/raid1/www/Hosts/bankrupt/CAR_Public/211206.mbx
C L A S S A C T I O N R E P O R T E R
Monday, December 6, 2021, Vol. 23, No. 237
Headlines
1888 MILLS: Loses Summary Judgment Bid vs Brown
3 RIVERS TELEPHONE: Barnes Files Suit in D. Montana
ALLIED WASTE: Recycling Services "Misleading," Cross Suit Claims
AMAZON INC: Faces Baron Suit Over Alleged Sale of Digital Content
AMAZON.COM: Nov. 22 Deadline to File Class Cert. Bid Vacated
AMERIHEALTH CARITAS: Underpays Clinical Care Reviewers, Wood Claims
AMICO CORPORATION: Carroll Sues Over Delayed Wages, Discrimination
AMWARE PALLET: Beltran Hits Missed Breaks, Seeks Reimbursements
ANCIENT BRANDS: Weekes Files ADA Suit in S.D. New York
ANGRY SUPPLEMENTS: Weekes Files ADA Suit in S.D. New York
ANIMAL MEDICAL: Sosa Files ADA Suit in S.D. New York
ANTHEM COMPANIES: Underpays Medical Management Nurses, Baker Claims
ARCHON INC: Appeals Default Judgment in Saiyed FLSA Suit
ARGENT TRUST: Files Consent Bid to Reset Class Cert. Deadlines
ARROW SENIOR: Parties Seek FLSA Conditional Status
ASSOCIATION MGMT: Denial of Class Cert. Bid in Liggio Suit Affirmed
ATLAS OPERATING: Fails to Pay Overtime Wages, Perez Suit Claims
AZARIAHS INNOCENCE: Weekes Files ADA Suit in S.D. New York
B&G FOODS: Dec. 17 Deadline to Oppose Class Cert. Bid Sought
BANK OF AMERICA: $11.5MM Class Deal in Harrison Suit Has Final OK
BAYLOR SCOTT: C.C. Suit Seeks to Certify Settlement Class
BEACH HOUSE: Nygaard Seeks to Certify Class
BEAUFORT COUNTY, SC: Munday Seeks to Certify Female Detainee Class
BEELMAN TRUCK: Guszkiewicz Hits Undisclosed Facial Data Retention
BISHOP OF CHARLESTON: Court Denies Aselage's Protective Order Bid
BJA MASONRY: Weeks Sues Over Unpaid Wages for Construction Workers
BOSCH SOLAR: Objection to Reply Evidence in Rojas Suit Sustained
BURGER KING: Inspection Found No Black Mold, Backed-Up Sewage
BUTLER MOTORS: Orders Denying Bids to Dismiss Benosky Suit Affirmed
CANADA: Claims Submitted in Military Sexual Misconduct Lawsuits
CANDID CARE: Thomas Seeks Pay for Off-the-Clock Work
CAPITOL CITY: Stovall Sues Over Unpaid Overtime for Caretakers
CDR MAGUIRE: Barker Seeks Unpaid Overtime Wages for Safety Workers
CELSIUS HOLDINGS: Hezi Sues Over Energy Drink's False Ad
CLAMPART LLC: Sosa Files ADA Suit in S.D. New York
COLES COUNTY, IL: Seeks Dec. 21 Extension to File Class Cert. Reply
CORAL SPRINGS: Faces Zirpoli Suit Over Telemarketing Practices
CREDIT SERVICE: Wusterbarth Suit Remanded to Brown County Cir. Ct.
CRODA INC: Court Tosses All Claims in Baker Suit Without Prejudice
DELIVERY.COM LLC: Contreras Files ADA Suit in S.D. New York
DESKTOP METAL: Campanella Files Suit Over ExOne Merger
EDGEWELL PERSONAL: Sunscreens Contain Benzene, Chabla Suit Alleges
EDGEWELL PERSONAL: Zayas Files Suit in D. Connecticut
EL AGUASCALIENTES: Underpays Restaurant Laborers, Banuelos Claims
FASTLY INC: Court Dismisses Consolidated Securities Class Suit
FCA US LLC: Tavarez Sues Over Non-Blind Friendly Website
FIRSTENERGY CORP: Court Vacates Class Cert. Order in Smith Suit
FLORIDA INSURANCE: Camunas TCPA Suit Removed to S.D. Florida
FORWARD AIR CORP: Garcia Sues Over Data Breach
GBC BUSINESS: Mitchell Sues Over Transmission of Unwanted Robocalls
GBG SEAN JOHN: Weekes Files ADA Suit in S.D. New York
GEBRUEDER KNAUF: Bennett Sues Over Marketing of Defective Drywall
GEBRUEDER KNAUF: Dan Blonsky Files Suit in S.D. Florida
GEBRUEDER KNAUF: Ferrera Files Suit in S.D. Florida
GEBRUEDER KNAUF: Guzman Files Suit in S.D. Florida
GEBRUEDER KNAUF: Isidro Calderon Files Suit in S.D. Florida
GEBRUEDER KNAUF: Marfelia Calderon Files Suit in S.D. Florida
GEBRUEDER KNAUF: Mercedes Gaspard Files Suit in S.D. Florida
GEBRUEDER KNAUF: Nicole Gaspard Files Suit in S.D. Florida
GENERAL MOTORS: Faces Click Suit Over Automobile's Fuel Pump Defect
GEORGIA: Class Cert. Bid Filing Extended to March 28, 2022
GERALD HONDA: Simik Files FCRA Suit in S.D. Texas
GLASHAUS INC: Weekes Files ADA Suit in S.D. New York
GLOSSLAB LLC: Crosson Files ADA Suit in E.D. New York
GOLDEN WEST: Butts Files Suit in Cal. Super. Ct.
GOLDMAN SACHS: Faces Chen Suit Over Alleged Inside Trading
GPS INTERNATIONAL: Kerr Seeks to Recover Unpaid Overtime Wages
GROUPE RENAULT: Faces Class Action Over Diesel Emissions Tests
HAMPTON INN: Fultz Sues Over Access Barriers to Disabled Persons
HEALTH & HOSPITAL CORP: Crimans Sues Over Data Breach
HEALTHCARE SERVICES: Bacon Sues Over Unpaid Overtime for Cooks
HENOCH ENTERPRISES: Sosa Files ADA Suit in S.D. New York
HOUSING AUTHORITY: Faces Wells Wage-and-Hour Suit in W.D. Ky.
HRB BRANDS: Molina Sues Over Antiperspirants' Benzene Content
HUGEDOMAINS.COM: Contreras Files ADA Suit in S.D. New York
IAS SERVICES: Faces Bradley Suit Over Claim Adjusters' Unpaid OT
JJ FOOD MARKET: Flores Seeks Unpaid Overtime Wages, Payslips
JOHNSON & JOHNSON: Contreras Files ADA Suit in S.D. New York
K&P FACILITIES: Cleaners Sue Over Unpaid Wages
KASHI SALES: Faces Hoffman Suit Over Mislabeled Breakfast Bars
KAYEM FOODS: Rodriguez Files ADA Suit in E.D. New York
KAZ USA: Contreras Files ADA Suit in S.D. New York
KELLOGG SALES: Class Settlement in Hadley Suit Wins Final Approval
KELLOGG SALES: N.D. California Enters Final Judgment in Hadley Suit
KIRKLAND'S STORES: Ct. Modifies August 10, 2021 Scheduling Order
KMD PARTNERS: Bradford Files FCRA Suit in S.D. Texas
KONINKLIJKE PHILIPS: Mallory Files Suit in W.D. Pennsylvania
KROGER CO: Walker Files Suit in Cal. Super. Ct.
LANDMARK INFRASTRUCTURE: Proposed Merger Lacks Info, Coffman Says
LANDSEA HOMES: Green Sues Over Unpaid Minimum, Overtime Wages
LE-VEL: Weekes Files ADA Suit in S.D. New York
LEXINFINTECH HOLDINGS: Securities Suit Dismissed Without Prejudice
LIGHTNING EMOTORS: Cohen Sues Over Alleged Stock Price Drop
LOWE'S COMPANIES: Class Cert. Reply Deadlines in FLSA Suit Amended
M2 MANAGEMENT: Laborers Slam Misclassification, Seek Overtime Pay
MAGELLAN HEALTHCARE: Civil Rights Suit Removed to N.D. Illinois
MASON COMPANIES: LeCompte Files Suit in W.D. Wisconsin
MASON COMPANIES: Lloyd Files Suit in W.D. Wisconsin
MASON COMPANIES: Ross Files Suit in W.D. Wisconsin
MASON COMPANIES: Stevens Files Suit in W.D. Wisconsin
MASON COMPANIES: Tanenbaum Files Suit in W.D. Wisconsin
MASTERCARD INC: Sells Cardholders' Personal Info, Rivera Alleges
MATILDA GOURMET: Faces Ortega Wage-and-Hour Suit in S.D.N.Y.
