's forensic review of the incident is now
complete, certain data analytics work continues. The Starwood
reservations database is no longer used for business operations.
Following the company's announcement of the Data Security Incident,
approximately 100 lawsuits were filed by consumers and others
against the company in U.S. federal, U.S. state and Canadian courts
related to the incident.
All but one of the U.S. cases were consolidated and transferred to
the U.S. District Court for the District of Maryland, pursuant to
orders of the U.S. Judicial Panel on Multidistrict Litigation.
The plaintiffs in the U.S. and Canadian cases, who generally
purport to represent various classes of consumers, generally claim
to have been harmed by alleged actions and/or omissions by the
Company in connection with the Data Security Incident and assert a
variety of common law and statutory claims seeking monetary
damages, injunctive relief, costs and attorneys' fees, and other
related relief.
Among the U.S. cases consolidated in the MDL proceeding is a
putative class action lawsuit that was filed on December 1, 2018
against the Company and certain of our current and former officers
and directors, alleging violations of the federal securities laws
in connection with statements regarding our cybersecurity systems
and controls, and seeking certification of a class of affected
persons, unspecified monetary damages, costs and attorneys' fees,
and other related relief (the "Securities Case").
The MDL proceeding also included two shareholder derivative
complaints that were filed on February 26, 2019 and March 15, 2019,
respectively, against the Company and certain of our current and
former directors, alleging, among other claims, breach of fiduciary
duty, corporate waste, unjust enrichment, mismanagement and
violations of the federal securities laws, and seeking unspecified
monetary damages and restitution, changes to the Company's
corporate governance and internal procedures, costs and attorneys'
fees, and other related relief (the "MDL Derivative Cases").
A separate shareholder derivative complaint was filed in the
Delaware Court of Chancery on December 3, 2019 against the Company
and certain of our current and former officers and directors,
alleging claims and seeking relief generally similar to the claims
made and relief sought in the other two derivative cases. This case
was not consolidated with the MDL proceeding.
The company filed motions to dismiss in connection with all of the
U.S. cases. The company's motions to dismiss the Securities Case
and the MDL Derivative Cases were granted in June 2021.
The plaintiff in the Securities Case has appealed the dismissal,
which appeal is still pending, and the plaintiffs in the MDL
Derivative Cases have not appealed.
Motions to dismiss in the other MDL cases have been denied in part
or in whole and these cases remain at varying stages. The company's
motion to dismiss the Delaware derivative case was granted in
October 2021.
A putative class action lawsuit brought on behalf of financial
institutions has been voluntarily dismissed.
The Canadian cases have effectively been consolidated into a single
case in the province of Ontario. The company dispute the
allegations in the lawsuits described above and are vigorously
defending against such claims.
In April 2019, the company received a letter purportedly on behalf
of a stockholder of the Company (also one of the named plaintiffs
in the Securities Case described above) demanding that the
company's Board of Directors take action against certain of the
Company's current and former officers and directors to recover
damages for alleged breaches of fiduciary duties and related claims
arising from the Data Security Incident.
In October 2021, the company received a letter purportedly on
behalf of another stockholder of the Company (also one of the named
plaintiffs in one of the dismissed MDL Derivative Cases described
above) demanding that our Board of Directors take action against
certain of the Company's current and former officers and directors
to recover damages for alleged breaches of fiduciary duties and
other claims related to the Data Security Incident or associated
disclosures.
The Board of Directors has constituted a demand review committee to
investigate the claims made in these demand letters, and the
committee has retained independent counsel to assist with the
investigations. The committee's investigations are ongoing.
In addition, on August 18, 2020, a purported representative action
was brought against the company in the High Court of Justice for
England and Wales on behalf of an alleged claimant class of English
and Welsh residents alleging breaches of the General Data
Protection Regulation and/or the U.K. Data Protection Act 2018 (the
"U.K. DPA") in connection with the Data Security Incident.
Marriott said, "We dispute all of the allegations in this purported
action and will vigorously defend against any such claims. On
November 5, 2020, the court issued an order with the consent of all
parties staying this action pending resolution of another case
raising similar issues, but not involving the Company, that is
pending before the U.K. Supreme Court."
Marriott International, Inc., incorporated on September 19, 1997,
is a lodging company. As of December 31, 2017, the Company
operated, franchised, or licensed 6,520 properties across the
world, with 1,257,666 rooms. Marriott International operates in
three business segments: North American Full-Service, North
American Limited-Service and International. The company is based in
Bethesda, Maryland.
MDL 2905: Toyota Appeals Arbitration Bid Denial in Renteria Case
----------------------------------------------------------------
Defendants TOYOTA MOTOR NORTH AMERICA, INC., filed an appeal from a
court ruling entered in the lawsuit styled In Re: ZF-TRW Airbag
Control Units Products Liability Litigation, Case No.
2:19-ml-02905-JAK-PLA, in the U.S. District Court for the Central
District of California, Los Angeles.
As previously reported in the Class Action Reporter, the Plaintiff
sues over defective airbag control units ("ACUs") designed and
supplied by Defendant ZF-TRW, which are part of airbag systems
equipped in vehicles manufactured by Defendants Kia, Hyundai, FCA,
Mitsubishi, Honda, and Toyota.
ACUs are designed and manufactured to sense a vehicle crash,
determine whether airbag deployment is necessary, and deploy
appropriate airbags and other supplemental restraints where
needed.
ACUs contain an electronic component -- an application specific
integrated circuit ("ASIC") -- which monitors signals from other
crash sensors in vehicles. When the ASIC functions properly, the
ACU detects the severity of a crash, deploys the airbag, if
necessary, and engages seatbelt pretensioners.
The defect in the ACU occurs because the ACIS becomes over stressed
by excess electrical energy generated during the crash. As a result
of this electrical overstress ("EOS") condition that causes the
malfunction of the ASIC in the ACUs, the airbags equipped in the
Class Vehicles do not properly deploy during a crash ("ACU
Defect"). Rather than deploying airbags, which protect vehicle
occupants from bodily harm during accidents, the defective ACUs may
fail to send a signal to deploy airbags. ACU malfunctions greatly
increase the risk of serious injury and death to vehicle occupants
in the event of a collision.
The Defendants became aware of the ACU Defect as early as 2011,
however, they failed to disclose and actively concealed Class the
dangers and risks posed by the Vehicles or the ACU Defect, exposing
millions of consumers to serious and life-threatening safety
risks.
The ACU Defect creates a dangerous condition that gives rise to a
clear, substantial, and unreasonable danger of injury or death. The
Defendants put profits ahead of safety by continuing to manufacture
and equip vehicles with the defective ACUs year after year, even
though they knew or should have known that the ACUs were
defective.
The car manufacturers that purchased ZF-TRW's defective ACU's knew
or should have known of the common uniform design defect of the
ZF-TRW ACUs.
The Plaintiff and Class members were allegedly harmed and suffered
actual damages. The Plaintiff and Class members did not receive the
benefit of their bargain. Rather, they purchased or leased vehicles
that are of a lesser standard, grade, and quality than represented,
and they did not receive vehicles that met the ordinary and
reasonable customer expectations regarding safety.
On December 10, 2020, Defendants Toyota Motor Corp, Toyota Motor
Engineering and Manufacturing North America, Inc., Toyota Motor
North America, Inc., and Toyota Motor Sales, U.S.A., Inc. filed a
motion to compel arbitration.
The Defendants now seek a review of the Court's Order dated
September 27, 2021, denying their motion to compel Plaintiffs
Alejandra Renteria and Mark Altier to arbitration.
The appellate case is captioned as Alejandra Renteria, et al. v.
Toyota Motor North America, In, et al., Case No. 21-56193, in the
United States Court of Appeals for the Ninth Circuit, filed on
October 28, 2021.
The briefing schedule in the Appellate Case states that:
-- Appellants Toyota Motor Engineering and Manufacturing North
America, Inc., Toyota Motor North America, Inc. and Toyota Motor
Sales, U.S.A., Inc. Mediation Questionnaire was due on November 4,
2021;
-- Transcript shall be ordered by November 29, 2021;
-- Transcript is due on December 28, 2021;
-- Appellants Toyota Motor Engineering and Manufacturing North
America, Inc., Toyota Motor North America, Inc. and Toyota Motor
Sales, U.S.A., Inc. opening brief is due on February 3, 2022;
-- Appellees Mark Altier and Alejandra Renteria answering brief
is due on March 4, 2022; and
-- Appellant's optional reply brief is due 21 days after service
of the answering brief.[BN]
Defendants-Appellants TOYOTA MOTOR NORTH AMERICA, INC., TOYOTA
MOTOR SALES, U.S.A., INC., and TOYOTA MOTOR ENGINEERING AND
MANUFACTURING NORTH AMERICA, INC. are represented by:
Mark Vincent Berry, Esq.
BOWMAN & BROOKE
879 West 190th St.
Gardena, CA 90247
Telephone: (310) 380-6505
- and -
Vincent Galvin, Esq.
BOWMAN & BROOKE LLP
1741 Technology Drive
San Jose, CA 95110
Telephone: (408) 961-4501
- and -
Michael Lawrence Mallow, Esq.
Rachel A. Straus, Esq.
SHOOK, HARDY & BACON, LLP
2049 Century Park, E, Suite 3000
Los Angeles, CA 90067
Telephone: (424) 285-8330
- and -
Amir Nassihi, Esq.
SHOOK, HARDY & BACON, LLP
555 Mission Street, Suite 2300
San Francisco, CA 94105
Telephone: (415) 544-1900
Plaintiffs-Appellees ALEJANDRA RENTERIA and MARK ALTIER, on behalf
of themselves and all others similarly situated, are represented
by:
David S. Stellings, Esq.
LIEFF CABRASER HEIMANN & BERNSTEIN, LLP
250 Hudson Street
New York, NY 10013
- and -
Roland Karim Tellis, Esq.
BARON & BUDD, P.C.
15910 Ventura Boulevard, Suite 1600
Encino, CA 91436
MID-AMERICA APARTMENT: Appeals Class Certification of Cleven Suit
-----------------------------------------------------------------
Mid-America Apartment Communities, Inc. (MAA) said in its Form 10-Q
Report filed with the Securities and Exchange Commission on October
28, 2021, for the quarterly period ended September 30, 2021, that
the petition seeking review of the District Court's order granting
class certification of the lawsuit initiated by Cathi Cleven and
Tara Cleven remains pending in the Fifth Circuit Court of Appeals.
In June 2016, plaintiffs Cathi Cleven and Tara Cleven, on behalf of
a purported class of plaintiffs, filed a complaint against MAA and
the Operating Partnership in the United States District Court for
the Western District of Texas, Austin Division.
In January 2017, Areli Arellano and Joe L. Martinez joined the
lawsuit as additional plaintiffs.
The lawsuit alleges that the Company (but not Post Properties)
charged late fees at its Texas properties that violate Section
92.019 of the Texas Property Code, or Section 92.019, which
provides that a landlord may not charge a tenant a late fee for
failing to pay rent unless, among other things, the fee is a
reasonable estimate of uncertain damages to the landlord that are
incapable of precise calculation and result from the late payment
of rent.
The plaintiffs are seeking monetary damages and attorneys' fees and
costs.
In September 2018, the District Court certified a class proposed by
the plaintiffs. Additionally, in September 2018, the District Court
denied the Company's motion for summary judgment and granted the
plaintiffs' motion for partial summary judgment.
Because the District Court certified a class prior to granting the
plaintiffs' motion for partial summary judgment, the District
Court's ruling applies to the entire class.
In October 2018, the Fifth Circuit Court of Appeals accepted the
Company's petition to review the District Court's order granting
class certification.
In September 2019, the Fifth Circuit Court of Appeals heard the
Company's oral arguments.
The Company also intends to appeal the District Court's order
granting plaintiff's motion for summary judgment to the Fifth
Circuit Court of Appeals if permission to appeal is granted.
Mid-America said, "The Company will continue to vigorously defend
the action and pursue such appeals. Management estimates that the
Company's maximum exposure in the lawsuit, given the class
certification and summary judgment ruling, is $54.6 million, which
includes both potential damages and attorneys' fees but excludes
any prejudgment interest that may be awarded."
No further updates were provided in the Company's SEC report.
Mid-America Apartment Communities, Inc. (MAA), incorporated on
September 22, 1993, is a multifamily-focused, self-administered and
self-managed real estate investment trust (REIT). The Company owns,
operates, acquires and develops apartment communities primarily
located in the Southeast and Southwest regions of the United
States. It operates through three segments: Large market same
store, Secondary market same store and Non-Same Store and Other.
The company is based in Germantown, Tennessee.
MKS INSTRUMENTS: Oral Argument in Shareholder Suit Set for Dec. 15
------------------------------------------------------------------
MKS Instruments, Inc. said in its Form 10-Q Report filed with the
Securities and Exchange Commission on November 3, 2021, for the
quarterly period ended September 30, 2021, that the Nevada Supreme
Court has scheduled oral argument for December 15, 2021, on the
appeal made by the plaintiffs in the consolidated class action suit
entitled, In re Newport Corporation Shareholder Litigation, Case
No. A-16-733154-B.
In 2016, two putative class actions lawsuit captioned Dixon Chung
v. Newport Corp., et al., Case No. A-16-733154-C, and Hubert C.
Pincon v. Newport Corp., et al., Case No. A-16-734039-B, were filed
in the District Court, Clark County, Nevada on behalf of a putative
class of stockholders of Newport for claims related to the merger
agreement between the Company, Newport, and a wholly-owned
subsidiary of the Company ("Merger Sub").
The lawsuits named as defendants the Company, Newport, Merger Sub,
and certain then current and former members of Newport's board of
directors. Both complaints alleged that Newport directors breached
their fiduciary duties to Newport's stockholders by agreeing to
sell Newport through an inadequate and unfair process, which led to
inadequate and unfair consideration, by agreeing to unfair deal
protection devices and by omitting material information from the
proxy statement.
The complaints also alleged that the Company, Newport and Merger
Sub aided and abetted the directors' alleged breaches of their
fiduciary duties. The District Court consolidated the actions, and
plaintiffs later filed an amended complaint captioned In re Newport
Corporation Shareholder Litigation, Case No. A-16-733154-B, in the
District Court, Clark County, Nevada, on behalf of a putative class
of Newport's stockholders for claims related to the Newport Merger
Agreement.
The amended complaint alleged Newport's former board of directors
breached their fiduciary duties to Newport's stockholders and that
the Company, Newport and Merger Sub had aided and abetted these
breaches and sought monetary damages, including pre- and
post-judgment interest. In June 2017, the District Court granted
defendants' motion to dismiss and dismissed the amended complaint
against all defendants but granted plaintiffs leave to amend.
On July 27, 2017, plaintiffs filed a second amended complaint
containing substantially similar allegations but naming only
Newport's former directors as defendants. On August 8, 2017, the
District Court dismissed the Company and Newport from the action.
The second amended complaint seeks monetary damages, including pre-
and post-judgment interest. The District Court granted a motion for
class certification on September 27, 2018, appointing Mr. Pincon
and Locals 302 and 612 of the International Union of Operating
Engineers - Employers Construction Industry Retirement Trust as
class representatives.
On June 11, 2018, plaintiff Dixon Chung was voluntarily dismissed
from the litigation. On August 9, 2019, plaintiffs filed a motion
for leave to file a third amended complaint, which was denied on
October 10, 2019. On August 23, 2019, defendants filed a motion for
summary judgment.