MATTHEW DUTCAVICH: Extension to File Class Cert Bid Sought
MCCAFFREE-SHORT TITLE: FLSA Settlement in Craven Suit Approved
META PLATFORMS: Perez Hits Share Price Drop
MICHIGAN: Amended Crawford Complaint v. MDOC, LCF & State Tossed
MICHIGAN: Court Dismisses Anderson Suit for Failure to State Claim
MICHIGAN: District Court Tosses Jackson's Suit v. MDOC, LCF & State
MICHIGAN: District Court Tosses Johnson's Suit v. MDOC, LCF & State
MICHIGAN: Dulin Prisoners Suit Dismissed for Failure to State Claim
MICHIGAN: Gaskins v. Blue Dismissed for Failure to State Claim
MICHIGAN: Merriweather Suit Dismissed for Failure to State Claim
MICHIGAN: Stevens v. Whitmer Dismissed for Failure to State a Claim
MICHIGAN: Western District Court Dismisses MacKiehowell v. MDOC
MICHIGAN: Western District Court Tosses Amended Holloway Complaint
MICHIGAN: Western District Court Tosses Hart's Amended Complaint
MIDWEST ARBOR: Zarate Can't File 1st Amended Complaint, Court Says
MOWI USA: $1.3MM Class Settlement in Neversink Suit Wins Final OK
NATIONAL FOOTBALL: Denial of Gordon's Concussion Claim Affirmed
NATURAL ESSENTIALS: Class Deal in Savanich Labor Suit Gets Approval
NEW HORIZONS: Summary Judgment Order in Brockington Suit Affirmed
NEW YORK CITY: Prelim. Injunction & TRO Bid in Broecker Suit Denied
NORTH CENTRAL: Delivery Drivers Win Class Status in Compton Suit
NSC TECHNOLOGIES: Hearing on Thompson Deal Prelim. Approval Vacated
NYC MEDICAL: Court Approves Proposed Notices in Lawrence Class Suit
ONTARIO: Class Settlement Reached in Youth Inmates' Lawsuit
OWLET INC: Faces Cherian Securities Suit Over Stock Price Drop
OXFORD HEALTH: Suit Seeks Mental Health Benefits Under ERISA
PARETEUM SHAREHOLDERS: Investors Seek to Certify Class Action
PAX LABS INC: Ortega Sues Over Non-Blind-Friendly Website
PETROQUEST ENERGY: Ct. Extends Class Cert. Reply Deadlines
PICK-UP & GO: Pearson Sues Over Unpaid OT for Delivery Workers
PILOT TRAVEL: Waltrip's Reply to Dismissal Bid May Exceed 30 Pages
PROCH.COM INC: Court Allows Preston to File 1st Amended Complaint
PROCTER & GAMBLE: Sued Over Benzene-Based Antiperspirant Products
PRUDENTIAL FINANCIAL: New Jersey Court Dismisses Stone Class Suit
PUBLISHERS CLEARING: Sells Customers' Personal Info, Palmer Claims
PUBLISHERS CLEARING: Sells Personal Transactional Data, Suit Says
PUBLISHERS CLEARING: Tanenbaum Sues Over Sale of Customers' Info
PUSHPAY USA: Blankers et al. Sue Over Failure to Pay Proper OT
Q LINK WIRELESS: Faces Brown Sues Over Unsolicited Voice Messages
QIHOO 360: Second Circuit Vacates Dismissal of Altimeo Class Suit
QUINSTREET PL: Faces Pizarro TCPA Suit Over Prerecorded Messages
RCI LLC: N.D. Ohio Dismisses Bryan TCPA Suit With Prejudice
REPROSOURCE FERTILITY: Faces Bickham Suit Over Personal Data Breach
RESIDEO TECH: Entwistle & Cappucci Reminds of Jan. 27 Deadline
ROBINHOOD MARKETS: Fails to Protect Customers' Info, Glinoga Says
SANDERSON FARMS: Court Tosses All Remaining Claims in La Fosse Suit
SCHEAR CONSTRUCTION: Fails to Pay Proper Wages, Book Suit Alleges
SER ENTERPRISES: Hernandez Files Labor Class Action
SOCLEAN INC: Philips Devices Contain PE-PUR Foam, Bradley Suit Says
SONY INTERACTIVE: Majo Slams Gender Discrimination in Workplace
SOUTHERN CALIFORNIA: Beltran Labor Suit Goes to S.D. California
SOUTHERN FARM: Breach of Contract Judgment in Smith Suit Affirmed
SOUTHWEST GAS: Tender Offer Lacks Info, City Pension Alleges
SOUTHWESTERN & PACIFIC: Court Wants More Briefing on Arredondo Deal
STAMPS.COM INC: $100MM Class Settlement to be Heard on Jan. 24
STARBUCKS CORPORATION: Faces Oden Suit Over Age Discrimination
STATE FARM: Reduces Loss Vehicles' Cash Value, Chadwick Suit Says
STRATEGIC DELIVERY: Opposition to Class Cert. Extended to Dec. 13
SUNDA NASHVILLE: Tamminga Suit Alleges Unpaid Wages for Servers
TEXAS: Court Rules on Objections to Four Orders in Aiello v. TDCJ
THERE TO HERE: Underpays Restaurant Staff, Arellano Suit Claims
TOTAL CASH: Sends Unsolicited Telemarketing Calls, Issel Alleges
TOTTINI BROOKLYN: Underpays Salesclerks, Pizarro Suit Alleges
TRACE STAFFING: Ct. Clarifies Sched/Discovery Order in Gouldie
TRANSWORLD SYSTEMS: Court Amends Trial & Related Dates in Hoffman
TULARE COUNTY, CA: Criswell's Bid to File Docs Under Seal Denied
UBER TECHNOLOGIES: Bid to Compel Arbitration in Singh Suit Granted
UNIFIRST CORP: Court Dismisses Garcia Suit Without Prejudice
UNILEVER UNITED: Antiperspirant Contains Benzene, Barnes Alleges
UNITED AIRLINES: Hoffman ERISA Suit Seeks Payment of Plan Benefits
UNITED HEALTHCARE: OHL Seeks to Certify Healthcare Provider Class
UNITED STATES: Amended Mossman Complaint v. CDC Dismissed as Moot
UNITED STATES: Faces Class Suit Over Vaccine's Religious Exemptions
VALVE CORP: W.D. Washington Trims Claims in Dark Catt Class Suit
VALVE CORP: Wolfire's Claims in Consolidated Amended Suit Narrowed
VEONEER INC: Misleads Stockholders to Approve Merger, Sabatini Says
VIATRIS INC: Dvorak Antitrust Suit Moved From E.D. Va. to D. Kan.
VIATRIS INC: Sumner Antitrust Suit Moved From E.D. Tenn. to D. Kan.
VILLAGE COMPANY: Body Spray Contains Benzene, Ventura Suit Says
VISION SOLAR: Sends Unsolicited Telemarketing Calls, Landy Says
VOLKSWAGEN AG: Settlement Reached in Transmission Class Action Suit
WASATCH ADVANTAGE: Parties Seek to Vacate Class Cert. Schedule
WENZAK HEARTLAND: Bachmann Sues Over Storing Employees' Biometrics
WISCONSIN: District Court Dismisses Shaw v. RCI With Prejudice
ZHANGMEN EDUCATION: Faces Banerjee Suit Over Drop in Share Price
*********
1888 MILLS: Loses Summary Judgment Bid vs Brown
-----------------------------------------------
In the class action lawsuit captioned as MELISSA BROWN,
individually and on behalf of those similarly situated to her, v.
1888 MILLS, LLC, Case No. 3:20-cv-00224-TCB (N.D. Ga.), the Hon.
Judge Timothy C. Batten, Sr. entered an order denying 1888 Mills,
LLC's motion for summary judgment.
Additionally, the Plaintiff Melissa Brown's motion for conditional
certification of collective action under the Faie Labor Standards
Act (FLSA) is granted.
The Court finds that a plaintiff's acceptance, or lack thereof, is
controlling in this circumstance. Because the offer -- and
accompanying check -- remains unaccepted, a live controversy still
exists. The parties are still adverse, and they "retain the same
stake in the litigation they had at the outset." Under Rule 68, the
offer can be deemed withdrawn because more than 14 days has passed
since it was served upon Brown. Granting summary judgment at this
stage would have the effect of depriving Brown of any relief.
Accordingly, the Court finds that this case is not moot and summary
judgment would be premature.
The Court adds that the Plaintiffs have provided a sufficient
reasonable basis for finding a violation of the FLSA and the
existence of a similarly-situated group of aggrieved individuals.
Accordingly, conditional certification of the class is appropriate
for purposes of sending notice to potential class members."
Ms. Brown is a former employee of 1888 Mills, where she worked from
2015 until she was terminated in July 2020. Brown was paid between
$12 and $17 per hour, at a rate that increased during her time with
the company. She alleges that the timekeeping system used by 1888
Mills improperly rounds down employees' hours-worked to the nearest
15-minute interval. She also alleges that the system would
automatically adjust an employee's clock-out time to their
scheduled shift end, depriving them of compensation for any
additional time actually worked.
On December 17, 2020, Brown filed this suit. Between January 20 and
February 17, 2021, three additional employees of 1888 Mills filed
consent forms, opting into the lawsuit as Plaintiffs.
1888 Mills is located in Griffin, Georgia, and is part of the
furniture and home furnishing merchant wholesalers industry.
A copy of the Court's order dated Dec. 1, 2021 is available from
PacerMonitor.com at https://bit.ly/3xQvA8N at no extra charge.[CC]
3 RIVERS TELEPHONE: Barnes Files Suit in D. Montana
---------------------------------------------------
A class action lawsuit has been filed against 3 Rivers Telephone
Cooperative, Inc. The case is styled as Harry Barnes, John Murray,
Robert Desrosier, Kenneth Hoyt, Judy White, on behalf of themselves
and all those similarly situated v. 3 Rivers Telephone Cooperative,
Inc., Case No. 4:21-cv-00118-BMM (D. Mont., Nov. 30, 2021).
The nature if suit is stated as Other Civil Rights for the Civil
Rights Act.
3 Rivers Telephone Cooperative, Inc. -- https://3rivers.net/ -- is
a telecommunications company based in Fairfield, Montana.[BN]
The Plaintiffs are represented by:
Jeffrey G. Winter, Esq.
HARTELIUS DUROCHER & WINTER
P. O. Box 1629
Great Falls, MT 59403-1629
Phone: (406) 727-4020
Fax: (406) 771-7319
Email: jwinter@mtlawyers.net
- and -
Joseph F. Sherwood, Esq.
MATT LAW OFFICE
310 Main Street
Cut Bank, MT 59427
Phone: (406) 873-4833
Email: joes@mattlawoffice.com
- and -
Terryl T. Matt, Esq.
1200 East Main
PO Box 428
Cut Bank, MT 59427
Phone: (406) 873-4833
Fax: (406) 873-4944
Email: terrylm@mattlawoffice.com
ALLIED WASTE: Recycling Services "Misleading," Cross Suit Claims
----------------------------------------------------------------
KEILA CROSS, individually and on behalf of all others similarly
situated, Plaintiff v. ALLIED WASTE SERVICES OF NORTH AMERICA, LLC,
D/B/A REPUBLIC SERVICES, Defendant, Case No. 9:21-cv-00145-DLC-KLD
(D. Mont., November 29, 2021) is a class action against the
Defendant for violation of the Montana Consumer Protection Act.
According to the complaint, the Defendant is engaged in deceptive
business acts and practices by promoting residential curbside
recycling services and representing that it recycles materials that
it collects from consumers and charging them for the same. However,
the Plaintiff learned that many of the products the Defendant
collects and purports to recycle are sent directly to the landfill.
As a result of the Defendant's alleged misrepresentation, the
Plaintiff and all others similarly situated have suffered an
ascertainable loss of money.
Allied Waste Services of North America, LLC, doing business as
Republic Services, is a provider of collection, recycling, and
disposal services, headquartered in Arizona. [BN]
The Plaintiff is represented by:
Jesse Kodadek, Esq.
Martin Rogers, Esq.
WORDEN THANE P.C.
321 W. Broadway St., Ste. 300
Missoula, MT 59802
Telephone: (406) 721-3400
E-mail: jkodadek@wordenthane.com
mrogers@wordenthane.com
AMAZON INC: Faces Baron Suit Over Alleged Sale of Digital Content
-----------------------------------------------------------------
MARY BARON; CALHEA JOHNSON; MALIKA MCLEAN; and TONY WATSON,
individually and on behalf of all others similarly situated,
Plaintiffs v. AMAZON INC., Defendant, Case No. 1:21-cv-09636-PAC
(S.D.N.Y., Nov. 19, 2021) is an action against the Defendant's
material misrepresentations relating to its "sale" of Digital
Content causing the Plaintiffs and the Class to sustain damages by
overpayment of Digital Content they can never own because the
Defendant does not have the right to transfer title to it in the
first place.
According to the complaint, the Digital Content sold by the
Defendant is actually licensed to Amazon by the Digital Content's
owner. These licensing arrangements mean that, unlike in a true
sale, the Defendant can never pass title of any licensed Digital
Content it claims to be selling consumers. Thus, when a licensing
agreement terminates for whatever reason, the Defendant is required
to pull the Digital Content from the consumers' Purchased Folder
and Music Library, which it does without prior warning, and without
providing any type of refund or remuneration to consumers, says the
suit.
In other words, unlike a Best Buy or Target store that obtains
title from a Digital Content's owner that it then conveys to a
purchaser for value, the Defendant's licensing arrangements prevent
it from ever being able to pass title to Digital Content it claims
it "sells" to consumers. Moreover, the Defendant's alleged sale of
Digital Content, which it does not actually own, is made more
egregious because, as demonstrated below, Amazon charges just as
much for that content, at times even more so, than stores that
actually transfer title of the Digital Content to its customers,
which access can never be revoked.
Thus, the Defendant has been, and continues to, mislead consumers
into believing it is selling them Digital Content, even though it
is merely providing them with a license to view it, which can be
terminated at any time, for any reason and without any type of
warning so that a consumer can take steps to attempt to preserve
it, the suit added.
AMAZON.COM, INC. is an online retailer that offers a wide range of
products. The Company products include books, music, computers,
electronics and numerous other products. Amazon offers personalized
shopping services, Web-based credit card payment, and direct
shipping to customers. [BN]
The Plaintiffs are represented by:
Michael R. Reese, Esq.
Carlos F. Ramirez, Esq.
Charles D. Moore, Esq.
REESE LLP
100 West 93rd Street, 16th Floor
New York, NY 10025-7524
Telephone: (212) 643-0500
Facsimile: (212) 253-4272
Email: mreese@reesellp.com
cramirez@reesellp.com
cmoore@reesellp.com
-and-
George V. Granade, Esq.
REESE LLP
8484 Wilshire Boulevard, Suite 515
Los Angeles, CA 90211
Telephone: (310) 393-0070
Facsimile: (212) 253-4272
Email: ggranade@reesellp.com
-and-
Spencer Sheehan, Esq.
SHEEHAN & ASSOCIATES, P.C.
505 Northern Boulevard, Suite 311
Great Neck, NY 11021
Telephone: (516) 303-0552
Facsimile: (516) 234-780
Email: spencer@spencersheehan.com
AMAZON.COM: Nov. 22 Deadline to File Class Cert. Bid Vacated
------------------------------------------------------------
In the class action lawsuit captioned as ELIZABETH DE COSTER et
al., on behalf of themselves and all others similarly situated, v.
AMAZON.COM, INC., a Delaware corporation, Case No.
2:21-cv-00693-RSM (W.D. Wash.), the Hon. Judge Ricardo S. Martinez
entered an order vacating the November 22, 2021 deadline for
Plaintiffs to file their motion for class certification.
The parties shall propose a class certification briefing schedule
promptly following disposition of Amazon's motion to dismiss
Plaintiffs' consolidated amended complaint, should the Court deny
that motion, Judge Martinez says.
The parties, by and through their counsel, stipulate and agree as
follows:
-- The Plaintiffs initially filed this lawsuit on May 26,
2021.
-- On June 21, 2021, the Court entered a stipulated order
consolidating this case with West v. Amazon.com, Inc.,
Case No. 2:21-cv-694 (Stipulated Order).
-- As permitted by the Stipulated Order, Plaintiffs filed
their consolidated amended complaint on July 21, 2021.
The Plaintiffs intend to seek to certify a nationwide class of all
persons who, on or after May 26, 2017, purchased one or more goods
on Amazon's marketplace.
Amazon.com is an American multinational technology company which
focuses on e-commerce, cloud computing, digital streaming, and
artificial intelligence.