On January 23, 2020, the District Court entered its findings of
fact, conclusions of law, and order granting defendants' motion for
summary judgment. On February 18, 2020, plaintiffs filed a notice
of appeal from the District Court's order granting defendants'
motion for summary judgment, as well as from the District Court's
prior orders granting defendants' motion for a bench trial and
denying plaintiffs' motion for leave to file an amended complaint.
On November 30, 2020, plaintiffs filed their opening brief in the
Nevada Supreme Court in support of their appeal from the District
Court's orders.
On January 29, 2021, defendants filed their answering brief, and on
March 30, 2021, plaintiffs filed their reply brief.
The Nevada Supreme Court has scheduled oral argument for December
15, 2021.
MKS Instruments, Inc. develops, manufactures, and supplies
instruments and components used to control and analyze gases in
semiconductor and similar industrial manufacturing processes. The
Company offers products to manufacture flat panel displays,
magnetic and optical storage devices and media, solar cells, fiber
optic cables, and diamond thin films. The company is based in
Andover, Massachusetts.
MOHAWK INDUSTRIES: Court Narrows Claims in Shareholder Class Suit
-----------------------------------------------------------------
Mohawk Industries, Inc. said in its Form 10-Q Report filed with the
Securities and Exchange Commission on October 29, 2021, for the
quarterly period ended October 2, 2021, that the motion to dismiss
the amended complaint filed in the putative shareholder class
action suit has been granted in part and denied in part.
On January 3, 2020, the Company and certain of its executive
officers were named as defendants in a putative shareholder class
action lawsuit filed in the United States District Court for the
Northern District of Georgia.
The complaint alleges that defendants violated the Securities
Exchange Act of 1934 and Rule 10b-5 promulgated thereunder by
making materially false and misleading statements and that the
officers are control persons under Section 20(a) of the Securities
Exchange Act of 1934.
The complaint is filed on behalf of shareholders who purchased
shares of the Company's common stock between April 28, 2017 and
July 25, 2019. On June 29, 2020, an amended complaint was filed in
the Securities Class Action against Mohawk and its CEO Jeff
Lorberbaum, based on the same claims and the same Class Period.
The amended complaint alleges that the Company (1) engaged in
fabricating revenues by attempting delivery to customers that were
closed and recognizing these attempts as sales; (2) overproduced
product to report higher operating margins and maintained
significant inventory that was not salable; and (3) valued certain
inventory improperly or improperly delivered inventory with
knowledge that it was defective and customers would return it.
On October 27, 2020, defendants filed a motion to dismiss the
amended complaint. On September 29, 2021, the court issued an order
granting in part and denying the defendants' motion to dismiss the
amended complaint, and defendants intend to file an answer to the
amended complaint on November 12, 2021.
The Company intends to vigorously defend against the claims.
Mohawk Industries, Inc. is a global flooring manufacturer that
creates products to enhance residential and commercial spaces
around the world. The company is based in Calhoun, Georgia.
MOHAWK INDUSTRIES: Loses Bid to Dismiss Johnson Class Suit
-----------------------------------------------------------
Mohawk Industries, Inc. said in its Form 10-Q Report filed with the
Securities and Exchange Commission on October 29, 2021, for the
quarterly period ended October 2, 2021, that the motion to dismiss
the complaint in the class action suit initiated by Jarrod Johnson
has been denied.
In September 2016, the Water Works and Sewer Board of the City of
Gadsden, Alabama (the "Gadsden Water Board") filed an individual
complaint in the Circuit Court of Etowah County, Alabama against
certain manufacturers, suppliers, and users of chemicals containing
specific Perfluorinated Compounds (PFCs), including the Company.
In May 2017, the Water Works and Sewer Board of the Town of Centre,
Alabama (the "Centre Water Board") filed a similar complaint in the
Circuit Court of Cherokee County, Alabama.
The Gadsden Water Board and the Centre Water Board both seek
monetary damages and injunctive relief claiming that their water
supplies contain excessive amounts of PFCs.
Certain defendants, including the Company, filed dispositive
motions in each case arguing that the Alabama state courts lack
personal jurisdiction over them. These motions were denied. In June
and September 2018, certain defendants, including the Company,
petitioned the Alabama Supreme Court for Writs of Mandamus
directing each lower court to enter an order granting the
defendants' dispositive motions on personal jurisdiction grounds.
The Alabama Supreme Court denied the petitions on December 20,
2019. Certain defendants, including the Company, filed an
Application for Rehearing with the Alabama Supreme Court asking the
court to reconsider its December 2019 decision.
The Alabama Supreme Court denied the application for rehearing. On
August 21, 2020, certain defendants, including the Company,
petitioned the Supreme Court of the United States for review of the
matter. On January 19, 2021, the Supreme Court denied the
defendants' petition for review.
In December 2019, the City of Rome, Georgia filed a complaint in
the Superior Court of Floyd County, Georgia that is similar to the
Gadsden Water Board and Centre Water Board complaints, again
seeking monetary damages and injunctive relief related to PFCs.
Also in December 2019, Jarrod Johnson filed a putative class action
in the Superior Court of Floyd County, Georgia purporting to
represent all water subscribers with the Rome (Georgia) Water and
Sewer Division and/or the Floyd County (Georgia) Water Department
and seeking to recover, among other things, damages in the form of
alleged increased rates and surcharges incurred by ratepayers for
the costs associated with eliminating certain PFCs from their
drinking water.
In January 2020, defendant 3M Company removed the class action to
federal court. The Company filed motions to dismiss in both of
these cases. On December 17, 2020, the Superior Court of Floyd
County denied the Company's motion to dismiss in the Rome case.
On September 20, 2021, the Northern District of Georgia denied the
Company's motion to dismiss in the class action.
The Company denies all liability in these matters and intends to
defend them vigorously.
Mohawk Industries, Inc. is a global flooring manufacturer that
creates products to enhance residential and commercial spaces
around the world. The company is based in Calhoun, Georgia.
MONEYGRAM INT'L: Bid to Junk Illinois Putative Class Suit Pending
-----------------------------------------------------------------
MoneyGram International, Inc. said in its Form 10-Q Report filed
with the Securities and Exchange Commission on October 29, 2021,
for the quarterly period ended September 30, 2021, that the
company's motion to dismiss the putative securities class action
suit filed in the United States District Court for the Northern
District of Illinois, is pending.
On November 14, 2018, a putative securities class action lawsuit
was filed in the United States District Court for the Northern
District of Illinois against MoneyGram and certain of its executive
officers.
The lawsuit asserts claims under Sections 10(b) and 20(a) of the
Securities Exchange Act of 1934 and alleges that MoneyGram made
material misrepresentations regarding its compliance with the
stipulated order for permanent injunction and final judgment that
MoneyGram entered into with the Federal Trade Commission ("FTC") in
October 2009 and with the deferred prosecution agreement (the
"DPA") that MoneyGram entered into with the U.S. Attorney's Office
for the Middle District of Pennsylvania and the U.S. Department of
Justice in November 2012.
The lawsuit seeks unspecified damages, equitable relief, interest
and costs and attorneys' fees.
The Company believes the case is without merit and is vigorously
defending this matter.
On May 16, 2019, MoneyGram filed a motion to dismiss which the
court has yet to rule upon.
MoneyGram said "We are unable to predict the outcome, or the
possible loss or range of loss, if any, related to this matter."
No further updates were provided in the Company's SEC report.
MoneyGram International, Inc., together with its subsidiaries,
provides money transfer services in the United States and
internationally. The company operates through two segments, Global
Funds Transfer and Financial Paper Products. MoneyGram
International, Inc. was founded in 1940 and is based in Dallas,
Texas.
MONEYGRAM INT'L: Class Suit Over Ties to Ripple Labs Junked
-----------------------------------------------------------
MoneyGram International, Inc. said in its Form 10-Q Report filed
with the Securities and Exchange Commission on October 29, 2021,
for the quarterly period ended September 30, 2021, that the
consolidated putative class action suit related to the company's
business relationship with Ripple Labs, Inc. and MoneyGram's use of
Ripple's XRP cryptocurrency, has been dismissed.
On March 1, 2021, a putative securities class action lawsuit was
filed in the United States District Court for the Central District
of California against MoneyGram and certain of its executive
officers.
A second substantially similar putative class action was filed
March 10, 2021 in the same court.
The lawsuits asserted claims under Sections 10(b) and 20(a) of the
Securities Exchange Act of 1934 and alleged that MoneyGram made
material misrepresentations regarding its business relationship
with Ripple Labs, Inc. ("Ripple") and MoneyGram's use of Ripple's
XRP cryptocurrency.
The lawsuits sought unspecified damages, equitable relief, interest
and costs and attorneys' fees.
On April 8, 2021, by agreement of the parties, the court
consolidated the two lawsuits and transferred the consolidated
action to the United States District Court for the Northern
District of Texas.
On July 20, 2021, the Court-appointed lead plaintiff filed a Notice
of Voluntary Dismissal with prejudice prior to the deadline for
filing a consolidated amended complaint.
On August 2, 2021, the Court terminated the consolidated action
described above.
MoneyGram International, Inc., together with its subsidiaries,
provides money transfer services in the United States and
internationally. The company operates through two segments, Global
Funds Transfer and Financial Paper Products. MoneyGram
International, Inc. was founded in 1940 and is based in Dallas,
Texas.
NCR CORPORATION: Settlement Reached in Suit Against Cardtronics
----------------------------------------------------------------
NCR Corporation said in its Form 10-Q Report filed with the
Securities and Exchange Commission on October 29, 2021, for the
quarterly period ended September 30, 2021, that Cardtronics plc and
the putative class representative in Kristen Schertzer, et al. v.
Bank of America, N.A., et al., have agreed to settle the matter as
to the company only on an individual plaintiff basis.
On March 1, 2019, Cardtronics plc was named as a defendant in a
purported class action lawsuit stylized as Kristen Schertzer, et
al. v. Bank of America, N.A., et al., Case No. 3:19-cv-00264, in
the United States District Court for the Southern District of
California, which alleges harm related to balance inquiry
transactions.
On September 28, 2020, the District Court issued a denial of
Cardtronics' motion to dismiss and the matter proceeded to the
discovery phase.
In October 2021, Cardtronics and the putative class representative
agreed to settle this matter as to the company only on an
individual plaintiff basis.
The litigation continues as to the other defendants.
Cardtronics will soon be dismissed from the case.
NCR Corporation is a leading software- and services-led enterprise
provider in the financial, retail, hospitality, and
telecommunications and technology industries (T&T). NCR is a global
company that is headquartered in Atlanta, Georgia.
NEO TECHNOLOGY: Time to File Response/Reply Extended in Portier
---------------------------------------------------------------
In the class action lawsuit captioned as Portier v NEO Technology
Solutions, et al., Case No. 3:17-cv-30111 (D. Mass.), the Hon.
Judge Timothy S. Hillman entered an order granting the Parties'
stipulated motion for extension of time to file response / reply:
-- Plaintiffs' response due: Dec. 6, 2021
-- Defendants' reply due: Dec. 20, 2021
-- Motion for class certification Jan. 25, 2022
hearing Continued to:
Neo Technology is a global provider of digital experts and offshore
solutions.
The nature of suit states Other Statutes -- Other Statutory
Actions.[CC]
NEWELL BRANDS: Continues to Defend OFPRS Suit
---------------------------------------------
Newell Brands Inc. said in its Form 10-Q Report filed with the
Securities and Exchange Commission on October 29, 2021, for the
quarterly period ended September 30, 2021, that the company
continues to defend a class action suit entitled, Oklahoma
Firefighters Pension and Retirement System v. Newell Brands Inc.,
et al.
The Company and certain of its current and former officers and
directors have been named as defendants in a putative securities
class action lawsuit filed in the Superior Court of New Jersey,
Hudson County, on behalf of all persons who acquired Company common
stock pursuant or traceable to the S-4 registration statement and
prospectus issued in connection with the April 2016 acquisition of
Jarden.
The action was filed on September 6, 2018 and is captioned Oklahoma
Firefighters Pension and Retirement System v. Newell Brands Inc.,
et al., Civil Action No. HUD-L-003492-18.
The operative complaint alleges certain violations of the
securities laws, including, among other things, that the defendants
made certain materially false and misleading statements and
omissions in the Registration Statement regarding the Company's
financial results, trends, and metrics.
The plaintiff seeks compensatory damages and attorneys' fees and
costs, among other relief.
The Company is currently unable to predict the ultimate timing or
outcome of this litigation or reasonably estimate the range of
possible losses.
The Company maintains insurance intended to cover losses arising
out of this litigation up to specified limits (subject to
deductibles, coverage limits and other terms and conditions), but
any losses may exceed our current coverage levels, which could have
an adverse impact on our financial results.
Newell Brands Inc. designs, manufactures, sources, and distributes
consumer and commercial products worldwide. Newell Brands Inc. was
formerly known as Newell Rubbermaid Inc. and changed its name to
Newell Brands Inc. in April 2016. The company was founded in 1903
and is based in Hoboken, New Jersey.
NOBLE ENERGY: Boulter Appeals Dismissal of Royalty Owners' Suit
---------------------------------------------------------------
Plaintiffs Mike Boulter, et al., filed an appeal from a court
ruling entered in the lawsuit MIKE BOULTER, BOULTER, LLC, RALPH NIX
PRODUCE, INC., and BARCLAY FARMS, LLC, on behalf of themselves and
all others similarly situated, Plaintiffs v. NOBLE ENERGY, INC.,
and KERR-MCGEE OIL & GAS ONSHORE, LP, Defendants, Case No.
1:21-cv-01346-NYW, in the United States District Court for the
District of Colorado.
As reported in the Class Action Reporter on May 24, 2021, the
lawsuit is a class action against the Defendants for breach of
contract and declaratory judgment.
The case arises from the Defendants' practice of underpaying
royalties owed to the Plaintiffs for over six years. The Defendants
are allegedly deducting transportation charges and other costs in
their calculation and payment of royalties to the Plaintiffs on oil
sales, which are not permitted under the Noble Class oil royalty
provision and the Kerr-McGee Subclass I oil royalty provision. As a
result of the Defendants' breach of their contractual obligations,
the Plaintiffs and Class members have sustained substantial
damages, the suit added.
On October 4, 2021, the Court dismissed Plaintiffs' claims without
prejudice. On October 29, 2021, judgment was entered in favor of
Defendants Noble Energy, Inc., and Kerr-McGee Oil & Gas Onshore,
LP; and against Plaintiffs Mike Boulter, Boulter, LLC, Ralph Nix
Produce, Inc., and Barclay Farms, LLC. The Court further ordered
that Plaintiffs' claims are dismissed without prejudice.
The Plaintiffs seek a review of this ruling in their appellate case
captioned as Boulter, et al. v. Noble Energy, et al., Case No.
21-1384, in the United States Court of Appeals for the Tenth
Circuit, filed on October 29, 2021.[BN]
Plaintiffs-Appellants MIKE BOULTER, BOULTER, LLC, RALPH NIX
PRODUCE, INC., and BARCLAY FARMS, LLC, on behalf of themselves and
all others similarly situated, are represented by:
George A. Barton, Esq.
Stacy A. Burrows, Esq.
BARTON AND BURROWS, LLC
5201 Johnson Dr. Ste. 110
Mission, KS 66052
Telephone: (913) 563-6250
Facsimile: (913) 563-6259
E-mail: george@bartonburrows.com
stacy@bartonburrows.com
OMNI HOTELS: S.D. California Narrows Claims in Beaver Class Suit
----------------------------------------------------------------
In the case, DEAN BEAVER and LAURIE BEAVER, Plaintiffs v. OMNI
HOTELS MANAGEMENT CORPORATION, a Delaware Corporation; LC BROKERAGE
CORP., a Delaware Corporation; LC INVESTMENT 2010, LLC, a Delaware
Limited Liability Company; KELLY GINSBERG, an individual; WILLIAM
IMS, an individual; BRETT ALEXANDER COMBS, an individual; and DOES
1 through 50, inclusive, Defendants, Case No. 20-cv-00191-AJB-KSC
(S.D. Cal.), Judge Anthony J. Battaglia of the U.S. District Court
for the Southern District of California granted in part and denied
in part the Defendants' motion to dismiss the First Amended
Complaint.