A copy of the Court's order dated Nov. 30, 2021 is available from
PacerMonitor.com at https://bit.ly/3plHAeD at no extra
charge.[CC]
The Interim Lead Counsel for the Plaintiffs are:
Steve W. Berman, Esq.
Barbara A. Mahoney, Esq.
HAGENS BERMAN SOBOL SHAPIRO LLP
1301 Second Avenue, Suite 2000
Seattle, WA 98101
Telephone: (206) 623-7292
Facsimile : (206) 623-0594
E-mail: steve@hbsslaw.com
barbaram@hbsslaw.com
- and -
Zina G. Bash, Esq.
Warren D. Postman, Esq.
Albert Y. Pak, Esq.
KELLER LENKNER LLC
111 Congress Avenue, Suite 500
Austin, TX, 78701
Telephone: (512) 690-0990
E-mail: zina.bash@kellerlenkner.com
wdp@kellerlenkner.com
albert.pak@kellerlenkner.com
The Plaintiffs' Executive Committee Members, are:
Alicia Cobb, Esq.
Steig D. Olson, Esq.
David D. LeRay, Esq.
Nic V. Siebert, Esq.
Adam B. Wolfson, Esq.
QUINN EMANUEL URQUHART & SULLIVAN, LLP
1109 First Avenue, Suite 210
Seattle, WA 98101
Telephone: (206) 905-7000
51 Madison Avenue, 22nd Floor
New York, NY 10010
Telephone: (212) 849-7000
E-mail: aliciacobb@quinnemanuel.com
steigolson@quinnemanuel.com
adamwolfson@quinnemanuel.com
- and -
Derek W. Loeser, Esq.
KELLER ROHRBACK L.L.P.
1201 Third Avenue, Suite 3200
Seattle, WA 98101-3052
Telephone: (206) 623-1900
Facsimile: (206) 623-3384
E-mail: Dloeser@kellerrohrback.com
The Attorneys for Amazon.com, Inc., are:
Stephen M. Rummage, Esq.
MaryAnn Almeida, Esq.
DAVIS WRIGHT TREMAINE LLP
920 Fifth Avenue, Suite 3300
Seattle, WA 98104-1610
Telephone: (206) 622-3150
Facsimile: (206) 757-7700
E-mail: SteveRummage@dwt.com
MaryAnnAlmeida@dwt.com
- and -
Karen L. Dunn, Esq.
William A. Isaacson, Esq.
Amy J. Mauser, Esq.
Martha L. Goodman, Esq.
Kyle N. Smith, Esq.
PAUL, WEISS, RIFKIND, WHARTON &
GARRISON LLP
2001 K Street, NW
Washington, D.C.
Telephone: (202) 223-7300
Facsimile: (202) 223-7420
E-mail: kdunn@paulweiss.com
wisaacson@paulweiss.com
amauser@paulweiss.com
mgoodman@paulweiss.com
ksmith@paulweiss.com
AMERIHEALTH CARITAS: Underpays Clinical Care Reviewers, Wood Claims
-------------------------------------------------------------------
ANN WOOD, individually and on behalf of all others similarly
situated, Plaintiff v. AMERIHEALTH CARITAS SERVICES, LLC,
Defendant, Case No. 2:21-cv-05258 (E.D. Pa., November 30, 2021) is
a class action against the Defendant for its failure to compensate
the Plaintiff and similarly situated employees overtime pay for all
hours worked in excess of 40 hours in a workweek in violation of
the Fair Labor Standards Act and the Pennsylvania Minimum Wage
Act.
The Plaintiff has been employed by the Defendant as a clinical care
reviewer from approximately November 2012 to the present.
AmeriHealth Caritas Services, LLC is a multi-line health insurance
company with its principal place of business located at 200 Stevens
Drive, Philadelphia, Pennsylvania. [BN]
The Plaintiff is represented by:
Patricia Barasch, Esq.
SCHALL & BARASCH, LLC
Moorestown Office Center
110 Marter Avenue, Suite 105
Moorestown, NJ 08057
Telephone: (856) 914-9200
Facsimile: (856) 914-9420
E-mail: pbarasch@schallandbarasch.com
- and –
Rachhana T. Srey, Esq.
Caroline E. Bressman, Esq.
NICHOLS KASTER, PLLP
4700 IDS Center
80 South Eighth Street
Minneapolis, MN 55402
Telephone: (612) 256-3200
Facsimile: (612) 338-4878
E-mail: srey@nka.com
pfishman@nka.com
AMICO CORPORATION: Carroll Sues Over Delayed Wages, Discrimination
------------------------------------------------------------------
TONY H. CARROLL, individually and on behalf of all others similarly
situated, Plaintiff v. AMICO CORPORATION, Defendant, Case No.
2:21-cv-06631 (E.D.N.Y., November 29, 2021) is a class action
against the Defendant for its failure to compensate the Plaintiff
and similarly situated workers on a weekly basis in violation of
the New York Labor Law and for racial discrimination in violation
of Section 1981 of the Civil Rights Act of 1866 and the New York
State Human Rights Law.
The Plaintiff was employed by the Defendant as a forklift operator
in New York.
Amico Corporation is a manufacturer of medical equipment and
hardware, headquartered in Richmond Hill, Ontario. [BN]
The Plaintiff is represented by:
Peter A. Romero, Esq.
LAW OFFICE OF PETER A. ROMERO PLLC
490 Wheeler Road, Suite 250
Hauppauge, NY 11788
Telephone: (631) 257-5588
E-mail: promero@romerolawny.com
AMWARE PALLET: Beltran Hits Missed Breaks, Seeks Reimbursements
---------------------------------------------------------------
Faustino Olivar Beltran, individually, and on behalf of others
similarly situated, Plaintiffs, v. Amware Pallet Services, LLC and
Symbia Global Group LLC, and Does 1 through 50, inclusive,
Defendants, Case No. 21STCV43047 (Cal. Super., November 23, 2021),
seeks unpaid wages and interest thereon for failure to pay for all
hours worked and minimum wage rate, failure to authorize or permit
required meal periods, failure to authorize or permit required rest
periods, statutory penalties for failure to provide accurate wage
statements, waiting time penalties in the form of continuation
wages for failure to timely pay employees all wages due upon
separation of employment, reimbursement of business-related
expenses, injunctive relief and other equitable relief, reasonable
attorney's fees, costs and interest pursuant to California Labor
Code and applicable Industrial Welfare Commission Wage Orders.
Amware Pallet Services operates as "Symbia Logistics" where Beltran
worked as an hourly-paid, non-exempt employee.[BN]
Plaintiffs are represented by:
Shoham J. Solouki, Esq.
Grant Joseph Savoy, Esq.
SOLOUKI SAVOY, LLP
316 W. 2nd Street, Suite 1200
Los Angeles, CA 90012
Telephone: (213) 814-4940
Facsimile: (213) 814-2550
ANCIENT BRANDS: Weekes Files ADA Suit in S.D. New York
------------------------------------------------------
A class action lawsuit has been filed against Ancient Brands, LLC.
The case is styled as Robert Weekes, individually, and on behalf of
all others similarly situated v. Ancient Brands, LLC, Case No.
1:21-cv-10218 (S.D.N.Y., Dec. 1, 2021).
The lawsuit is brought over alleged violation of the Americans with
Disabilities Act.
Ancient Brands LLC -- https://www.ancientbrands.com/ -- retails
food nutritional and supplement products.[BN]
The Plaintiff is represented by:
Edward Y. Kroub, Esq.
MIZRAHI KROUB LLP
200 Vesey Street, Ste. 24th Floor
New York, NY 10281
Phone: (212) 595-6200
Email: ekroub@mizrahikroub.com
ANGRY SUPPLEMENTS: Weekes Files ADA Suit in S.D. New York
---------------------------------------------------------
A class action lawsuit has been filed against Angry Supplements,
LLC. The case is styled as Robert Weekes, individually, and on
behalf of all others similarly situated v. Angry Supplements, LLC,
Case No. 1:21-cv-10222 (S.D.N.Y., Dec. 1, 2021).
The lawsuit is brought over alleged violation of the Americans with
Disabilities Act.
Angry Supplements -- https://angrysupps.com/ -- is dedicated to
producing and distributing high quality all natural and authentic
sports nutrition products.[BN]
The Plaintiff is represented by:
Edward Y. Kroub, Esq.
MIZRAHI KROUB LLP
200 Vesey Street, Ste. 24th Floor
New York, NY 10281
Phone: (212) 595-6200
Email: ekroub@mizrahikroub.com
ANIMAL MEDICAL: Sosa Files ADA Suit in S.D. New York
----------------------------------------------------
A class action lawsuit has been filed against The Animal Medical
Center. The case is styled as Yony Sosa, on behalf of himself and
all other persons similarly situated v. The Animal Medical Center,
Case No. 1:21-cv-10235 (S.D.N.Y., Dec. 1, 2021).