Background
The Plaintiffs are husband and wife, who jointly own a villa
located in the Omni La Costa Resort and Spa. LC Investment owns the
Resort. Like approximately 98% of villa owners at the Resort, the
Plaintiffs rent their villa pursuant to the terms of a Rental
Management Agreement ("RMA") with LC Brokerage, a
California-licensed real estate brokerage company. LC Brokerage is
an affiliate of Omni, the manager of the Resort.
The core of the Plaintiffs' claims concern Omni's alleged
years-long scheme to self-deal through tortious and fraudulent
interference with and management of the villa rental program under
the RMA. According to them, although LC Brokerage is ostensibly
charged with operating the rental program, it has quietly abdicated
its responsibilities to Omni, which has used and abused its power
under the RMA to intentionally steer guests into its own hotel
rooms rather than the villas -- causing the Plaintiffs and other
villa owners to lose millions of dollars.
In addition, all villas are governed by the Unit Maintenance and
Operations Agreement ("UMA"), which entitles LC Investment (another
Omni affiliate) to $100 per night or 20% of a villa owner's nightly
rental revenue, if the owner opts not to use LC Brokerage as its
managing agent. The Plaintiffs state that this high cost of leaving
the rental program forces villa owners into Omni's program because
it is too expensive to rent outside of Omni's control. They claim
that Omni, LC Brokerage, LC Investment, and the individual
brokers-of-record for LC Brokerage (Ginsberg, Ims, and Combs), have
perpetrated this RICO scheme to defraud by using LC Brokerage as an
enterprise.
The Plaintiffs bring the instant putative class action complaint
against Defendants on behalf of themselves and all others similarly
situated.
Pending before the Court is Defendants Kelly Ginsberg, William Ims,
Brett Alexander Combs, Omni, LC Brokerage, and LC Investment's
motion to dismiss for failure to state a claim, pursuant to Federal
Rule of Civil Procedure 12(b)(6). Plaintiffs Dean Beaver and Laurie
Beaver filed an opposition to the motion to dismiss, to which the
Defendants replied.
Discussion
In a prior Order granting the Defendants' motion to dismiss the
original complaint, the Court dismissed without leave to amend the
Plaintiffs' cause of action for intentional interference with
contract and dismissed Defendant Ginsberg from the action.
Additionally, the Court dismissed with leave to amend the
Plaintiffs' claims for breach of contract, violations of Bus. &
Prof. Code Section 17200 et seq., and accounting. The parties'
moving papers make clear, however, that the Plaintiffs have elected
to amend only their breach of contract action, and that the only
issue before the Court is whether the Plaintiffs have stated a
breach of contract claim against Omni based on an alter ego theory
of liability.
The Plaintiffs claim that neither LC Brokerage nor LC Investment
are independent, and both serve as Omni's alter ego. They allege
that LC Investment is the fee simple owner of the Resort. Omni
manages the Resort. It owns a portion of the hotel rooms at the
Resort. Omni collects 100% of the revenue generated from renting
out Omni-owned rooms.
Additionally, the Plaintiffs own hotel rooms at the Resort. They
did not allow Omni to rent out their rooms because Omni would have
a conflict of interest. To prevent Omni from self-dealing, the
Plaintiffs rented out their property through LC Brokerage. LC
Brokerage had the exclusive right to rent out the Plaintiffs'
property on the Resort. If the Plaintiffs chose to rent out their
rooms beyond the parameters of the RMA, the Plaintiffs would have
to pay LC Investment according to the UMA. Pursuant to the RMA, LC
Brokerage agreed to maximize revenues for the Plaintiffs.
A. Unity of Interest
To begin, the Defendants contend that to plead the unity of
interest element of the alter ego doctrine, a plaintiff must allege
manipulative control.
Accepting these facts as true, Judge Battaglia holds that there is
a reasonable inference that Omni used LC Brokerage to make it
appear as though there was an independent intermediary between Omni
and potential buyers such as the Plaintiffs, and that LC Brokerage
existed merely to assist Omni in a self-dealing scheme. Indeed, the
First Amended Complaint ("FAC") contains allegations that in a
prior related litigation, LC Brokerage's brokers of record,
"Ginsberg and Ims have both admitted under oath that LC Brokerage
has never supervised or administered the rental program. Instead,
both of these brokers testified that Omni has always administered
and controlled the rental program with no supervision by LC
Brokerage." Based on the foregoing, Judge Battaglia finds that the
Plaintiffs have pled sufficient facts to show that Omni used LC
Brokerage "as a mere shell, instrumentality or conduit for a single
venture or the business of an individual or another corporation."
Accordingly, Judge Battaglia finds that the Plaintiffs have
plausibly pled a "failure to segregate funds," the concealment of
LC Brokerage's "ownership and management," "the use of the same
office or business location," and "the use of a corporation as a
mere shell, instrumentality or conduit for a single venture or the
business of an individual or another corporation" -- all of which
are factors that invoke the unity of interest prong of the alter
ego doctrine.
B. Inequitable Result
Next, the second alter ego prong requires a plaintiff to show that,
"if the acts are treated as those of the corporation alone, an
inequitable result will follow." In the case, the Plaintiffs' FAC
alleges facts from which the Court can reasonably infer that an
inequitable result would follow if LC Brokerage's acts were treated
as if they were its acts alone. First, they allege facts supporting
the inference that while LC Brokerage was still operational, LC
Brokerage was either noncapitalized or undercapitalized because it
did not receive any rental revenue. Second, they allege that the
rental revenue intended for LC Brokerage were directed to
Omni-controlled bank accounts. And fourth, they allege that LC
Brokerage abruptly "ceased operations" in August 2017.
Judge finds unavailing the Defendants' argument that the FAC does
not specifically allege that LC Brokerage could not satisfy a
judgment entered against it. Based on the Plaintiffs' allegations
that LC Brokerage was noncapitalized and ceased operations years
ago, he can reasonably infer that LC Brokerage could not satisfy a
judgment. Additionally, as previously discussed, the FAC contains
allegations indicating that LC Brokerage was a mere shell for
Omni's self-dealing. The Plaintiffs' allegations therefore indicate
that adherence to the fiction of LC Brokerage as a separate entity
would sanction a fraud or promote injustice in the case.
Judge Battaglia also finds that the Plaintiffs have pled
allegations sufficient to indicate bad faith on the part of Omni.
Considering the Plaintiffs' allegations that LC Brokerage is a sham
rental corporation with no rental revenues, employees, or corporate
officers, and existed to assist in Omni's self-dealing, he finds
that precluding the application of the alter ego theory may
"sanction a fraud or promote injustice" in the case. Consequently,
he finds that the Plaintiffs have adequately pled the second
element of the alter ego doctrine.
In sum, having found that the Plaintiffs sufficiently pled facts
showing unity of interest and inequitable result, Judge Battaglia
denies the Defendants' motion to dismiss the Plaintiffs' breach of
contract claim.
Conclusion
Accordingly, for the reasons he stated, Judge Battaglia granted in
part and denied in part the Defendants' motion to dismiss the FAC.
Specifically, he dismisses without leave to amend the causes of
action for which the Plaintiffs were previously afforded an
opportunity to but did not amend. As such, he grants the
Defendants' motion as to those claims. He, however, declines to
dismiss the Plaintiffs' breach of contract claim against Omni, and
therefore denies the Defendants' motion as to that claim.
A full-text copy of the Court's Oct. 29, 2021 Order is available at
https://tinyurl.com/v2hjx7k7 from Leagle.com.
ONE OFF HOSPITALITY: Roberts Suit Seeks Unpaid Wages, Damages
-------------------------------------------------------------
Alexa Roberts, individually, and on behalf of all others similarly
situated, Plaintiff, v. One Off Hospitality Group, Ltd., Paul
Kahan, Donnie Madia and Eduard Seitan, Defendant, Case No.
21-cv-05868, (N.D. Ill., November 2, 2021), seeks an award of
unpaid wages and liquidated damages, injunctive and declaratory
relief, attendant penalties and attorneys' fees and costs under the
Fair Labor Standards Act and Illinois labor laws.
Defendants operate the "Publican," "Publican Quality Meats," "Big
Star," the "Violet Hour and Blackbird" restaurants where Roberts
was formerly employed as a bartender from 2017 to until July 2020.
Roberts regularly worked five days a week, including approximately
two double shifts per week. He claims to have regularly worked more
than forty hours a week without being paid overtime premium. [BN]
The Plaintiff is represented by:
Charles R. Ash, Esq.
SOMMERS SCHWARTZ, P.C.
One Towne Square, 17th Floor
Southfield, MI 48076
Phone: (248) 355-0300
Facsimile: (248) 746-4001
- and -
Trenton R. Kashima, Esq.
SOMMERS SCHWARTZ, P.C.
402 West Broadway, Suite 1760
San Diego, CA 92101
Telephone: (619) 762-2126
Facsimile: (619) 762-2127
OPPENHEIMER HOLDINGS: Faces Dawson Blvd Class Suit
--------------------------------------------------
Oppenheimer Holdings Inc. said in its Form 10-Q Report filed with
the Securities and Exchange Commission on October 29, 2021, for the
quarterly period ended September 30, 2021, that the company is
facing a class action suit initiated by Dawson Blvd, LLC.
On August 31, 2021, a complaint in a class action entitled 6694
Dawson Blvd, LLC, Individually and on Behalf of a Class of
Similarly Situated Persons v. Oppenheimer & Co. Inc., James Wallace
Woods, Michael J. Mooney, Britt Wright, William V. Conn, Jr., Conn
& Co. Tax Practice, LLC, Conn & Company Consulting, LLC and
Kathleen Lloyd, was filed in the U.S. District Court for the
Northern District of Georgia.
Plaintiff purports to represent a class of investors in Horizon
Private Equity, III, LLC.
Horizon is alleged to be a fraudulent scheme and plaintiff is
seeking unspecified damages sounding in violations of the Georgia
RICO statute, breach of fiduciary duty, procurement of breach of
fiduciary duty, negligent misrepresentation, aiding and abetting
fraud, unjust enrichment, punitive damages and attorneys' fees.
Plaintiff does not allege Oppenheimer received any of the funds
invested in Horizon, rather that Oppenheimer's failure to properly
supervise its employees allowed the alleged scheme to occur and
continue.
Oppenheimer intends to vigorously defend itself against the claims
made in this action.
Oppenheimer Holdings Inc. provides middle-market investment banking
and full service broker-dealer products and services. The Company
was founded in 1881 and is headquartered in New York, New York.
PERRY'S RESTAURANTS: Court Grants PSC's Bid to Dismiss Green Suit
-----------------------------------------------------------------
In the case, LANCE GREEN, individually and on behalf of all others
similarly situated, and ANDERSON KHALID, individually and on behalf
of all others similarly situated, Plaintiffs v. PERRY'S RESTAURANTS
LTD, PERRY'S STEAKHOUSE OF COLORADO, LLC, d/b/a PERRY'S STEAKHOUSE
AND GRILLE, AND CHRISTOPHER V. PERRY, Defendants, Civil Action No.
21-cv-0023-WJM-NRN (D. Colo.), Judge William J. Martinez of the
U.S. District Court for the District of Colorado:
(i) denied Defendants Perry's Restaurants LTD ("PRL")'s
Motion to Dismiss certain of Plaintiffs Lance Green and
Anderson Khalid's claims; and
(ii) granted Perry's Steakhouse of Colorado, LLC ("PSC")'s
Motion to Dismiss certain of Plaintiffs Lance Green and
Anderson Khalid's claims.
Background
The putative class action arises out of the Defendants' alleged
failure to pay the Plaintiffs' earned wages due to certain
tip-pooling policies. PRL is a limited partnership headquartered in
Houston, Texas, and PSC is a limited liability company and
subsidiary of PRL, located in Lone Tree, Colorado. The Plaintiffs
are individuals who were employed by the entity the Defendants as
servers for three years and paid a "direct cash wage" of less than
minimum wage.
The Plaintiffs initiated the action on Jan. 5, 2021. They filed an
Amended Complaint on Feb. 16, 2021, which is the operative
complaint. The Plaintiffs bring two claims: (1) failure to pay
minimum wage and engaging in unlawful kickbacks in violation of the
Fair Labor Standards Act ("FLSA"), 29 U.S.C. Sections 201, et seq.;
and (2) failure to pay minimum wage and provide meal and rest
periods in violation of Colorado state wage laws. The Plaintiffs
bring both claims against all three Defendants.
PRL filed its Motion on March 5, 2021. The Plaintiffs responded on
July 27, 2021, and PRL replied on Aug. 13, 2021. PSC also filed its
Motion on March 5, 2021. The Plaintiffs responded on March 26,
2021, and PSC replied on April 9, 2021.
Analysis
A. PRL's Motion to Dismiss or Transfer Venue
i. Rule 12(b)(3) Dismissal for Improper Venue
PRL seeks dismissal of the claims against it pursuant to Rule
12(b)(3) for improper venue, or, in the alternative, transfer of
the action to the United States District Court for the Southern
District of Texas.
The Plaintiffs argue that PRL's failure to challenge the Court's
exercise of personal jurisdiction deems it to reside in Colorado
for the purposes of the venue analysis, and therefore venue is
proper under Section 1391(b)(1). They argue that a substantial
portion of the events and omissions giving rise to the action arose
in this District, as Khalid was employed by PSC in Colorado and
suffered the alleged wage and hour violations there. Additionally,
they argue that PRL promulgates policies concerning wages and tips
which PSC implements in Colorado.
Having reviewed the allegations in the Amended Complaint, Judge
Martinez finds that the Plaintiffs have sufficiently alleged that
PRL's policies and practices caused impacts in Colorado, namely,
the purported wage and hour violations at issue. Because the
allegedly unlawful wage policies underlie the violations, there is
a nexus between PRL's actions and the violations at issue.
Given PRL's failure to challenge personal jurisdiction through the
filing of a Rule 12(b)(2) motion to dismiss -- in addition to the
clear and undeniable nexus between the alleged unlawful policies
and their effects in Colorado, Judge Martinez finds that venue is
proper in this District. Accordingly, PRL's Motion is denied to the
extent it seeks dismissal of the action pursuant to Rule 12(b)(3).
ii. Section 1404(a) Transfer of Venue
In the event PRL's Motion is denied as to dismissal, it seeks
transfer of the claims against it to the United States District
Court for the Southern District of Texas. Specifically, it argues
that the equities under Section 1404(a) necessitate transfer due to
considerations of convenience and fairness to PRL and witnesses.
Finding that none of the factors heavily favor transfer, Judge
Martinez concludes that the equities favor the action remaining in
the District, the forum that the Plaintiffs have properly selected.
As such, PRL's Motion is denied in its entirety.
B. PSC's Partial Motion to Dismiss
PSC argues that to the extent Green or any class members employed
at other restaurants assert claims against it, such claims fail
because PSC was not their employer within the meaning of the FLSA.
Specifically, it contends that its only location is in Lone Tree,
Colorado, and Khalid is the only named plaintiff who was employed
by PSC. In response, the Plaintiffs argue that all the Defendants
were collectively their employers, and therefore PSC may be held
liable by all the Plaintiffs for FLSA violations, regardless of
whether those Plaintiffs physically worked at PSC in Colorado.