The lawsuit is brought over alleged violation of the Americans with
Disabilities Act.
The Animal Medical Center (AMC) -- https://www.amcny.org/ -- is the
world's largest non-profit animal hospital, provides 24/7 emergency
and specialty care to dogs, cats, and exotic pets.[BN]
The Plaintiff is represented by:
Jeffrey Michael Gottlieb, Esq.
Michael A. LaBollita, Esq.
GOTTLIEB & ASSOCIATES
150 E. 18 St., Suite PHR
New York, NY 10003
Phone: (212) 228-9795
Email: nyjg@aol.com
michael@gottlieb.legal
ANTHEM COMPANIES: Underpays Medical Management Nurses, Baker Claims
-------------------------------------------------------------------
DEON BAKER, individually and on behalf of all others similarly
situated, Plaintiff v. THE ANTHEM COMPANIES, INC., Defendant, Case
No. 1:21-cv-04866-WMR (N.D. Ga., November 29, 2021) is a class
action against the Defendant for its failure to compensate the
Plaintiff and similarly situated employees overtime pay for all
hours worked in excess of 40 hours in a workweek in violation of
the Fair Labor Standards Act.
The Plaintiff was hired by the Defendant as a medical management
nurse II from approximately December 2015 to approximately July
2020.
The Anthem Companies, Inc. is a provider of health insurance in the
United States, with its principal place of business located at 220
Virginia Ave., Indianapolis, Indiana. [BN]
The Plaintiff is represented by:
John T. Sparks, Sr., Esq.
AUSTIN & SPARKS, P.C.
2974 Lookout Place, N.E., Suite 200
Atlanta, GA 30305
Telephone: (404) 869-0100
Facsimile: (404) 869-0200
E-mail: jsparks@austinsparks.com
- and –
Rachhana T. Srey, Esq.
Caroline E. Bressman, Esq.
NICHOLS KASTER, PLLP
4700 IDS Center
80 South Eighth Street
Minneapolis, MN 55402
Telephone: (612) 256-3200
Facsimile: (612) 338-4878
E-mail: srey@nka.com
cbressman@nka.com
ARCHON INC: Appeals Default Judgment in Saiyed FLSA Suit
--------------------------------------------------------
ARCHON INC., et al., filed an appeal from a court ruling entered in
the lawsuit styled AMJAD SAIYED v. ARCHON, INC., et al., Case No.
2:16-cv-09530-JMV-JBC, in the United States District Court for the
District of New Jersey.
As previously reported in the Class Action Reporter, the Plaintiff
commenced the putative class action on Nov. 21, 2014, in the U.S.
District Court for the Eastern District of New York alleging, among
other things, that the Defendants failed to pay him and other
similarly situated employees overtime and minimum wage in violation
of the Fair Labor Standards Act ("FLSA"), the New York Labor Law
("NYLL"), and New Jersey Wage and Hour Law ("NJWHL"). The Plaintiff
was employed by Defendant Archon Inc. and/or Archon Distribution,
Inc. from January 2009 until he was terminated on December 19,
2013.
The Plaintiff is from India, and represents that Archon submitted
U.S. Citizenship and Immigration Services ("USCIS") Form I-129,
which enabled him to obtain a visa to work in the United States. He
maintains that throughout his employment, Archon represented on
USCIS forms that it paid him vastly different salary amounts than
what he was actually paid. The Plaintiff also contends he was
forced to work under oppressive conditions and was mistreated. He
asserts that he tolerated these conditions out of fear of
deportation.
In the Amended Complaint, the Plaintiff asserts claims under the
Trafficking Victims Protection Reauthorization Act ("TVPRA");
common law fraud; the FLSA; NYLL; quantum meruit; and NJWHL on
behalf of himself and a class of similarly situated employees.
On April 9, 2018, the Clerk of the Court entered default as to the
Defendants for failure to plead or otherwise defend.
On November 1, 2021, Judge John Michael Vazquez entered an order
denying Defendants' motion to vacate default judgment and denying
Plaintiff's cross-motion for attorneys' fees.
The Defendants now seek a review of the Court's decision.
The appellate case is captioned as Archon Inc., et al. v. Amjad
Saiyed, Case No. 21-3135, in the United States Court of Appeals for
the Third Circuit, filed on November 18, 2021.[BN]
Defendants-Appellants ARCHON INC., ARCHON DISTRIBUTION INC., RASHID
PATEL, and MOHAMED ASHIF GAJRA are represented by:
Geoffrey T. Bray, Esq.
BRAY & BRAY
100 Misty Lane
Lanidex Executive Center
Parsippany, NY 07054
Telephone: (973) 739-9600
Plaintiff-Appellee AMJAD SAIYED, individually and on behalf of all
others similarly situated, is represented by:
Michael Farhi, Esq.
KATES NUSSMAN RAPONE ELLIS & FARHI
190 Moore Street, Suite 306
Hackensack, NJ 07601
Telephone: (201) 488-7211
E-mail: mfarhi@nklaw.com
ARGENT TRUST: Files Consent Bid to Reset Class Cert. Deadlines
--------------------------------------------------------------
In the class action lawsuit captioned as JACKIE LYSENGEN, on behalf
of the Morton Buildings, Inc. Leveraged Employee Stock Ownership
Plan, and on behalf of a class of all other persons similarly
situated, v. ARGENT TRUST COMPANY, JAN ROUSE, and EDWARD C. MILLER,
GETZ FAMILY LIMITED PARTNERSHIP, ESTATE OF HENRY A. GETZ, and its
beneficiaries and successors, and ESTATE OF VIRGINIA MILLER, and
its beneficiaries and successors, Case No. 1:20-cv-01177-MMM-JEH
(C.D. Ill.), Argent files consent motion to reset class
certification deadlines as follows:
Current Proposed New
Deadlines Deadlines
-- Defendants’ Oppositions Dec 6, 2021 Dec. 20, 2021
to Plaintiff’s Motion
for Class Certification
-- Plaintiff's Reply Dec. 10, 2021 Jan. 7, 2022
Argent operates as an investment management firm.
A copy of the Defendant's motion dated Dec. 1, 2021 is available
from PacerMonitor.com at https://bit.ly/3xO5NOy at no extra
charge.[CC]
The Defendant is represented by:
Jeffrey S. Russell, Esq.
Barbara A. Smith, Esq.
Jacob B. Simon, Esq.
BRYAN CAVE LEIGHTON PAISNER LLP
One Metropolitan Square
211 N. Broadway, Suite 3600
St. Louis, MO 63102
Telephone: (314) 259-2000
E-mail: jsrussell@bclplaw.com
barbara.smith@bclplaw.com
jacob.simon@bclplaw.com
ARROW SENIOR: Parties Seek FLSA Conditional Status
--------------------------------------------------
In the class action lawsuit captioned as KENDALL OLIN-MARQUEZ, on
behalf of herself and others similarly situated, Representative, v.
ARROW SENIOR LIVING MANAGEMENT, LLC, Case No. 2:21-cv-00996-EAS-CMV
(S.D. Ohio), the Parties asks the Court to enter an order approving
their joint stipulation of conditional certification pursuant to
section 216(b) of the Fair Labor Standards Act.
The Parties stipulate that:
1. The following class may be conditionally certified:
"All current and former hourly, non-exempt employees at
any Arrow senior living community in Ohio who (1) were
paid for 40 or more work hours in any workweek they were
required to have a meal break deduction taken from their
compensable hours worked and/or (2) were paid for more
than 40 hours work hours in any workweek that they
received nondiscretionary bonus payments, such as a
retention bonus (often called a "Sign On Bonus") or a
shift pick-up bonus, for working extra shifts or hours
beyond what the employee was scheduled to work from June
7, 2018 to the present;"
2. The the Court issue an Order that conditionally certifies
a class of all persons that fit the definition of
Collective Class Members.
3. The Defendant will provide a list of all Collective Class
Members, including their name, dates of employment, last
known mailing address, and last known personal email
address, if known, within 21 days of the Court's approval
of this Motion.
4. The Plaintiff will mail and email the Notice and Consent
to all Collective Class Members within 14 days of receipt
of the class list.
5. Matthew J.P. Coffman of Coffman Legal, LLC and Shannon
M. Draher of Nilges Draher LLC shall serve as Lead Counsel
for this collective action and request that the Court
issue an order approving same.
6. Kendall Olin-Marquez shall serve as the Representative
Plaintiff of this collective action and request that the
Court issue an order approving same.