Considering the complete lack of factual allegations supporting any
of the relevant factors of the economic realities analysis, Judge
Martinez concludes that no employment relationship exists between
PSC and Green or any other putative class member who was not
directly employed by PSC. PSC's Motion is therefore granted, and
the claims against it are dismissed to the extent they are brought
by Green or any other class member who was not employed at PSC's
Colorado location. As no employment relationship exists or ever
existed between PSC and any Plaintiffs who did not at any time work
at that restaurant, amendment would be futile, and the dismissal is
therefore with prejudice as to any claims brought by such
Plaintiffs and against PSC.
Conclusion
For the reasons set forth, Judge Martinez denied PRL's Motion and
granted PSC's Motion. The Plaintiffs' FLSA claims against PSC are
dismissed with prejudice to the extent they are brought by Green or
any putative class member who was not employed by PSC.
A full-text copy of the Court's Oct. 29, 2021 Order is available at
https://tinyurl.com/3xf4kuny from Leagle.com.
PORTLAND GENERAL: March 11, 2022 Settlement Fairness Hearing Set
----------------------------------------------------------------
Portland General Electric Company said in its Form 10-Q Report
filed with the Securities and Exchange Commission on October 29,
2021, for the quarterly period ended September 30, 2021, that the
settlement fairness hearing in the class action suit entitled, In
re Portland General Electric Company Securities Litigation, is set
for March 11, 2022.
During September and October 2020, three putative class action
complaints were filed in U.S. District Court for the District of
Oregon against PGE and certain of its officers, captioned Hessel v.
Portland General Electric Co., No. 20-cv-01523, Cannataro v.
Portland General Electric Co., No. 3:20-cv-01583, and Public
Employees' Retirement System of Mississippi v. Portland General
Electric Co., No. 20-cv-01786.
Two of these actions were filed on behalf of purported purchasers
of PGE stock between April 24, 2020, and August 24, 2020; a third
action was filed on behalf of purported purchasers of PGE stock
between February 13, 2020, and August 24, 2020.
During the fourth quarter of 2020, the plaintiff in Hessel
voluntarily dismissed his case and the Court consolidated Cannataro
and PERS of Mississippi into a single case captioned In re Portland
General Electric Company Securities Litigation and appointed Public
Employees' Retirement System of Mississippi lead plaintiff.
On January 11, 2021, Lead Plaintiff filed an amended complaint
asserting causes of action arising under Sections 10(b) and 20(a)
of the Securities Exchange Act of 1934 for alleged misstatements
and omissions regarding, among other things, PGE's alleged lack of
sufficient internal controls and risks associated with PGE's
trading activity in wholesale electric markets, purportedly on
behalf of purchasers of PGE stock between February 13, 2020, and
August 24, 2020.
The Amended Complaint demands a jury trial and seeks compensatory
damages of an unspecified amount and reimbursement of plaintiffs'
costs, and attorneys' and expert fees.
On March 12, 2021, the defendants filed a motion to dismiss the
Amended Complaint.
On July 11, 2021, the parties entered into a Stipulation of
Settlement to fully resolve the Securities Action. The Agreement,
which is subject to Court approval, provides for a settlement
payment of $6.75 million in exchange for the complete dismissal
with prejudice and a release of all claims against the defendants
in connection with the Securities Action, without any admission of
fault or wrongdoing by the defendants.
On July 16, 2021, the Lead Plaintiff filed an application for Court
approval of the settlement.
In an order dated August 10, 2021, the Court granted preliminary
approval of the settlement, stayed all proceedings in the action
except with respect to settlement, and scheduled a final settlement
approval hearing for March 11, 2022.
The settlement payment was paid by the Company's insurance provider
under its insurance policy. In light of the Agreement, the Court
removed the hearing on the defendants' pending motion to dismiss
from the calendar.
Portland General Electric Company, an integrated electric utility
company, engages in the generation, wholesale purchase,
transmission, distribution, and retail sale of electricity in the
state of Oregon. The company was founded in 1930 and is
headquartered in Portland, Oregon.
PROCTER & GAMBLE: Bid to Move, Dismiss or Stay Drake Suit Denied
----------------------------------------------------------------
In the case, MICHAEL DRAKE, Plaintiff v. THE PROCTER & GAMBLE
COMPANY, Defendant, Case No. 21-cv-279-DWD (S.D. Ill.), Judge David
W. Dugan of the U.S. District Court for the Southern District of
Illinois denied P&G's Motion to Stay, Transfer, or Dismiss.
Introduction
The case is one of four duplicative class actions filed against P&G
currently pending in federal courts in New York. The Defendant asks
the Court to transfer, dismiss, or stay all proceedings and
deadlines in the action pending resolution of the previously filed,
substantially-related class action currently pending in the
Southern District of New York, i.e., Nieves v. The Procter & Gamble
Co., No. 7:21-cv-186-CS ("the SDNY Action.").
Background
The Plaintiff is an Illinois resident who alleges that he purchased
the Defendant's "Crest Gum & Enamel Repair" toothpaste in Illinois,
and that the toothpaste contained false and misleading
representations. The Defendant is a resident of Ohio. The Plaintiff
filed his complaint in the Third Judicial Circuit Madison County,
Illinois on Feb. 1, 2021. The Defendant removed the action to the
Court on March 12, 2021 asserting diversity jurisdiction under 28
U.S.C. Section 1332(d)(2)(A).
In his complaint, the Plaintiff alleges that the Defendant made
false and misleading representations concerning two of its
products: Crest Gum & Enamel Repair (both, the "intensive clean"
and "advanced whitening" varieties) and its Oral-B Gum & Enamel
Repair toothpaste. The Plaintiff brings three counts against the
Defendant for violations of the Illinois Consumer Fraud and
Deceptive Business Practice Act, 815 ILCS Section 505/1, et seq.,
and for unjust enrichment.
The Plaintiff seeks to certify a class consisting of "all persons
in the state of Illinois who purchased one or more of the Class
Products in Illinois during the Class Period." He seeks an award of
compensatory damages, injunctive relief, punitive damages, and
attorney's fees.
On Jan. 9, 2021, and one-month prior to the Plaintiff initiating
the lawsuit, Plaintiff Carmen Nieves filed a punitive class action
against the Defendant in the Southern District of New York. Similar
punitive class actions were later filed against the Defendant on
April 14, 2021 in the Northern District of California (Lichtinger
v. The Procter & Gamble Co., No. 3:21-CV-02680-MMC (N.D. Cal.)),
and on May 4, 2021 in the Middle District of Florida (Keirsted v.
The Procter & Gamble Co., No. 6:21-CV-00778-RBD-GJK (M.D. Fla.)).
Lichtinger and Keirsted voluntarily transferred their cases to the
Southern District of New York in order to consolidate their cases
with the Nieves case.
On Sept. 2, 2021, the consolidated plaintiffs filed a master class
action complaint in the SDNY Action. The consolidated complaint
also asserts that the Defendant's "Crest Gum & Enamel Repair"
toothpaste contained false and misleading representations. The
consolidated plaintiffs bring counts for violations of Florida, New
York, and California consumer protection statutes, in addition to
breaches of express warranty, implied warranty of merchantability,
and the Magnuson Moss Warranty Act, negligent misrepresentation,
fraud, and unjust enrichment.
They seek to certify three subclasses: New York, Florida, and
California, with class members consisting of "all persons in New
York, Florida, and California who, from the beginning of the
applicable limitations period through the date of trial, purchased
one or more of Defendant's Products for personal use and not for
resale." They seek preliminary and injunctive relief, restitution,
disgorgement, monetary and statutory damages.
On Oct. 21, 2021, the SDNY Court held a pre-motion conference on
the Defendant's request to file a motion to dismiss the
consolidated complaint, and a briefing schedule was set allowing
for the Defendant to file a motion to dismiss on Nov. 12, 2021. The
Defendant now asks the Court to transfer, dismiss, or stay all
proceedings and deadlines in the action pending resolution of the
SDNY Action under the "first-to-file" rule or otherwise for the
convenience of the parties.
Discussion
Judge Dugan opines that the Defendant has not made a clear case of
hardship or inequity in the case. Moreover, the Plaintiff's counsel
has represented that the Plaintiff is willing to work with the
attorneys in the SDNY Action to avoid unnecessary duplication. At
this time, the development of a joint discovery plan may prove more
useful in mitigating any potential hardships on Defendant and would
better serve the interests of justice than a limitless stay.
Given these facts, Judge Dugan finds that the interests of justice
would not be served by staying the case pending resolution of the
SDNY Action at this time. However, should different circumstances
arise during the course of the litigation which may warrant the
imposition of a stay, the parties are granted leave to seek such
relief from the Court as may be appropriate.
Conclusion
For the foregoing reasons, Judge Dugan denied the Defendant's
Motion. He will issue separate opinions on the Defendant's Motion
to Dismiss and the parties' Motion for Protective Order and Entry
of ESI Protocol.
A full-text copy of the Court's Oct. 29, 2021 Memorandum & Opinion
is available at https://tinyurl.com/wza66bat from Leagle.com.
ROBINHOOD MARKETS: Bid to Junk Short Squeeze Trading Suit Pending
-----------------------------------------------------------------
Robinhood Markets, Inc. said in its Form 10-Q Report filed with the
Securities and Exchange Commission on October 29, 2021, for the
quarterly period ended September 30, 2021, that the motion to
dismiss filed in the consolidated class action suit entitled, In
re: January 2021 Short Squeeze Trading Litigation, is pending.
Approximately 55 putative class actions and four individual actions
have been filed against one or more of the company (RHM), Robinhood
Financial LLC (RHF) and Robinhood Securities, LLC (RHS) in various
federal and state courts relating to the Early 2021 Trading
Restrictions.
In April 2021, the Judicial Panel on Multidistrict Litigation
entered an order centralizing the federal cases identified in a
motion filed by certain plaintiffs to transfer and coordinate or
consolidate the actions filed in connection with the Early 2021
Trading Restrictions in the United States District Court for the
Southern District of Florida captioned In re: January 2021 Short
Squeeze Trading Litigation (the "MDL").
In May 2021, the court appointed interim lead plaintiffs' counsel
for certain claims. In July 2021, interim lead plaintiffs' counsel
filed two consolidated complaints seeking monetary damages: the
first complaint asserts a federal antitrust claim; the second
complaint asserts negligence and breach of fiduciary duty claims.
In August 2021, defendants moved to dismiss both of these
consolidated complaints.
In September 2021, interim lead plaintiffs' counsel filed an
amended consolidated complaint against RHM, RHF and RHS for the
negligence and breach of fiduciary duty claims, adding new claims
for tortious interference with contract and business relationship,
civil conspiracy and breach of the covenant of good faith and fair
dealing and implied duty of care.
In October 2021, RHM, RHF and RHS moved to dismiss the amended
consolidated complaint for the state law claims.
Additionally, the court appointed a lead plaintiff and lead counsel
for federal securities claims pursuant to the Private Securities
Litigation Reform Act of 1995, which will proceed separately.
Robinhood Markets, Inc. is an American financial services company
headquartered in Menlo Park, California, known for pioneering
commission-free trades of stocks and exchange-traded funds via a
mobile app introduced in March 2015.
ROBINHOOD MARKETS: Bid to Transfer Order Flow Litigation Pending
----------------------------------------------------------------
Robinhood Markets, Inc. said in its Form 10-Q Report filed with the
Securities and Exchange Commission on October 29, 2021, for the
quarterly period ended September 30, 2021, that the company and the
market-maker defendants moved to transfer the case to the Northern
District of California, or in the alternative, to dismiss the
complaint.
In May 2019, the Securities and Exchange Commission's Division of
Enforcement (SEC's Enforcement Division) commenced an investigation
into Robinhood Financial LLC's (RHF's) best execution and payment
for order flow ("PFOF") practices, as well as statements concerning
its sources of revenue, including the fact that, in FAQs on the
company's website describing how it made money, and in certain
communications with customers addressing the same issue, RHF had
omitted PFOF when it described its revenue sources.
On December 17, 2020, RHF, on a neither admit nor deny basis,
consented to the entry of an SEC order (i) requiring RHF to cease
and desist from committing or causing any violations and any future
violations of Sections 17(a)(2) and 17(a)(3) of the Securities Act
and Section 17(a) of the Exchange Act and Rule 17a-4 thereunder;
(ii) censuring RHF; and (iii) requiring RHF to pay a $65 million
civil penalty in December 2020. RHF paid the $65 million penalty in
cash and also agreed to engage an independent compliance
consultant.
Beginning in December 2020, seven putative securities fraud class
action lawsuits have been filed against RHM, RHF and/or Robinhood
Securities, LLC (RHS).
The lawsuits generally allege that the company violated the duty of
best execution and misled putative class members by publishing
misleading statements and omissions in customer communications
relating to the execution of trades and revenue sources (including
PFOF).
One of the cases was voluntarily dismissed without prejudice and
five cases have been consolidated under the caption In re Robinhood
Order Flow Litigation in the United States District Court for the
Northern District of California.
An amended consolidated complaint was filed in In re Robinhood
Order Flow Litigation in May 2021, asserting a claim for violations
of Section 10(b) of the Securities Exchange Act of 1934 and various
state law causes of action, and seeking damages, restitution,
disgorgement and other relief.
In June 2021, the company filed a motion to dismiss the amended
consolidated complaint and a motion to deny class certification,
which remain pending.
The final lawsuit, filed in the United States District Court for
the Southern District of Florida against RHF as well as several
market makers, alleges that RHF breached its fiduciary duties to
customers and that the market makers aided and abetted RHF's
breach.
In October 2021, RHF and the market-maker defendants moved to
transfer the case to the Northern District of California, or in the
alternative, to dismiss the complaint.
Robinhood Markets, Inc. is an American financial services company
headquartered in Menlo Park, California, known for pioneering
commission-free trades of stocks and exchange-traded funds via a
mobile app introduced in March 2015.
ROBINHOOD MARKETS: Class Cert. Bid in Service Outage Suit Pending
-----------------------------------------------------------------
Robinhood Markets, Inc. said in its Form 10-Q Report filed with the
Securities and Exchange Commission on October 29, 2021, for the
quarterly period ended September 30, 2021, that the motion for
class certification in the consolidated putative class action suit
entitled, In re Robinhood Outage Litigation, is pending.
Beginning in March 2020, 15 putative class actions and one
individual action were filed against the company (RHM), Robinhood
Financial LLC (RHF), and Robinhood Securities, LLC (RHS) in state
and federal district courts relating to service outages on the
company's stock trading platform on March 2-3, 2020 and March 9,
2020 (the "March 2020 Outages").
One of the putative class actions and the individual action were
voluntarily dismissed following settlements between the parties.
Thirteen of the remaining putative class actions have been
consolidated as In re Robinhood Outage Litigation in the United
States District Court for the Northern District of California.
The one remaining putative class action has been stayed by
agreement of the parties.
The lawsuits generally allege that putative class members were
unable to execute trades during the March 2020 Outages because the
company's platform was inadequately designed to handle customer
demand and RHM, RHF, and RHS failed to implement appropriate backup
systems.
The lawsuits include, among other things, claims for breach of
contract, negligence, gross negligence, breach of fiduciary duty,
unjust enrichment and violations of certain California consumer
protection statutes.
The lawsuits generally seek damages, restitution, and/or
disgorgement, as well as declaratory and injunctive relief.
In October 2021, plaintiffs filed a motion for class certification,
which RHM, RHF, and RHS intend to oppose.
Robinhood Markets, Inc. is an American financial services company
headquartered in Menlo Park, California, known for pioneering
commission-free trades of stocks and exchange-traded funds via a
mobile app introduced in March 2015.
ROBINHOOD MARKETS: Court Narrows Claims in Mehta Class Suit
-----------------------------------------------------------
Robinhood Markets, Inc. said in its Form 10-Q Report filed with the
Securities and Exchange Commission on October 29, 2021, for the
quarterly period ended September 30, 2021, that motion to dismiss
the second amended complaint initiated by Siddharth
Mehta has been granted in part and denied in part.
On January 8, 2021, a putative class action was filed in California
Superior Court (Santa Clara County) against Robinhood Financial LLC
(RHF) and Robinhood Securities, LLC (RHS) by Siddharth Mehta,
purportedly on behalf of approximately 2,000 Robinhood customers
whose accounts were allegedly accessed by unauthorized users.
RHF and RHS removed this action to the United States District Court
for the Northern District of California.
Plaintiffs generally allege that RHF and RHS breached commitments
made and duties owed to customers to safeguard customer data and
assets and seek monetary damages and injunctive relief.
In March 2021, RHF and RHS filed a motion to dismiss the amended
complaint, which was granted in part and denied in part in May
2021.
A second amended complaint was filed by the plaintiffs in May 2021.
In June 2021, RHF and RHS filed a motion to dismiss the second
amended complaint, which was granted in part and denied in part in
September 2021.
Robinhood Markets, Inc. is an American financial services company
headquartered in Menlo Park, California, known for pioneering
commission-free trades of stocks and exchange-traded funds via a
mobile app introduced in March 2015.
ROBINHOOD MARKETS: Court Transfers Gordon Class Suit to Washington
------------------------------------------------------------------
Robinhood Markets, Inc. said in its Form 10-Q Report filed with the
Securities and Exchange Commission on October 29, 2021, for the
quarterly period ended September 30, 2021, that the motion to
transfer the putative class action suit initiated by Isaac Gordon
to the Western District of Washington, has been granted.
In October 2019, a putative class action was filed by Isaac Gordon
against Robinhood Financial LLC (RHF) and the company (RHM) in the
Superior Court for the State of Washington, County of Spokane.
The complaint alleged that RHF and RHM initiated or assisted in the
transmission of commercial electronic text messages to Washington
State residents without their consent in violation of Washington
State law.
The action was removed to the Eastern District of Washington.
In January 2021, the court granted the plaintiff's motion for class
certification. In June 2021, RHF filed a motion to decertify the
class and disqualify class counsel.
In July 2021, the court granted RHF's motion to decertify the
class, denied the motion to disqualify class counsel, and remanded
the case to state court.
In August 2021, a new, substantially similar putative class action
was filed by Cooper Moore against RHF in the U.S. District Court
for the Northern District of California.
In September 2021, RHF filed motions to transfer the case to the
Western District of Washington and to dismiss the complaint.
In October 2021, the court granted the motion to transfer the case
and declined to rule on the motion to dismiss.
Robinhood Markets, Inc. is an American financial services company
headquartered in Menlo Park, California, known for pioneering
commission-free trades of stocks and exchange-traded funds via a
mobile app introduced in March 2015.
RPM PIZZA: Shortchanges Driver's Expense Reimbursements, Suit Says
------------------------------------------------------------------
Chris Lunsford, on behalf of himself and those similarly situated,
Plaintiff, v. RPM Pizza, LLC, RPM Pizza Ventures, LLC, RPM Pizza
Ventures II, LLC, RPM Pizza - NOLA, LLC, RPM Pizza Acadiana, LLC,
RPM Pizza Baton Rouge, LLC, RPM Pizza Central MS, LLC, RPM Pizza
Florida, LLC, RPM Pizza Greater New Orleans, LLC, RPM Pizza Gulf
Coast, LLC, RPM Pizza Holdings, LLC, RPM Pizza Midwest, LLC, RPM
Pizza NW Louisiana, LLC, Glenn Mueller, Richard Mueller IIT, John
Doe 1-10, and John Doe Corp. 1-10, Defendants, Case No.
21-cv-00340, (S.D. Miss., November 2, 2021), seeks unpaid overtime
compensation, liquidated damages, attorneys' fees and costs under
the Fair Labor Standards Act.
Defendants own over 175 Domino's stores located all over the
country. Lunsford is a delivery driver for a Domino's store in
South Bend, Indiana. He claims to be inadequately reimbursed for
delivery-related expenses, thereby rendering his pay below the
legally mandated minimum wages for all hours worked. He also
alleges RPM of illegally taking a "tip-credit." [BN]
Plaintiff is represented by:
Colby R. Langston, Esq.
LANGSTON & WEEMS PLLC
1323 28th Avenue, Suite A
Gulfport, MS 39501
Telephone: (228) 222-2711
Facsimile: (228) 206-0171
Email: colby@langstonweems.com
- and -
Andrew R. Biller, Esq.
BILLER & KIMBLE, LLC
4200 Regent Street, Suite 200
Columbus, OH 43219
Telephone: (614) 604-8759
Facsimile: (614) 340-4620
Email: abiller@billerkimble.com
- and -
Andrew P. Kimble, Esq.
Philip J. Krzeski, Esq.
Louise M. Roselle, Esq.
BILLER & KIMBLE, LLC
8044 Montgomery Rd., Ste. 515
Cincinnati, OH 45236
Telephone: (513) 715-8711
Facsimile: (614) 340-4620
Email: akimble@billerkimble.com
pkrzeski@billerkimble.com
lroselle@billerkimble.com
RUTH'S HOSPITALITY: Discovery in Guerrero Suit Ongoing
------------------------------------------------------
Ruth's Hospitality Group, Inc. said in its Form 10-Q Report filed
with the Securities and Exchange Commission on October 29, 2021,
for the quarterly period ended September 26, 2021, that discovery
is ongoing in Quiroz Guerrero, et al. v. Ruth's Hospitality Group,
Inc., et al.; Case No RIC1804127.
On February 26, 2018, a former restaurant hourly employee filed a
class action lawsuit in the Superior Court of the State of
California for the County of Riverside, alleging that the Company
violated the California Labor Code and California Business and
Professions Code, by failing to pay minimum wages, pay overtime
wages, permit required meal and rest breaks, and provide accurate
wage statements, among other claims.
On September 2, 2020, the class action lawsuit was amended to
include two additional proposed class representatives. This lawsuit
seeks unspecified penalties under the California's Private
Attorney's General Act in addition to other monetary payments
(Quiroz Guerrero, et al. v. Ruth's Hospitality Group, Inc., et al.;
Case No RIC1804127).
The parties are currently engaged in discovery and the court has
set a briefing schedule on class certification for mid-2022.
Although the ultimate outcome of this matter, including any
possible loss, cannot be predicted or reasonably estimated at this
time, the company have vigorously defended this matter and intend
to continue doing so.
Additionally, on July 29, 2021 and September 17, 2021, another
former restaurant hourly employee filed complaints in the Superior
Court of the State of California for the County of San Francisco
and the County of Los Angeles, alleging causes of action
substantially similar to the allegations made in the Quiroz
Guerrero action, which cases may be consolidated with the Quiroz
Guerrero action.
Ruth's Hospitality Group, Inc., together with its subsidiaries,
develops, operates, and franchises fine dining restaurants. Its
restaurants offer food and beverage products to special occasion
diners and frequent customers, as well as business clientele. The
Company operates restaurants under the Ruth's Chris Steak House
trade name. The Company was founded in 1965 and is headquartered in
Winter Park, Florida.
SAMSUNG ELECTRONICS: McCoy Slams Defective Hinges on Chromebook
---------------------------------------------------------------
Tony McCoy, individually and on behalf of all others similarly
situated, Plaintiff, v. Samsung Electronics America, Inc.,
Defendant, Case No. 21-cv-19470 (D. N.J., November 1, 2021), seeks
compensatory, statutory and punitive damages, prejudgment interest,
restitution and all other forms of equitable monetary relief,
reasonable attorneys' fees and expenses and costs of suit resulting
from fraud, unjust enrichment, for breach of express and implied
warranty, and for violation of the Magnuson-Moss Warranty Act.
Samsung designed, manufactured, marketed, sold, and distributed the
Chromebook Plus 2-in-1 portable computer, with a traditional
"clamshell" laptop with a "360-degree rotating touchscreen" that
can be folded to the back of the chassis along two hinges so the
device can be used as a tablet and in various positions. McCoy
claims that its hinges are detached from their mounting point
within the display and break through the screen when the display is
moved and that attempting to open or change the display angle
causes the screen to split or rupture. [BN]
The Plaintiff is represented by:
Gary S. Graifman, Esq.
KANTROWITZ GOLDHAMER & GRAIFMAN, P.C.
747 Chestnut Ridge Road
Chestnut Ridge, NY 10977
Tel: (845) 356-2570
Fax: (845) 356-4335
Email: ggraifman@kgglaw.com
- and -
Nicholas A. Migliaccio, Esq.
Jason S. Rathod, Esq.
MIGLIACCIO & RATHOD LLP
412 H Street NE, Ste. 302
Washington, DC 20002
Tel: (202) 470-3520
Email: nmigliaccio@classlawdc.com
jrathos@classlawdc.com
SENTINEL INSURANCE: Protege Appeals Insurance Suit Dismissal
------------------------------------------------------------
Plaintiff Protege Restaurant Partners LLC filed an appeal from a
court ruling entered in the lawsuit entitled PROTEGE RESTAURANT
PARTNERS LLC, on Behalf of Itself and All Others Similarly
Situated, Plaintiff v. SENTINEL INSURANCE COMPANY, LIMITED, d/b/a
THE HARTFORD, Defendant, Case No. 20-cv-03674-BLF, in the U.S.
District Court for the Northern District of California.
The case arises from a dispute over the application of a "business
interruption" insurance policy to measures taken in response to
recent public health orders that required businesses to operate at
a limited capacity. Plaintiff Protege, individually and on behalf
of all other similarly situated entities, brings the class action
against Defendant Sentinel for the Defendant's refusal to pay
COVID-19 related claims based on the insurance policy it sold to
Plaintiff and the Class.
The Plaintiff asserts claims for a declaratory judgment and for
breach of contract based on Business Income coverage (Counts I,
II), Civil Authority coverage (Counts III, IV), Extra Expense
coverage (Counts V, VI), Sue and Labor coverage (Counts VII, VIII),
Virus Endorsement coverage (Counts IX, X), and Breach of Implied
Covenant of Good Faith and Fair Dealing (Counts XI, XII).
As reported in the Class Action Reporter on Feb. 18, 2021, the
District Court for the Northern District of California granted the
Defendant's motion to dismiss with leave to amend. The Court
determined that the motion is appropriate for disposition without
oral argument and, thus, is deemed submitted. Accordingly, the
hearing that was set for February 28, 2021, was vacated.
On March 1, 2021, the Plaintiff filed second amended class action
complaint for breach of contract and declaratory judgment and
injunctive relief.
On March 29, 2021, the Defendant filed a motion to dismiss
Plaintiff's second amended class action complaint under Federal
Rules of Civil Procedure 12(b)(1) & 12(b)(6).
The Plaintiff currently seeks a review of the Order dated September
28, 2021 wherein the Court granted Defendant's Rule 12(b)(6) motion
to dismiss for failure to state a claim, and denied without
prejudice Defendant's Rule 12(b)(1) motion for lack of personal
jurisdiction and standing as to Plaintiff's nationwide class
claims.
The appellate case is captioned as Protege Restaurant Partners LLC
v. Sentinel Insurance Company, Ltd., Case No. 21-16814, in the
United States Court of Appeals for the Ninth Circuit, filed on Oct.
28, 2021.
The briefing schedule in the Appellate Case states that:
-- Appellant Protege Restaurant Partners LLC Mediation
Questionnaire was due on November 4, 2021;
-- Transcript shall be ordered by November 29, 2021;
-- Transcript is due on December 27, 2021;
-- Appellant Protege Restaurant Partners LLC opening brief is
due on February 7, 2022;
-- Appellee Sentinel Insurance Company, Limited answering brief
is due on March 7, 2022; and
-- Appellant's optional reply brief is due 21 days after service
of the answering brief.[BN]
Plaintiff-Appellant PROTEGE RESTAURANT PARTNERS LLC, on Behalf of
Itself and All Other Similarly Situated, is represented by:
Seth Ard, Esq.
SUSMAN GODFREY LLP
1301 Avenue of the Americas, 32nd Floor
New York, NY 10019
Telephone: (212) 336-8330
E-mail: sard@susmangodfrey.com
- and -
Jesse-Justin Cuevas, Esq.
Marc M. Seltzer, Esq.
Steven G. Sklaver, Esq.
SUSMAN GODFREY LLP
1900 Avenue of the Stars
Los Angeles, CA 90067-4405
Telephone: (310) 789-3100
E-mail: jcuevas@susmangodfrey.com
mseltzer@susmangodfrey.com
ssklaver@susmangodfrey.com
Defendant-Appellee SENTINEL INSURANCE COMPANY, LIMITED, DBA The
Hartford, is represented by:
Anthony Anscombe, Esq.
STEPTOE & JOHNSON, LLP
227 W Monroe Street, Suite 4700
Chicago, IL 60606
Telephone: (312) 577-1265
E-mail: aanscombe@steptoe.com
- and -
Johanna Dennehy, Esq.
STEPTOE & JOHNSON, LLP
1330 Connecticut Avenue, NW
Washington, DC 20036
Telephone: (202) 429-5515
E-mail: jdennehy@steptoe.com
- and -
Ashwin J. Ram, Esq.
STEPTOE & JOHNSON, LLP
633 W 5th Street, Suite 1900
Los Angeles, CA 90071
Telephone: (213) 439-9443
E-mail: aram@steptoe.com
- and -
Alan E. Schoenfeld, Esq.
WILMER CUTLER PICKERING HALE AND DORR LLP
7 World Trade Center
250 Greenwich Street
New York, NY 10007
Telephone: (212) 937-7294
E-mail: alan.schoenfeld@wilmerhale.com
SERVICE CORP: Moulton Class Action Considered Resolved
------------------------------------------------------
Service Corporation International said in its Form 10-Q Report
filed with the Securities and Exchange Commission on October 28,
2021, for the quarterly period ended September 30, 2021, that the
class action suit entitled, Karen Moulton, Individually and on
behalf of all others similarly situated v. Stewart Enterprises,
Inc., Service Corporation International and others, is now
considered resolved.
Karen Moulton, Individually and on behalf of all others similarly
situated v. Stewart Enterprises, Inc., Service Corporation
International and others; Case No. 2013-5636; in the Civil District
Court Parish of New Orleans, Louisiana.
This case was filed as a class action in June 2013 against an SCI
subsidiary in connection with SCI's acquisition of Stewart
Enterprises, Inc.
The plaintiffs allege that SCI aided and abetted breaches of
fiduciary duties by Stewart Enterprises and its board of directors
in negotiating the combination of Stewart Enterprises with a
subsidiary of SCI.
The plaintiffs seek damages concerning the combination.
The company filed exceptions to the plaintiffs' complaint that were
granted in June 2014. Thus, subject to appeals, SCI will no longer
be party to the suit.
The case has continued against the company's subsidiary Stewart
Enterprises and its former individual directors. However, in
October 2016, the court entered a judgment dismissing all of
plaintiffs' claims.
Plaintiffs have appealed the dismissal.
On May 6, 2021, the Louisiana Court of Appeals affirmed the
dismissal. Plaintiffs applied to the Louisiana Supreme Court to
review the dismissal and the application was denied.