Arrow Senior manages a collection of communities that offer care
including independent living, assisted living, and memory care.
A copy of the Parties' motion dated Nov. 30, 2021 is available from
PacerMonitor.com at https://bit.ly/3I5qPND at no extra charge.[CC]
The Plaintiff is represented by:
Shannon M. Draher, Esq.
NILGES DRAHER LLC
7266 Portage St, N.W., Suite D
Massillon, OH 44646
Telephone: (330) 470-4428
Facsimile: (330) 754-1430
E-mail: sdraher@ohlaborlaw.com
- and -
Matthew J.P. Coffman, Esq.
Adam C. Gedling, Esq.
Keslie N. Hendren, Esq.
COFFMAN LEGAL, LLC
1550 Old Henderson Road, Suite 126
Columbus, OH 43220
Telephone: (614) 949-1181
Facsimile: (614) 386-9964
E-mail: mcoffman@coffmanlegal.com
agedling@coffmanlegal.com
khendren@coffmanlegal.com
The Defendant is represented by:
Monica L. Lacks, Esq.
Rebecca J. Bennett, Esq.
Monica L. Lacks, Esq.
OGLETREE, DEAKINS, NASH,
SMOAK & STEWART, P.C.
Key Tower
127 Public Square, Suite 4100
Cleveland, OH 44114
Telephone: (216) 241-6100
Facsimile: (216) 357-4733
E-mail: rebecca.bennett@ogletree.com
Monica.lacks@ogltree.com
ASSOCIATION MGMT: Denial of Class Cert. Bid in Liggio Suit Affirmed
-------------------------------------------------------------------
In the case, PAUL LIGGIO, O/B/O THE LIGGIO 1999 REVOCABLE TRUST,
FOR HIMSELF AND OTHERS SIMILARLY SITUATED Appellant v. ASSOCIATION
MANAGEMENT CONSULTANTS CORP., CIPRESSI CONTRACTING, INC., AND
ESTATES CHIMNEY & FIREPLACE LLC, Case No. 266 EDA 2021 (Pa.
Super.), Judge Jack A. Panella of the Superior Court of
Pennsylvania affirmed the trial court's order denying the
Appellant's motion for class certification.
Background
The Appellant appeals from the order entered in the Bucks County
Court of Common Pleas, denying his motion for class certification.
Huntingdon Brook Community ("HBC") is a residential townhome and
condominium community located in Southampton, Bucks County,
Pennsylvania, consisting of approximately 262 units. HBC is
collectively managed by a homeowners' association, the Huntingdon
Brook Community Association ("the HOA"). The HOA contracted with
Association Management Consultants Corp. ("AMCC") to oversee and
manage a project for replacing the siding and gutter systems in
HBC. As part of that project, AMCC contracted with Cipressi
Contracting, Inc., to replace the caps on the chimneys at HBC.
Cipressi then subcontracted the project to Estates Chimney &
Fireplace, LLC.
On Oct. 31, 2018, Estates Chimney sent a letter to the HOA,
indicating it had inspected 207 chimneys and replaced the caps on
231 chimneys. Estates Chimney further indicated in the letter that
more than half of the chimneys failed inspection and were unsafe to
use because they were built in violation of code, as they lacked
fire stops. Estates Chimney indicated every chimney in HBC was
unsafe for use. The letter was also mailed to all HBC residents.
On May 9, 2019, the Appellant filed a collective and class action
complaint against AMCC and Estates Chimney, alleging that Estates
Chimney had caused permanent damage to the chimney and fireplace
systems of the homes located in HBC. In addition, the Appellant
alleged that AMCC had breached its fiduciary duty to the homeowners
and acted negligently in hiring Estates Chimney to perform the work
on the chimneys. In February 2020, Cipressi was joined as an
additional defendant.
Estates Chimney denied that it had damaged the chimneys, and
further, asserted that it had no contractual or fiduciary
relationship with Appellant or any homeowner. Estates Chimney
reiterated its belief that chimneys had been improperly installed
during the original construction of the homes. AMCC similarly
denied that the work done by Estates Chimney had caused any damage
to the homes.
On Oct. 14, 2020, the Appellant filed a motion for class
certification. His motion sought to certify a class consisting of
"all current and future HBC homeowners, and alleged that the work
done on the replacement caps was done negligently."
On Nov. 30, 2020, a certification hearing was held. The Appellant
did not present any evidence at the hearing, instead advising the
court that he intended to rest solely on the facts as presented in
the pleadings. On Dec. 9, 2020, the court denied the motion for
certification, based on consideration of the arguments presented at
the hearing, the pleadings, and the submissions of the parties. The
appeal followed.
Discussion
The Appellant contends the trial court abused its discretion in
holding that all of the prerequisites for class certification were
not met. We disagree. Judge Panella has reviewed the record and
find no abuse of discretion in the trial court's decision. While
the trial court more than sufficiently addressed each individual
prerequisite, he finds the overall theme was that Appellant plainly
did not provide enough evidence for any prerequisite to overcome
the burden required. Further, Rule 1702 is written in the
conjunctive, meaning that in order to obtain class action status,
all prerequisites must be met. Therefore, failure to meet even one
of the prerequisites is enough to deny class certification. Judge
Panella therefore only addresses one prerequisite that Appellant
failed to reach.
The Appellant contends there are sufficient common questions of law
and fact to warrant class certification. Judge Panella disagrees.
He cannot fault the trial court for concluding there are various
possible intervening or superseding causes of the fireplaces being
inoperable. There is no dispute that the fireplaces have been in
the homes since the 1980s. Therefore, it is extremely likely that
each fireplace/chimney has been treated differently over the
chimney's lifetime. No evidence was presented to show the condition
of each chimney before installation of the caps or after. The
Appellant himself admits that some of the homes have been re-fitted
for gas inserts, while others remained as wood-burning fireplaces.
While the Appellant boldly asserts the Appellees' actions were
identical with respect to every home in HBC, Judge Panella holds
that there was simply no evidence to support this claim. The
Appellant had access to such possible evidence, as he attached
portions of an inspection from a rival chimney contractor to its
complaint. Every cap may have been replaced, but there is no way of
knowing if every cap was replaced identically for each individual
chimney. As the trial court notes, it "cannot infer that chimney
cap replacement is the same for original wood burning stoves as
those that have been re-fitted for gas inserts."
Critical issues such as condition of the chimneys, prior work done
on each chimney, and whether each chimney was usable prior to the
cap replacement varies by each homeowner in the HBC and,
consequently, would require individual inquiry. The Appellant was
not required to poll every single homeowner, but the complete lack
of evidence regarding commonality of claims provided the trial
court with no basis upon which to evaluate the issue. The court did
not err or abuse its discretion in concluding liability could not
be determined on a class-wide basis. Accordingly, the court
properly concluded Appellant had failed to establish commonality of
claims in the proposed class.
Conclusion
Judge Panella has reviewed the certified record and sees no abuse
of discretion in the trial court's conclusion. He, therefore,
affirmed the order denying the motion for class certification.
Order affirmed. Jurisdiction relinquished. Judgment Entered.
A full-text copy of the Court's Nov. 19, 2021 Order is available at
https://tinyurl.com/bdevym2y from Leagle.com.
ATLAS OPERATING: Fails to Pay Overtime Wages, Perez Suit Claims
---------------------------------------------------------------
The case, FRANKIE PEREZ, individually and on behalf of all others
similarly situated, Plaintiff v. ATLAS OPERATING LLC, Defendant,
Case No. 4:21-cv-03744 (S.D. Tex., November 16, 2021) arises from
the Defendant's alleged violations of the Fair Labor Standards
Act.
The Plaintiff was employed by the Defendant from on or about
February 12, 2021 through on or about September 13, 2021 as a
roustabout pusher, performing various manual labor tasks such as
moving tanks, cutting grass, and general maintenance work.
According to the complaint, the Plaintiff and other similarly
situated manual laborers typically worked approximately eighty
hours or more in each 7-day workweek. Regardless of the number of
hours they worked, the Defendant compensated them on a straight
time hourly basis. The Defendant allegedly did not pay them
overtime premium pay at the rate of one and one-half times their
regular rate of pay for all hours worked in excess of 40 per
workweek.
The Plaintiff brings this complaint as a collective action against
the Defendant to recover unpaid overtime wages and aby other back
pay available pursuant to the FLSA, as well as liquidated damages,
litigation costs, attorneys' and expert fees, pre-judgment
interest, and other relief as the Court may deem just and proper.