SCI said "We consider this matter resolved."
Service Corporation International is an American provider of
funeral goods and services as well as cemetery property and
services. It is headquartered in Neartown, Houston, Texas. SCI
operates more than 1500 funeral homes and 400 cemeteries in 43
states, eight Canadian provinces, and Puerto Rico.
SIRIUS XM: Appeal in Flo & Eddie Class Action Remains Stayed
------------------------------------------------------------
Sirius XM Holdings Inc. said in its Form 10-Q Report filed with the
Securities and Exchange Commission on October 28, 2021, for the
quarterly period ended September 30, 2021, that the appeal in the
Flo & Eddie initiated class action, remains stayed.
On October 2, 2014, Flo & Eddie Inc. filed a class action suit
against Pandora Media, LLC (Pandora) in the federal district court
for the Central District of California.
The complaint alleges a violation of California Civil Code Section
980, unfair competition, misappropriation and conversion in
connection with the public performance of sound recordings recorded
prior to February 15, 1972 (referred to as, "pre-1972 recordings").
On December 19, 2014, Pandora filed a motion to strike the
complaint pursuant to California's Anti-Strategic Lawsuit Against
Public Participation ("Anti-SLAPP") statute, which following denial
of Pandora's motion was appealed to the Ninth Circuit Court of
Appeals.
In March 2017, the Ninth Circuit requested certification to the
California Supreme Court on the substantive legal questions. The
California Supreme Court accepted certification.
In May 2019, the California Supreme Court issued an order
dismissing consideration of the certified questions on the basis
that, following the enactment of the Orrin G. Hatch-Bob Goodlatte
Music Modernization Act, Pub. L. No. 115-264, 132 Stat. 3676 (2018)
(the "MMA"), resolution of the questions posed by the Ninth Circuit
Court of Appeals was no longer "necessary to . . . settle an
important question of law."
The MMA grants a potential federal preemption defense to the claims
asserted in the aforementioned lawsuits. In July 2019, Pandora took
steps to avail itself of this preemption defense, including making
the required payments under the MMA for certain of its uses of
pre-1972 recordings.
Based on the federal preemption contained in the MMA (along with
other considerations), Pandora asked the Ninth Circuit to order the
dismissal of the Flo & Eddie, Inc. v. Pandora Media, Inc. case. On
October 17, 2019, the Ninth Circuit Court of Appeals issued a
memorandum disposition concluding that the question of whether the
MMA preempts Flo and Eddie's claims challenging Pandora's
performance of pre-1972 recordings "depends on various unanswered
factual questions" and remanded the case to the District Court for
further proceedings.
In October 2020, the District Court denied Pandora's renewed motion
to dismiss the case under California's anti-SLAPP statute, finding
the case no longer qualified for anti-SLAPP due to intervening
changes in the law, and denied Pandora's renewed attempt to end the
case.
Alternatively, the District Court ruled that the preemption defense
likely did not apply to Flo & Eddie's claims, in part because the
District Court believed that the MMA did not apply retroactively.
Pandora promptly appealed the District Court's decision to the
Ninth Circuit, and moved to stay appellate briefing pending the
appeal of a related case against Sirius XM. On January 13, 2021,
the Ninth Circuit issued an order granting the stay of appellate
proceedings pending the resolution of a related case against Sirius
XM.
On August 23, 2021, the United States Court of Appeals for the
Ninth Circuit issued an Opinion in a related case, Flo & Eddie Inc.
v. Sirius XM Radio Inc.
The related case also concerned a class action suit brought by Flo
& Eddie Inc. regarding the public performance of pre-1972
recordings under California law. Relying on California's copyright
statute, Flo & Eddie argued that California law gave it the
"exclusive ownership" of its pre-1972 songs, including the right of
public performance.
The Ninth Circuit reversed the District Court's grant of partial
summary judgment to Flo & Eddie Inc. The Ninth Circuit held that
the District Court in this related case erred in concluding that
"exclusive ownership" under California's copyright statute included
the right of public performance.
The Ninth Circuit remanded the case for entry of judgment
consistent with the terms of the parties' contingent settlement
agreement, and on October 6, 2021, the parties to the related case
stipulated to its dismissal with prejudice.
Sirius XM Holdings Inc. provides satellite radio services in the
United States. The company broadcasts music, sports, entertainment,
comedy, talk, news, traffic, and weather channels, including
various music genres ranging from rock, pop and hip-hop, country,
dance, jazz, Latin, and classical; live play-by-play sports from
principal leagues and colleges; multitude of talk and entertainment
channels for various audiences; national, international, and
financial news; and limited-run channels. The company was founded
in 1990 and is headquartered in New York, New York. Sirius XM
Holdings Inc. is a subsidiary of Liberty Media Corporation.
SKECHERS USA: Wilk Putative Class Suit Settled
----------------------------------------------
Skechers U.S.A., Inc. said in its Form 10-Q Report filed with the
Securities and Exchange Commission on November 3, 2021, for the
quarterly period ended September 30, 2021, that the putative class
action suit initiated by Ealeen Wilk has been settled on terms that
do not have a material adverse impact on the company's results of
operations or financial position."
On September 10, 2018, Ealeen Wilk filed a putative class action
lawsuit against the Company in the United States District Court for
the Central District of California, Case No. 5:18-cv-01921,
alleging violations of the California Labor Code, including unpaid
overtime, unpaid wages due upon termination and unfair business
practices.
The complaint seeks actual, compensatory, special and general
damages; penalties and liquidated damages; restitutionary and
injunctive relief; attorneys' fees and costs; and interest as
permitted by law.
On July 5, 2019, the court granted, in part, plaintiff's motion for
conditional certification of a Fair Labor Standards Act (FLSA)
collective action.
On July 22, 2019, the parties submitted to the court an agreed upon
notice to be sent to members of the collective. The parties are
delaying the mailing of the Belaire-West privacy opt out notice
until after mediation.
The parties have agreed to an informal stay of discovery and have
stipulated to continue all relevant discovery and motion deadlines
accordingly.
Skechers said, "This matter has been settled on terms that do not
have a material adverse impact on our results of operations or
financial position."
Skechers U.S.A., Inc. designs, develops, markets, and distributes
footwear for men, women, and children; and performance footwear for
men and women under the Skechers GO brand worldwide. It operates
through three segments: Domestic Wholesale Sales, International
Wholesale Sales, and Retail Sales. Skechers U.S.A., Inc. was
founded in 1992 and is headquartered in Manhattan Beach,
California.
SUN COMMUNITIES: Seeks 11th Cir. Review in Royal Palm Class Suit
----------------------------------------------------------------
Defendants MONICA SLIDER, et. al., filed an appeal from a court
ruling entered in the lawsuit entitled Gene Asbury, James
LeMonnier, Bonnie Lohmeyer, Fred Osier, Harry Rush, Laurie Skemp,
and Royal Palm Village Residents, Inc., on behalf of themselves,
the class of current and former mobile homeowners in the Park and
all others similarly situated v. Monica Slider, Sheri Woodworth,
Belinda Lawson, Sun Communities, Inc., Royal Palm Village, LLC,
American Land Lease, Inc., Asset Investors Operating Partnership,
L.P., Richard Lee, and Lutz, Bobo & Telfair, P.A., d/b/a Lutz,
Bobo, Telfair, Eastman & Lee, f/k/a Lutz, Webb & Bobo, P.A., Case
No. 8:19-cv-00874-CEH-SPF, in the U.S. District Court for the
Middle District of Florida.
The lawsuit was filed on April 12, 2019, by Plaintiff Royal Palm
Village Residents, Inc., the mobile homeowner association and legal
representative of a class of over 400 elderly current and former
mobile homeowners in the Royal Palm Village Mobile Home Park
located in Haines City, Florida. The complaint asserted claims
against Defendants for violations of the Florida and federal RICO
statutes, the Americans with Disabilities Act, the Florida
Deceptive and Unfair Trade Practices Act, and the Florida Mobile
Home Act and for unjust enrichment.
It alleged that Defendants engaged in fraudulent and conspiratorial
acts to illegally and unreasonably deceive over 400 elderly mobile
homeowners and their representative homeowner association that
their mobile home park was lawfully purchased by the Defendants,
and then "acted and conspired to circumvent statutory regulations
under the Florida Mobile Home Act and engaged in further deceit and
extortion." They allegedly did so by forcing homeowners to pay
increased lot rentals by charging a premium for certain lot rental
categories which were fraudulently described; passing on increased
ad-valorem taxes to homeowners; and illegally passing on annual
fire and stormwater tax to homeowners; among several other ways.
On August 2, 2021, Magistrate Judge Sean P. Flynn issued a Report
and Recommendation regarding Defendants' motion for Rule 11
sanctions as to a second amended complaint filed by the
Plaintiffs.
The Defendants now seek a review of the Court's Order dated
September 29, 2021 wherein Defendants' Objections to the Report and
Recommendation were overruled-in-part and sustained-in-part. In
that Order, the Court adopted, confirmed, and approved the
Magistrate Judge's Report and Recommendation except as to
consideration of the Court's failure to reach the merits of the
Florida RICO claims in determining whether those claims lacked a
legal or factual basis. The Order further stated that Defendants'
Verified Motion for Award of Attorney's Fees is granted in part.
The appellate case is captioned as Royal Palm Village Residents,
Inc., et al. v. Monica Slider, et al., Case No. 21-13789, in the
United States Court of Appeals for the Eleventh Circuit, filed on
October 28, 2021.
The briefing schedule in the Appellate Case states that:
-- The appellant's brief is due on or before December 7, 2021;
an
-- The appendix is due no later than 7 days from the filing of
the appellant's brief.[BN]
Defendants-Appellants MONICA SLIDER, SHERI WOODWORTH, BELINDA
LAWSON, SUN COMMUNITIES, INC., ROYAL PALM VILLAGE, LLC, AMERICAN
LAND LEASE, INC., ASSET INVESTORS OPERATING PARTNERSHIP, L.P.,
RICHARD LEE, and LUTZ, BOBO & TELFAIR, P.A., d.b.a. Lutz, Bobo,
Telfair, Eastman & Lee, f.k.a. Lutz, Webb & Bobo, P.A., are
represented by:
Mahlon Herbert Barlow, III, Esq.
Ali Vakili Mirghahari, Esq.
SIVYER BARLOW & WATSON, PA
401 E Jackson St Ste 2225
Tampa, FL 33602
Telephone: (813) 221-4242
E-mail: mbarlow@sbwlegal.com
- and -
J. Allen Bobo, Esq.
LUTZ BOBO TELFAIR, PA
2 N Tamiami Trl Ste 500
Sarasota, FL 34236
Telephone: (941) 951-1800
E-mail: jabobo@lutzbobo.com
Plaintiffs-Appellees ROYAL PALM VILLAGE RESIDENTS, INC., GENE
ASBURY, JAMES LEMONNIER, BONNIE LOHMEYER, FRED OSIER, and HARRY
RUSH, on behalf of the homeowner-members in its representative
capacity and on behalf of themselves and all others similarly
situated, are represented by:
Daniel W. Perry, Esq.
DANIEL PERRY, ESQ.
4767 New Broad St # 1007
Orlando, FL 32814-6405
Telephone: (407) 894-9003
E-mail: dan@danielperry.com
TRADEWEB MARKETS: Bid to Nix Antitrust Class Suits Pending
----------------------------------------------------------
Tradeweb Markets Inc. said in its Form 10-Q Report filed with the
Securities and Exchange Commission on October 29, 2021, for the
quarterly period ended September 30, 2021, that the company's
motion to dismiss the antitrust class actions related to trading
practices in the United States Treasury securities auctions are
pending.
The Company has been named as a defendant, along with other
financial institutions, in antitrust class actions (consolidated
into two actions) relating to trading practices in United States
Treasury securities auctions.
The cases were dismissed in March 2021, with the Court granting the
Plaintiffs leave to further amend the complaint by no later than
May 14, 2021.
The plaintiffs filed an Amended Complaint on or about May 14, 2021,
and the Company served its motion to dismiss on Plaintiffs on June
14, 2021.
The Company believes that it has meritorious defenses to the
Amended Complaint and intends to continue to vigorously defend its
position.
The motions to dismiss were fully briefed on August 4, 2021.
Tradeweb Markets Inc. is a leader in building and operating
electronic marketplaces for its global network of clients across
financial ecosystem. The company's network is comprised of clients
across the institutional, wholesale and retail client sectors,
including many of the largest global asset managers, hedge funds,
insurance companies, central banks, banks and dealers, proprietary
trading firms and retail brokerage and financial advisory firms, as
well as regional dealers. The company is based in New York, New
York.
UNILEVER UNITED: Pardini Appeals Ruling in Product Labeling Case
----------------------------------------------------------------
Plaintiffs Kym Pardini, et al., filed an appeal from a court ruling
entered in the lawsuit styled Pardini v. Unilever United States,
Inc., Case No. 4:13-cv-01675-JSW, in the U.S. District Court for
the Northern District of California, Oakland.
As previously reported in the Class Action Reporter, the Hon. Judge
Jeffrey S. White entered an order on July 10, 2020, denying a
motion for class certification, and granting motions to strike the
expert declarations filed in the case.
The Plaintiffs had alleged that the labels on the Defendant's I
Can't Believe It's Not Butter Spray (Product) during a six-month
period from December 2009 to May 2010 failed to contain an asterisk
next to the "0g fat per serving" representation that the Product
may contain an ingredient that "adds a trivial amount of fat." This
failure to add the clarifying asterisk and ingredient information
was, the Plaintiffs allege, in violation of the Federal Drug and
Cosmetic Act and related regulations which require that the
asterisk and explanation by the ingredients list be included where
there is a representation of zero fat.
The Defendant argued that the Plaintiffs fail to show that they
purchased the particularly mislabeled Product within the limited
operative time or that they looked for the allegedly missing
asterisk statement. Further, the Plaintiffs' consumer survey does
not address the asterisk claim. The Plaintiffs have not produced
evidence that they read and relied upon the "0g fat" statement on
the front label or that they turned over the Product to search on
the back label for the "asterisk statement" giving the more nuanced
explanation near the ingredients list as required by the Federal
Food, Drug, and Cosmetic Act. The asterisk disclosure below the
ingredient panel should have indicated that soybean oil and sweet
cream buttermilk contain a "dietarily insignificant amount of
fact." However, no named Plaintiff testified that she looked for
the missing asterisk on the back label or even read the ingredients
list fully. It is clear that the Plaintiffs did not indicate that
the missing statements would have impacted their purchases.
The appellate case is captioned as KYM PARDINI; CARRIE WOOD, on
behalf of themselves and all others similarly situated,
Plaintiffs-Appellants, v. UNILEVER UNITED STATES, INC., a Delaware
corporation, Defendant-Appellee, Case No. 21-16806, in the United
States Court of Appeals for the Ninth Circuit, filed on October 28,
2021.
The briefing schedule in the Appellate Case states that:
-- Appellant's Mediation Questionnaire was due on November 4,
2021;
-- Transcript shall be ordered by November 26, 2021;
-- Transcript shall be filed by December 27, 2021;
-- Appellant's opening brief and excerpts of record shall be
filed by February 4, 2022;
-- Appellee's answering brief and excerpts of record shall be
filed by March 7, 2022; and
-- The optional appellant's reply brief shall be filed and
served within 21 days of service of the appellee's brief. Failure
of the appellant to comply with the Time Schedule Order will result
in automatic dismissal of the appeal.[BN]
UNITED THERAPEUTICS: Bid to Strike MSP Amended Complaint Pending
----------------------------------------------------------------
United Therapeutics Corporation said in its Form 10-Q Report filed
with the Securities and Exchange Commission on November 3, 2021,
for the quarterly period ended September 30, 2021, that the
company's motion to strike the amended complaint filed in the class
action suit initiated by MSP Recovery Claims, is pending.
On July 27, 2020, MSP Recovery Claims, Series LLC; MSPA Claims 1,
LLC; and Series PMPI, a designated series of MAO-MSO Recovery II,
LLC (Plaintiffs) filed a "Class Action Complaint" against Caring
Voices Coalition, Inc. (CVC) and the company in the U.S. District
Court for the District of Massachusetts.
The Complaint alleges that the company violated the federal
Racketeer Influenced and Corrupt Organizations act and various
state laws by coordinating with CVC when making donations to a
pulmonary arterial hypertension fund so that those donations would
go towards copayment obligations for Medicare patients taking drugs
manufactured and marketed by the company.
Plaintiffs claim to have received assignments from various Medicare
Advantage health plans and other insurance entities that allow them
to bring this lawsuit on behalf of those entities to recover
allegedly inflated amounts they paid for our drugs.
On April 6, 2021, the Court granted the company's motion to
transfer the case to the U.S. District Court for the Southern
District of Florida.
Two members of the putative class, Humana Inc. and UnitedHealthcare
Insurance Company, have informed the company that they may bring
claims directly against the company to recover alleged
overpayments.
On October 15, 2021, the company filed a motion for judgment on the
pleadings, seeking to dismiss plaintiffs' claims in this
litigation.
On that same day, plaintiffs filed an amended complaint that
includes state antitrust claims based on alleged facts similar to
those raised by Sandoz and RareGen in the matter described above,
and adding Smiths Medical as a defendant.
The company filed a motion to strike this amended complaint on
October 21, 2021.
The Court has set a case schedule with trial commencing in October
2023.
United Therapeutics said, "We intend to vigorously defend against
this lawsuit."
Silver Spring, Md.-based United Therapeutics Corporation develops
and commercializes therapeutic products for patients with chronic
and life-threatening diseases. The Company offers products
primarily in three therapeutic areas, including cardiovascular,
cancer, and infectious diseases.
US STEEL: Consolidated Shareholder Action Ongoing in Pennsylvania
-----------------------------------------------------------------
United States Steel Corporation said in its Form 10-Q Report filed
with the Securities and Exchange Commission on October 29, 2021,
for the quarterly period ended September 30, 2021, that the company
continues to defend a consolidated shareholder class action suit
pending before the U.S. District Court for the Western District of
Pennsylvania.
On October 2, 2017, an Amended Shareholder Class Action Complaint
was filed in the United States District Court for the Western
District of Pennsylvania consolidating previously-filed actions.
Separately, five related shareholder derivative lawsuits were filed
in State and Federal courts in Pittsburgh, Pennsylvania and the
Delaware Court of Chancery.
The underlying consolidated class action lawsuit alleges that U. S.
Steel, certain current and former officers, an upper level manager
of the Company and the financial underwriters who participated in
the August 2016 secondary public offering of the Company's common
stock violated federal securities laws in making false statements
and/or failing to discover and disclose material information
regarding the financial condition of the Company.
The lawsuit claims that this conduct caused a prospective class of
plaintiffs to sustain damages during the period from January 27,
2016 to April 25, 2017 as a result of the prospective class
purchasing the Company's common stock at artificially inflated
prices and/or suffering losses when the price of the common stock
dropped.
The derivative lawsuits generally make the same allegations against
the same officers and also allege that certain current and former
members of the Board of Directors failed to exercise appropriate
control and oversight over the Company and were unjustly
compensated.
The plaintiffs seek to recover losses that were allegedly
sustained. The class action Defendants moved to dismiss plaintiffs'
claims. On September 29, 2018 the Court ruled on those motions
granting them in part and denying them in part.
On March 18, 2019, the plaintiffs withdrew the claims against the
Defendants related to the 2016 secondary offering.
As a result, the underwriters are no longer parties to the case. On
December 31, 2019, the Court granted Plaintiffs' motion to certify
the proceeding as a class action.
The Company's appeal of that decision has been denied by the Third
Circuit Court of Appeals and the class has been notified.
Discovery has concluded and the Company and individual defendants
continue vigorously defending the remaining claims.
United States Steel Corporation produces and sells flat-rolled and
tubular steel products primarily in North America and Europe. It
operates through three segments: North American Flat-Rolled, U.S.
Steel Europe (USSE), and Tubular Products. United States Steel was
founded in 1901 and is headquartered in Pittsburgh, Pennsylvania.
US XPRESS: Arbitration Hearing in Contractor Suit Set for June 2022
-------------------------------------------------------------------
U.S. Xpress Enterprises, Inc. said in its Form 10-Q Report filed
with the Securities and Exchange Commission on October 29, 2021,
for the quarterly period ended September 30, 2021, that a final
arbitration hearing has been set for for June 6, 2022.
On March 26, 2019, a putative class action complaint was filed in
the U.S. District Court for the Eastern District of Tennessee
against the Company and its subsidiaries U.S. Xpress, Inc. and U.S.
Xpress Leasing, Inc.
The putative class includes all individuals who performed work for
U.S. Xpress, Inc. or U.S. Xpress Leasing, Inc. as lease purchase
drivers from March 26, 2016 to present. The complaint alleges that
independent contractors are improperly designated as such and
should be designated as employees and thus subject to the Fair
Labor Standards Act ("FLSA").
The complaint further alleges that U.S. Xpress, Inc.'s pay
practices for the putative class members violated the minimum wage
provisions of the FLSA for the period from March 26, 2016 to
present.
The complaint further alleges that the Company violated the
requirements of the Truth in Leasing Act with regard to the
independent contractor agreements and lease purchase agreements it
entered into with the putative class members.
The complaint further alleges that the Company failed to comply
with the terms of the independent contractor agreements and lease
purchase agreements entered into with the putative class members,
that it violated the provisions of the Tennessee Consumer
Protection Act in advertising, describing and marketing the lease
purchase program to the putative class members, and that it was
unjustly enriched as a result of the foregoing allegations. The
Company filed a Motion to Compel Arbitration on October 18, 2019.
On January 17, 2020, the court granted that motion, in part,
compelling arbitration on all of the plaintiff's claims and denying
the plaintiff's motion for conditional certification of a
collective action. The court further stayed the matter pending
arbitration, rather than dismissing it entirely. On March 6, 2020,
the plaintiff petitioned the court to certify the decision for an
interlocutory appeal.
The Company filed an opposition to plaintiff's motion on March 20,
2020, and plaintiff filed her reply on April 3, 2020, purportedly
relying, in part, on a recent case from Massachusetts.
In response to that newly cited case, the Company was granted leave
to file a surreply, which it filed on April 13, 2020. On September
3, 2020, the district court denied the plaintiff's petition.
The plaintiff initiated arbitration on December 16, 2020. On March
25, 2021, the arbitrator issued a scheduling order, setting a final
arbitration hearing for June 6, 2022. The parties have exchanged
discovery requests in this matter, but neither part has responded.
U.S. Xpress said. "We are currently not able to predict the
probable outcome or to reasonably estimate a range of potential
losses, if any. We believe the allegations made in the complaint
and demand are without merit and intend to defend ourselves
vigorously in this matter."
U.S. Xpress Enterprises, Inc. operates as an asset-based truckload
carrier providing services primarily in the United States. The
Company was founded in 1985 and is headquartered in Chattanooga,
Tennessee.
US XPRESS: IPO Related Class Actions Underway
---------------------------------------------
U.S. Xpress Enterprises, Inc. said in its Form 10-Q Report filed
with the Securities and Exchange Commission on October 29, 2021,
for the quarterly period ended September 30, 2021, that the company
continues to defend several class action suits related to its
initial public offering ("IPO").
Between November 2018 and April 2019, eight substantially similar
putative securities class action complaints were filed against the
Company and certain other defendants: five in the Circuit Court of
Hamilton County, Tennessee ("Tennessee State Court Cases"), two in
the U.S. District Court for the Eastern District of Tennessee
("Federal Court Cases"), and one in the Supreme Court of the State
of New York ("New York State Court Case").
All of these matters are in preliminary stages of litigation.
The company is currently not able to predict the probable outcome
or to reasonably estimate a range of potential losses, if any. The
company believes the allegations made in the complaints are without
merit and intend to defend ourselves vigorously in these matters.
As to the Tennessee State Court Cases, two of five complaints were
voluntarily dismissed and the remaining three were consolidated
with a Consolidated Amended Class Action Complaint (the
"Consolidated State Court Complaint") filed on May 10, 2019 in the
Circuit Court of Hamilton County, Tennessee against the Company,
five of our current and former officers or directors, and the seven
underwriters who participated in our June 2018 initial public
offering ("IPO"), alleging violations of Sections 11, 12(a)(2) and
15 of the Securities Act of 1933.
The putative class action lawsuit is based on allegations that the
Company made false and/or misleading statements in the registration
statement and prospectus filed with the Securities and Exchange
Commission ("SEC") in connection with the IPO. The lawsuit is
purportedly brought on behalf of a putative class of all persons or
entities who purchased or otherwise acquired the Company's Class A
common stock pursuant and/or traceable to the IPO, and seeks, among
other things, compensatory damages, costs and expenses (including
attorneys' fees) on behalf of the putative class.
On June 28, 2019, the defendants filed a Motion to Dismiss the
Tennessee State Court Cases for failure to allege facts sufficient
to support a violation of Section 11, 12 or 15 of the Securities
Act.
On November 13, 2020, the court presiding over the Tennessee State
Court Cases entered an order, granting in part and denying in part
the defendants' Motions to Dismiss the Consolidated State Court
Complaint.
The court held that the plaintiffs failed to state a claim for
violation of the Securities Act with respect to the majority of
statements challenged as false or misleading in the Consolidated
State Court Complaint.
The court, however, held that the Consolidated State Court
Complaint sufficiently alleged violations of the Securities Act
with respect to one statement from the June 2018 IPO registration
statement and prospectus that the plaintiffs alleged to be false or
misleading, both on theories of alleged misrepresentations and
material omissions.
Accordingly, the court allowed this action to proceed beyond the
pleading stage, but only with respect to the statement deemed
sufficient to support a Securities Act claim when assuming the
truth of the plaintiffs' allegations.
On April 29, 2021, plaintiffs filed a Motion for Class
Certification, which is currently pending. The Tennessee State
Court Cases are currently in discovery.
As to the Federal Court Cases, the operative amended complaint was
filed on October 8, 2019, which named the same defendants as the
Tennessee State Court Cases. The Amended Federal Complaint is made
on behalf of a putative class. In addition to claims for alleged
violations of Section 11 and 15 of the Securities Act, the Amended
Federal Complaint alleges violations of Section 10(b) and 20(a) of
the Securities Exchange Act of 1934 against the Company, its Chief
Executive Officer and its Chief Financial Officer.
On December 23, 2019, the defendants filed a Motion to Dismiss the
Amended Federal Complaint in its entirety for failure to allege
facts sufficient to state a claim under either the Securities Act
or the Exchange Act. The plaintiffs filed their Opposition to that
Motion on March 9, 2020, and the defendants filed their Reply brief
on April 23, 2020.
On June 30, 2020, the court presiding over the Federal Court Cases
issued its ruling granting in part and denying in part the
defendants' Motions to Dismiss the Amended Federal Complaint. The
court dismissed entirely the plaintiffs' claims for alleged
violations of the Exchange Act and further held that the plaintiffs
failed to state a claim for violation of the Securities Act with
respect to the majority of statements challenged as false or
misleading in the Amended Federal Complaint.
The court, however, held that the Federal Amended Complaint
sufficiently alleged violations of the Securities Act with respect
to two statements from the June 2018 IPO registration statement and
prospectus that the plaintiffs alleged to be false or misleading,
both on theories of alleged misrepresentations and material
omissions.
Accordingly, the court allowed this action to proceed beyond the
pleading stage, but only with respect to the statements deemed
sufficient to support a Securities Act claim when assuming the
truth of the plaintiffs' allegations. On February 12, 2021, the
Court granted plaintiffs' Motion for Class Certification and
certified a class consisting of all persons or entities who
purchased or otherwise acquired USX stock pursuant to and/or
traceable to the IPO and who were damaged thereby. The Federal
Court Cases are currently in discovery.
As to the New York State Case, on March 14, 2019, a substantially
similar putative class action complaint was filed in the Supreme
Court of the State of New York, County of New York, by a different
plaintiff alleging claims under Sections 11 and 15 of the
Securities Act against the same defendants as in the Tennessee
State Court Cases.
On December 18, 2020, defendants filed a Motion to Dismiss or Stay
the New York State Case both on the merits and in deference to the
pending actions in Tennessee. On March 5, 2021, the court residing
over the New York State Case dismissed the case, and on September
14, 2021, the court denied plaintiff's motion for reconsideration.
U.S. Xpress Enterprises, Inc. operates as an asset-based truckload
carrier providing services primarily in the United States. The
Company was founded in 1985 and is headquartered in Chattanooga,
Tennessee.
US XPRESS: Settlement Reached in Tennessee Contractor Suit
----------------------------------------------------------
U.S. Xpress Enterprises, Inc. said in its Form 10-Q Report filed
with the Securities and Exchange Commission on October 29, 2021,
for the quarterly period ended September 30, 2021, that parties in
the putative collective and class action complaint filed in the
U.S. District Court for the Eastern District of Tennessee, agreed
to settle the matter for a nominal amount and have finalized the
settlement agreement and submitted it to the court for approval.
On June 25, 2020, a putative collective and class action complaint
was filed against the Company and its subsidiaries U.S. Xpress,
Inc. and U.S. Xpress Leasing, Inc. in the U.S. District Court for
the Eastern District of Tennessee.
The putative class and collective action includes all current and
former over-the-road truck drivers classified as independent
contractors who performed work for the Company during the
applicable statute of limitations.
The complaint alleges that independent contractors are improperly
designated as such and should be designated as employees subject to
the FLSA. The complaint alleges that U.S. Xpress, Inc.'s pay
practices for the putative collective and class members violated
the minimum wage provisions of the Fair Labor Standards Act
("FLSA") for the period from June 25, 2017 to the present.
The complaint further alleges that the company failed to pay the
plaintiff and members of the class for all miles they drove and
breached the contract between the parties and that we were unjustly
enriched as a result of the foregoing allegations.
The plaintiff agreed to submit his claims to individual arbitration
and filed an arbitration demand on July 31, 2020.
The parties agreed to settle the matter for a nominal amount and
have finalized the settlement agreement and submitted it to the
court for approval.
Once approved, the parties will also ask the court to dismiss the
case, with prejudice.
The Company continues to deny the allegations made in the complaint
and demand.
U.S. Xpress Enterprises, Inc. operates as an asset-based truckload
carrier providing services primarily in the United States. The
Company was founded in 1985 and is headquartered in Chattanooga,
Tennessee.
US XPRESS: Trial in Wage & Hour Class Suit Set for March 1, 2022
----------------------------------------------------------------
U.S. Xpress Enterprises, Inc. said in its Form 10-Q Report filed
with the Securities and Exchange Commission on October 29, 2021,
for the quarterly period ended September 30, 2021, that the trial
date in the wage-and-hour class action in filed in the Superior
Court of California, County of San Bernardino is set for March 1,
2022.
On December 23, 2015, a former driver filed a class action lawsuit
against the Company and its subsidiary U.S. Xpress, Inc. in the
Superior Court of California, County of San Bernardino.