Atlas Operating LLC operates nearly 1,000 wells and owns
non-operated interests in over 1,000 additional wells. [BN]
The Plaintiff is represented by:
Ricardo J. Prieto, Esq.
Melinda Arbuckle, Esq.
SHELLIST LAZARS SLOBIN LLP
11 Greenway Plaza, Suite 1515
Houston, TX 77046
Tel: (713) 621-2277
Fax: (713) 621-0993
E-mail: rprieto@eeoc.net
marbuckle@eeoc.net
AZARIAHS INNOCENCE: Weekes Files ADA Suit in S.D. New York
----------------------------------------------------------
A class action lawsuit has been filed against Azariahs Innocence,
LLC. The case is styled as Robert Weekes, individually, and on
behalf of all others similarly situated v. Azariahs Innocence, LLC,
Case No. 1:21-cv-10216 (S.D.N.Y., Dec. 1, 2021).
The lawsuit is brought over alleged violation of the Americans with
Disabilities Act.
Azariahs Innocence doing business as Zandra --
https://zandrabeauty.com/ -- is a social good company that educates
+ empowers girls & women across the globe via STEAM Education &
Entrepreneurship.[BN]
The Plaintiff is represented by:
Edward Y. Kroub, Esq.
MIZRAHI KROUB LLP
200 Vesey Street, Ste. 24th Floor
New York, NY 10281
Phone: (212) 595-6200
Email: ekroub@mizrahikroub.com
B&G FOODS: Dec. 17 Deadline to Oppose Class Cert. Bid Sought
------------------------------------------------------------
In the class action lawsuit captioned as SABRINA SILVA and NANCY
SCHIER, on behalf of themselves and all others similarly situated,
v. B&G FOODS, INC., and B&G FOODS NORTH AMERICA, INC., Case No.
4:20-cv-00137-JST (N.D. Cal.), the Parties ask the Court to enter
an order allowing the Defendants to have until December 17, 2021,
to file their opposition to Plaintiff's motion for class
certification.
B&G Foods is an American holding company for branded foods. It was
founded in 1889 to sell pickles, relish and condiments.
A copy of the Parties' motion dated Dec. 1, 2021 is available from
PacerMonitor.com at https://bit.ly/3Ek5Tjo at no extra charge.[CC]
The Plaintiffs are represented by:
Gregory S. Weston, Esq.
THE WESTON FIRM
1405 Morena Blvd., Suite 201
San Diego, CA 92110
Telephone: (619) 798-2006
Facsimile: (619) 343-2789
E-mail: greg@westonfirm.com
The Defendants are represented by:
J. Noah Hagey, Esq.
Matthew Borden, Esq.
David H. Kwasniewski, Esq.
BRAUNHAGEY & BORDEN LLP
351 California St., Tenth Floor
San Francisco, CA 94104
Telephone: (415) 599-0210
E-mail: hagey@braunhagey.com
borden@braunhagey.com
kwasniewski@braunhagey.com
BANK OF AMERICA: $11.5MM Class Deal in Harrison Suit Has Final OK
-----------------------------------------------------------------
In the cases, ANDREA HARRISON, on behalf of themselves and others
similarly situated, Plaintiff v. BANK OF AMERICA CORPORATION, and
DOES 1-100, inclusive, Defendant. MIGUEL MENDOZA, on behalf of
themselves and others similarly situated, Plaintiff v. BANK OF
AMERICA CORPORATION, and DOES 1-100, inclusive, Defendant. KIARASH
KAFFISHAHSAVAR, on behalf of themselves and others similarly
situated, Plaintiff v. BANK OF AMERICA, N.A., a business entity,
form unknown, Defendant, Case Nos. 19-cv-00316-LB, 19-cv-02491-LB,
20-cv-02119-LB (N.D. Cal.), Magistrate Judge Laurel Beeler of the
U.S. District Court for the Northern District of California, San
Francisco Division, grants the Plaintiffs' motion for final
approval of the settlement and attorney's fees and costs.
Background
The Plaintiffs -- three classes of current and former nonexempt
employees who have various jobs at Bank of America's California
branches -- challenge Bank of America's alleged failure to pay them
for their off-the-clock work, provide meal-and-rest breaks, or
reimburse expenses in violation of the California Labor Code,
California's Unfair Competition Law (UCL), and California's Private
Attorney's General Act (PAGA). It is a putative class action under
Federal Rule of Civil Procedure 23.
The parties settled the case. The settlement involves three
class-action cases with wage-and-hour claims. There thus are three
settlement classes: the Harrison Class (tellers), the
Kaffishahsavar Class (bankers, relationship managers and bankers,
and lending and sales specialists), and the Mendoza Class
(operations managers).
The parties engaged in formal and informal discovery (including
motions practice) and then agreed to mediation. To prepare for it,
the defendant produced, and the Plaintiffs' counsel reviewed, data
concerning the class sizes, hourly rates and dates of employment,
timekeeping data, policy manuals, and other relevant data and
discovery. The Plaintiffs engaged an expert to prepare a damages
analysis. The parties had a lengthy mediation with David Rotman, a
respected wage-and-hour mediator, and ultimately accepted the
mediator's proposal and settled the case on Dec. 31, 2020. As part
of that settlement, they stipulated to the filing of a consolidated
complaint. Following the Plaintiff's unopposed motion and a
hearing, the Court preliminarily approved the settlement. The
Plaintiffs moved for final approval of the settlement and
attorney's fees and costs. The Court held a fairness hearing on
Oct. 28, 2021.
There are 20,190 class members (19,895 identified initially plus
295 omitted inadvertently because a job code was not included). The
settlement classes are as follows: The Defendant's current and
former non-exempt employees that fall within at least one of the
following classes:
a. Employees working or who worked in the State of California
for Defendant as a Teller (meaning Job Codes RT600 — FC Client
Service Rep and RT601 - Market Client Service Rep) on or after Oct.
26, 2014, through the date of preliminary approval of the
settlement by the Court (the Harrison Class);
b. Employees working or who worked in the State of California
for Defendant as a Financial Center Operations Manager or a
Financial Center Assistant Manager (meaning Job Codes RM019 -
Assistant Manager-FCC and RM038 - Financial Center Assistant
Manager) on or after March 25, 2015, through the date of
preliminary approval of the settlement by the Court (the Mendoza
Class); and
c. Employees working or who worked in the State of California
for Defendant as a Personal Banker (Job Code RS600), Senior
Personal Banker (Job Code RS601), Relationship Manager (Job Code
BQ055), Relationship Manager and Lending Specialist (Job Code
BQ220), Sales and Service Specialist (Job Code RS860), Relationship
Banker (Job Code RS861), or a Relationship Banker - Hybrid (Job
Code RS862) on or after March 27, 2016, through the date of
preliminary approval of the settlement by the Court (the
Kaffishahsavar Class).
The total non-reversionary Gross Settlement Amount is $11.5
million, and the Net Settlement Amount recovered by the class is
approximately $7,497,202.97 after the following deductions: (1)
$86,250 in PAGA penalties; (2) $30,000 in enhancement payments to
the named Plaintiffs; (3) $84,000 for the claims administration's
expenses; (4) $3.45 million in attorney's fees; (5) $54,356.17 in
litigation costs; and (6) employer payroll taxes of $298,190.86.
The class members will receive a settlement check without
submitting a claim form. Each member's settlement share is
calculated by multiplying the Net Settlement Amount by a fraction.
The numerator is the total number of credited workweeks the class
member worked for the defendant in California during the applicable
time period as a member of a class, and the denominator is the
total number of credited workweeks for the class members who worked
for the defendant in California during the applicable class period
as members of a class. Any Plaintiff who opts out of the settlement
will not receive a share of the settlement proceeds.
Settlement checks will be mailed within 10 days after the
occurrence of both the effective date of the settlement and the
Defendant's deposit of the Gross Settlement Fund into a qualified
settlement-fund account created by the settlement administrator.
The checks are valid for 180 days. Funds from checks that expire or
are returned as undeliverable will be transmitted to the State of
California Unclaimed Property Fund.
The Plaintiffs did a damages assessment that is summarized in the
motion and supporting declarations. The $11.5 million settlement
amount is approximately 20% of the estimated recoverable damages
(exclusive of the derivate claims) in light of the litigation
risks. The settlement results in immediate payment to members of
the classes in meaningful amounts (with an average recovery of $460
at an average blended hourly rate of $18.35). Under the settlement
terms (with 30% of the settlement fund allocated to attorney's
fees), the highest recovery is $1,634.20 and the average recovery
is $370.93.
The release is, in short, (1) a release of all the class claims
under federal or state law for all claims that were pleaded or
could have been pleaded under the facts alleged in the complaint,
(2) a release of the PAGA claims for claims that were pleaded or
could have been pleaded under the facts alleged in the complaint,
and (3) a general release by the named Plaintiffs.