The Company removed the case from state court to the U.S. District
Court for the Central District of California.
The district court denied plaintiff's initial motion for class
certification of a class comprised of any employee driver who has
driven in California at any time since December 23, 2011, without
prejudice, under Rule 23 due to lack of commonality amongst the
putative class members.
The Court granted the plaintiff's revised Motion for Class
Certification, and the certified class now consists of all employee
drivers who resided in California and who have driven in the State
of California on behalf of U.S. Xpress, Inc. at any time since
December 23, 2011.
The case alleges that class members were not paid for off-the-clock
work, were not provided duty free meal or rest breaks, and were not
paid premium pay in their absence, were not paid the California
minimum wage for all hours worked in that state, were not provided
accurate and complete itemized wage statements and were not paid
all accrued wages at the end of their employment, all in violation
of California law. The class seeks a judgment for compensatory
damages and penalties, injunctive relief, attorney fees, costs and
pre- and post-judgment interest.
On May 2, 2019, the district court dismissed the claims alleging
failure to provide duty free meal and rest breaks or premium pay
for failure to provide such breaks under California law on grounds
of preemption. The Ninth Circuit Court of Appeals recently upheld
the administrative ruling that formed the basis for the district
court's ruling.
The parties also filed cross-motions for summary judgment on the
remaining claims, and the Company filed a motion to decertify the
class.
The court issued its ruling on the pending cross-motions: (1) the
court denied the Company's motion to decertify the class; (2) the
court granted the Company's motion for summary judgment on the
plaintiff's minimum wage claim for non-driving duties such as
pre-trip and post-trip inspection, fueling, receiving dispatches,
waiting to load or unload, and handling paperwork for the loads for
January 1, 2013 forward (leaving the minimum wage claim only for
the approximate one-year time period from December 23, 2011 to
December 31, 2012); (3) the court granted the plaintiff's motion
for summary judgment for the time spent taking U.S. Department of
Transportation-required 10-hour breaks while hauling high value
loads in California for solo drivers and for the designated team
driver responsible for the load during those breaks; and (4) the
court denied the balance of cross-motions. The plaintiff filed a
petition for permission to file an interlocutory appeal of the
court's decision on the minimum wage claim, which the district
court and the Ninth Circuit both granted.
On June 22, 2021, the Ninth Circuit issued its memorandum decision
upholding the district court's ruling in favor of the Company on
the plaintiff's claim for payment of the minimum wage for certain
non-driving work they claim was left uncompensated by the Company's
piece rate pay plan after January 1, 2013.
The district court held a status conference on June 15, 2021 and
set a trial date for March 1, 2022. Discovery has been completed.
U.S. Xpress said, "We are currently not able to predict the
probable outcome or to reasonably estimate a range of potential
losses, if any. We intend to vigorously defend the merits of these
claims."
U.S. Xpress Enterprises, Inc. operates as an asset-based truckload
carrier providing services primarily in the United States. The
Company was founded in 1985 and is headquartered in Chattanooga,
Tennessee.
WINS FINANCE: Continues to Defend Kamau Shareholder Class Suit
--------------------------------------------------------------
Wins Finance Holdings Inc. said in its Form 20-F report filed with
the U.S. Securities and Exchange Commission on October 29, 2021,
for the fiscal year ended June 30, 2021, that the company continues
to defend a shareholder class action suit initiated by Samuel
Kamau.
On July 24, 2020, Samuel Kamau filed a shareholder class action
complaint in the District Court for the Central District of
California seeking unspecified monetary damages for alleged
violations of the United States Securities Exchange Act of 1934
during the period from October 31, 2018 to July 6, 2020 against
Wins Finance Holdings Inc., Renhui Mu, and Junfeng Zhao (entitled
Kamau v. Wins Finance Holdings, Inc., et al.; C.D. Cal. Case No.
2:20-cv-06656).
Plaintiff's initial complaint alleges, among other things, that
Defendants purportedly violated the securities laws by failing to
disclose that the repayment of a RMB 580 million "loan" to Guohong
Asset Management Co., Ltd. was "highly uncertain," and that the
resignation of the Company's former independent auditor was
"foreseeably likely" given the non-payment of the foregoing loan as
well as alleged material weaknesses in the Company's control over
financial reporting.
As of this date and to the best of the company's knowledge, neither
Wins Finance nor the individual Defendants have been served or have
agreed to accept service of the summons and complaint.
Wins Finance said, "As of this date, Plaintiff has not filed an
affidavit of service with the Court concerning service upon any
Defendant. In accordance with procedural rules applicable to such
securities class actions, motions for appointment as lead
plaintiff(s) and lead counsel were filed on or before September 24,
2020, following the Court's resolution of which it is common for
the newly-appointed lead plaintiff(s) to amend the complaint and
allegations underlying the claims. There is not any update progress
since from June 30, 2020."
Wins Finance Holdings Inc., through its subsidiaries, provides
financing solutions for small and medium enterprises in the
People's Republic of China. It provides financial guarantee and
leasing services, as well as financial advisory, consultancy, and
agency services in Jinzhong City, Shanxi Province, and Beijing. The
company is headquartered in New York, New York. Wins Finance
Holdings Inc. is a subsidiary of Freeman FinTech Corporation
Limited.
WINS FINANCE: Desta Settlement Awaits Final Approval
----------------------------------------------------
Wins Finance Holdings Inc. said in its Form 20-F report filed with
the U.S. Securities and Exchange Commission on October 29, 2021,
for the fiscal year ended June 30, 2021, that the parties in the
securities class action suit entitled, Desta v. Wins Finance
Holdings, Inc., et al., are awaiting court's decision granting
final approval of the settlement.
As of June 30, 2018, the Company and certain of its executive
officers have been named as defendants in one civil securities
lawsuit filed in U.S. District Courts.
On April 20, 2017, Michel Desta filed a securities class action
complaint in the District Court for the Central District of
California seeking monetary damages against the company, Jianming
Hao, Renhui Mu, Peiling (Amy) He, and Junfeng Zhao (entitled Desta
v. Wins Finance Holdings, Inc., et al.; C.D. Cal. Case No.
2:17-cv-02983) (hereafter, the "California Action").
On June 26, 2017, the Court issued an Order appointing lead
plaintiffs and lead counsel, and on August 25, 2017 lead plaintiffs
filed an Amended Class Action Complaint. The Amended Complaint
(which did not name Peiling (Amy) He as a defendant), alleges a
claim against the company for securities fraud purportedly arising
from alleged misrepresentations concerning Wins' principal
executive offices (which alleged misrepresentations resulted in
Wins being added to, and then removed from, the Russell 2000
index). On October 24, 2017, the company moved to dismiss the
Amended Complaint for failure to state a claim as against it.
On March 1, 2018, the District Court for the Central District of
California issued an Order denying the Company's motion to dismiss.
Thus, the civil action has proceeded to the fact gathering
"discovery" stage in respect to the Company.
As a result of a private mediation conducted in November 2018, the
Company agreed in principle to settle the class action, on behalf
of all remaining defendants.
The full terms of that settlement remain confidential (but include
certain contingencies concerning shareholder participation in the
settlement and required court approvals).
The court granted preliminary approval of the settlement by order
entered on March 4, 2019. Given that the Company has not yet
received the necessary approvals from Chinese regulators as to the
transfer of the settlement funds from China to the United States,
the Court entered an Order dated August 11, 2020 setting a final
settlement approval hearing for March 22, 2021.
No further updates were provided in the Company's SEC report.
Wins Finance Holdings Inc., through its subsidiaries, provides
financing solutions for small and medium enterprises in the
People's Republic of China. It provides financial guarantee and
leasing services, as well as financial advisory, consultancy, and
agency services in Jinzhong City, Shanxi Province, and Beijing. The
company is headquartered in New York, New York. Wins Finance
Holdings Inc. is a subsidiary of Freeman FinTech Corporation
Limited.
XEROX CORP: Ribbe Suit Concluded
--------------------------------
Xerox Corporation said in its Form 10-Q Report filed with the
Securities and Exchange Commission on November 3, 2021, for the
quarterly period ended September 30, 2021, that plaintiff filed a
letter with the Appellate Division withdrawing and discontinuing
his appeal of the dismissal order, concluding the Ribbe v.
Jacobson, et al. suit.
On April 11, 2019, Carmen Ribbe filed a putative derivative and
class action stockholder complaint in the Supreme Court of the
State of New York for New York County, naming as defendants Xerox,
then-current Board members Joseph J. Echevarria, Cheryl Gordon
Krongard, Keith Cozza, Giovanni G. Visentin, Jonathan Christodoro,
Nicholas Graziano, and A. Scott Letier, and former Board members
Jeffrey Jacobson, William Curt Hunter, Robert J. Keegan, Charles
Prince, Ann N. Reese, Stephen H. Rusckowski, Gregory Q. Brown, and
Sara Martinez Tucker.
Plaintiff previously filed a putative shareholder derivative
lawsuit on May 24, 2018 against certain of these defendants, as
well as others, in the same court; that lawsuit was dismissed
without prejudice on December 6, 2018 ("Ribbe I").
The new complaint included putative derivative claims on behalf of
Xerox for breach of fiduciary duty against the then members of the
Xerox Board who approved Xerox's entry into agreements to settle
shareholder actions filed in 2018 in the same court against Xerox,
its then directors, and FUJIFILM Holdings Corporation in connection
with a proposed transaction announced in January 2018 to combine
Xerox and Fuji Xerox (the "Fuji Transaction"), including a
consolidated putative class action, In re Xerox Corporation
Consolidated Shareholder Litigation ("XCCSL"), and actions filed by
Darwin Deason, Deason v. Fujifilm Holdings Corp., et al. and Deason
v. Xerox Corporation, et al., against the same defendants as well
as, in the first Deason action, former Xerox Chief Executive
Officer Ursula M. Burns (the "Fuji Transaction Shareholder
Lawsuits").
Plaintiff alleged that the settlements ceded control of the Board
and the Company to Darwin Deason and Carl C. Icahn without a vote
by, or compensation to, other Xerox stockholders; improperly
provided certain benefits and releases to the resigning and
continuing directors; and subjected Xerox to potential breach of
contract damages in an action by Fuji relating to Xerox's
termination of the proposed Fuji Transaction.
Plaintiff also alleged that the then-current Board members breached
their fiduciary duties by allegedly rejecting plaintiff's January
14, 2019 shareholder demand on the Board to remedy harms arising
from entry into the Deason and XCCSL settlements. The new complaint
further included direct claims for breach of fiduciary duty on
behalf of a putative class of current Xerox stockholders other than
Mr. Deason, Mr. Icahn, and their affiliated entities (the "Ribbe
Class") against the defendants for causing Xerox to enter into the
Deason and XCCSL settlements, which plaintiff alleged perpetuated
control of Xerox by Mr. Icahn and Mr. Deason and denied the voting
franchise of Xerox shareholders.
Among other things, plaintiff sought damages in an unspecified
amount for the alleged fiduciary breaches in favor of Xerox against
defendants jointly and severally; rescission or reformation of the
Deason and XCCSL settlements; restitution of funds paid to the
resigning directors under the Deason settlement; an injunction
against defendants' engaging in the alleged wrongful practices and
equitable relief affording the putative Ribbe Class the ability to
determine the composition of the Board; costs and attorneys' fees;
and other further relief as the Court may deem proper.
Defendants accepted service of the complaint as of May 16, 2019. On
June 4, 2019, the Court entered an order setting a briefing
schedule for defendants' motions to dismiss the complaint.
On July 12, 2019, plaintiff filed a motion to preclude defendants
from referencing in their motions to dismiss the formation of, or
work by, the committee of the Board established to investigate
plaintiff's shareholder demand. On July 18, 2019, the Court denied
plaintiff's motion and adjourned sine die the deadline by which
defendants must file any motions to dismiss the complaint.
On January 6, 2020, plaintiff filed his first amended complaint
("FAC"). The FAC includes many of plaintiff's original allegations
regarding the 2018 shareholder litigation and settlements, as well
as additional allegations, including, among others, that the
members of the Special Committee of the Board that investigated
plaintiff's demand lacked independence and wrongfully refused to
pursue the claims in the demand; allegations that an agreement
announced in November 2019 for, among other things, the sale by
Xerox of its interest in Fuji Xerox to Fujifilm and dismissal of
Fujifilm's breach of contract lawsuit against Xerox (the "FX Sale
Transaction"), was unfavorable to Xerox; and allegations about a
potential acquisition by Xerox of HP similar to those in the Miami
Firefighters derivative action described below. In addition to the
claims in the April 11, 2019 complaint, the FAC adds as defendants
Carl C. Icahn, Icahn Capital LP, and High River Limited Partnership
(the "Icahn defendants") and asserts claims against those
defendants and the Board similar to those in Miami Firefighters
relating to the Icahn defendants' purchases of HP stock allegedly
with knowledge of material nonpublic information concerning Xerox's
potential acquisition of HP.
In addition to the relief sought in Ribbe's prior complaint, the
FAC seeks relief similar to that sought in Miami Firefighters
relating to the Icahn defendants' alleged purchases of HP stock.
On January 21, 2020, plaintiff in the Miami Firefighters action
filed a motion seeking to intervene in Ribbe and to have stayed, or
alternatively, severed and consolidated with the Miami Firefighters
action, any claims first filed in Miami Firefighters and later
asserted by Ribbe. At a conference held on February 25, 2020, the
Court denied the motion to intervene without prejudice. On March 6,
2020, plaintiff in the Miami Firefighters action renewed its
motion. On July 23, 2020, after hearing oral argument, the Court
issued an order denying the motion and setting certain case
deadlines.
Discovery commenced. On August 7, 2020, Xerox, the director
defendants, and the Icahn defendants filed separate motions to
dismiss. On October 1, 2020, plaintiff filed a cross-motion
seeking, among other relief, joinder of Xerox Holdings Corporation
as a nominal defendant.
Briefing on the motions to dismiss and plaintiff's cross-motion was
completed on October 16, 2020. On December 14, 2020, following oral
argument, the Court issued a decision and order denying plaintiff's
cross-motion and granting defendants' motions, dismissing the
action in its entirety as to all defendants. Dismissal as to the
Icahn defendants was conditioned on the filing of an affidavit,
which the Icahn defendants filed on December 16, 2020, indicating
whether defendant Icahn gained a profit or incurred a loss on
purchases of HP stock during the relevant time period.
On April 7, 2021, plaintiff filed in the previously dismissed Ribbe
I and XCCSL actions a motion seeking an award of attorneys' fees of
$1.5 and a service award of $10 thousand for benefits he allegedly
obtained for Xerox and its stockholders.
On June 4, 2021, the Court granted plaintiff's fee application, in
part, and awarded plaintiff attorneys' fees in the amount of $125
thousand in the dismissed actions, which Xerox paid in July 2021.
The Court denied plaintiff's request for a service award.
Plaintiff had six months from January 13, 2021 in which to perfect
his appeal of the Court's December 14, 2020 dismissal order. Upon
his application to the Appellate Division, plaintiff's time to
perfect the appeal was extended.
On September 9, 2021, plaintiff filed a letter with the Appellate
Division withdrawing and discontinuing his appeal of the dismissal
order. As a result, the case is now concluded.
Xerox Corporation designs, develops, and sells document management
systems and solutions worldwide. It offers intelligent workplace
services, including managed print services; digitization services;
and digital solutions, such as workflow automation, personalization
and communication software, and content management. Xerox
Corporation was founded in 1906 and is headquartered in Norwalk,
Connecticut.
*********
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
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Toledo, Christopher G. Patalinghug, and Peter A. Chapman, Editors.
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