The Court previously approved Simpluris, Inc. to administer the
settlement in accordance with the procedures in the Settlement
Agreement. It complied with the procedures. On July 19, 2021, it
mailed the notices to 19,895 class members informing them of the
lawsuit, the settlement, and their right to opt out or object to
its terms. As of Sept. 23, 2021, no class members objected and five
class members opted out.
On Sept. 23, 2021, the parties reported an error that resulted in
295 Mendoza class members not receiving notice. The parties
presented the Court with two solutions, and the Court selected the
following solution. The notice was amended to give the 295 class
members 35 days from the mailing of the notice to opt out of the
class or object to the terms of the settlement. The notices were to
be sent to the most recent home address that the Bank has for each
class member, or an updated address obtained by Simpluris. If a
notice was undeliverable, Simpluris called the class member on the
most current phone number that the Bank has on record for that
class member. The parties agreed to report to the court within four
days after expiration of the opt-out and objection period about
whether any of the 295 class members objected or opted out.
Ultimately, notice was successful for all, and no class member
objected to the settlement or opted out.
Analysis
Judge Beeler holds the prerequisites of Fed. R. Civ. P. 23(a) and
(b)(3) are met. She certifies the class under Federal Rule of Civil
Procedure 23(b)(3) for settlement purposes only.
With respect to the settlement, Judge Beeler finds that, overall,
the settlement appears fair. She says, the settlement agreement was
the result of an adversarial, non-collusive, and arms-length
negotiation process. It provides good value, given the risks of
litigation, the parties' disputes about damages, and the value of
money to the Plaintiffs now. As discussed, the parties reached the
settlement only after obtaining discovery and conducting a robust
damages assessment. Also, off-the-clock claims can be difficult to
certify because they can involve individualized determinations. The
PAGA allocation is within the range of reasonable settlements.
As to the Class Representatives, the Class Counsel, and the Claims
Administrator, the Court appointed Andrea Harrison, Miguel Mendoza,
Kimberly Jaco, and Kiarash Kaffishahsavar as the class
representatives for their respective classes. The Plaintiffs are an
adequate representative of the other members of their subclasses
and have claims that are typical of the other members' claims.
The Court also appointed the Markham Law Firm (for the Harrison
Class), Marlin & Saltzman, LLP (for the Mendoza Class), and
Quintilone & Associates (for the Kaffishahsavar Class) as the
counsel for settlement purposes only. They have the requisite
qualifications, experience, and expertise in prosecuting class
actions.
Judge Beeler approves Simpluris' costs of $84,000, which will be
paid out of the Gross Settlement Fund.
With respect to the Class Notice, Simpluris provided notice to the
members of the class in the form that the Court approved
previously. Judge Beeler says, the notice met the legal
prerequisites: it was the best notice practicable, satisfied the
notice requirements of Rule 23, adequately advised the class
members of their rights under the settlement agreement, met the
requirements of due process, and complied with the court's order
regarding court notice. The form of notice fairly, plainly,
accurately, and reasonably provided class members with all required
information. Ultimately, the service plan addressed the service
issues for the inadvertently omitted 295 class members.
Recognizing the presumption in the district of a $5,000 award, but
recognizing the work of the named Plaintiffs, Judge Beeler awards
$7,500 each as a service award to the four named Plaintiffs, for a
total of $30,000 (not the requested $40,000).
The Plaintiffs' counsel asks for $3.45 million in attorney's fees
(30%of the settlement fund) and $54,356.17 in costs. Judge Beeler
awards the fees and costs. Based on the counsel's submissions, the
fee award is appropriate as a percentage of the common fund and is
supported by a lodestar cross-check, given the results obtained,
the case itself, the lack of objections to the settlement, and
counsel's litigating the case on a contingency basis. Also, the
counsel has expended $54,356.17 in litigation costs to date, which
is less than the $100,000 estimated by the Settlement Agreement.
Conclusion
Judge Beeler (1) certifies the classes for settlement purposes
only, (2) approves the settlement and authorizes the distribution
of funds set forth, (3) confirms the appointments of the class
representatives, the class counsel, and Simpluris, (4) approves
$3.45 million in attorney's fees, $54,356.17 in costs, $84,000 for
Simpluris' administration costs, $7,500 service awards to each of
the four named Plaintiffs ($30,000 total), and (5) orders the
parties and Simpluris to carry out their obligations in the
settlement agreement. Judge Beeler incorporates by this reference
the terms in the proposed order at ECF No. 88-2.
The Order disposes of ECF Nos. 80 and 83.
A full-text copy of the Court's Nov. 24, 2021 Order is available at
https://tinyurl.com/ykt3pee5 from Leagle.com.
BAYLOR SCOTT: C.C. Suit Seeks to Certify Settlement Class
---------------------------------------------------------
In the class action lawsuit captioned as C.C. & L.C., INDIVIDUALLY
AND AS NEXT FRIEND TO L.L.C.; D. C. & H.C.,
INDIVIDUALLY AND AS NEXT FRIEND TO O.C.; C.S., INDIVIDUALLY AND AS
NEXT FRIEND TO J.A., JR.; S.M. & C.S., INDIVIDUALLY AND AS NEXT
FRIEND TO E.M., v. BAYLOR SCOTT & WHITE HEALTH; BAYLOR SCOTT &
WHITE HEALTH AND WELFARE BENEFITS PLAN; SCOTT & WHITE HEALTH PLAN;
and BAYLOR SCOTT & WHITE HOLDINGS, Case No. 4:18-cv-00828-SDJ (E.D.
Tex.), the Plaintiffs ask the Court to enter an order:
1. certifying a proposed settlement class defined as:
A) All individuals who: (1) were participants or
beneficiaries under a Baylor Scott & White Health &
Welfare Plan and/or its predecessors at any time
between January 1, 2015 and December 31, 2020,
inclusive; (2) have been diagnosed with ASD; and (3)
while they were eligible for benefits under the Plan
and during the Settlement Class Period incurred any
out-of-pocket expenses or incurred but not yet paid
expenses for ABA or NDT or
B) The parents or guardians of the individuals described
in Section A.
2. appointing Plaintiffs C.C., L.C., D.C., H.C., Ch.S., S.M.,
and Ca.S. as the class representatives, and appointing Ms.
Bouer and Ms. Rosenberg of Bouer Law, Mr. England of the
Harris Firm, and Ms. Hamburger of Sirianni Youtz
Spoonemore Hamburger as class counsel.
The Settlement Agreement provides both prospective and
retrospective relief to proposed class members that address
Defendants' treatment limitations and exclusions imposed on Applied
Behavior Analysis ("ABA") therapy and speech, occupational and
physical therapies (collectively "Neurodevelopmental Therapies" or
"NDT") to treat autism spectrum disorder ("ASD").
Specifically, in 2015 and continuing to the present, Defendant
Baylor Scott & White Health and Welfare Benefits Plan and its
legacy plans, the Baylor Medical Benefit Plan and the Scott & White
Health Benefits Plan contained special mental health treatment
exclusions and limitations of coverage for ABA and NDT services to
treat ASD that Plaintiffs alleged violated the Paul Wellstone and
Pete Domenici Mental Health Parity and Addiction Equity Act of
2008. While Defendants began covering ABA therapy to treat ASD
without treatment limitations in 2019, no notice was provided to
participants and beneficiaries of this change, and coverage of NDT
services remained limited.
The Plan was formed by the merger of its two predecessor health
plans, the Baylor Health Benefit Plan (the Baylor Legacy Plan) and
the Scott & White Health Benefit Plan (the S&W Legacy Plan).
Although the Plan Sponsor, Baylor Scott & White Holdings, was
formed as a result of a merger between two health systems that
occurred before 2015, the two separate employee health benefit
plans were not merged until 2016.
A copy of the Plaintiffs' motion to certify class dated Nov. 30,
2021 is available from PacerMonitor.com at https://bit.ly/3EapzpY
at no extra charge.[CC]
The Plaintiffs are represented by:
Eleanor Hamburger, Esq.
SIRIANNI YOUTZ
SPOONEMORE HAMBURGER PLLC
3101 Western Avenue, Suite 350
Seattle, WA 98121
Telephone: (206) 223-0303
Facsimile: (206) 223-0246
E-mail: ehamburger@sylaw.com
- and -
Jodi F. Bouer, Esq.
Kimberly M. Mack Rosenberg, Esq.
BOUER LAW LLC
E-mail: jbouer@bouerlaw.com
kim@bouerlaw.com
361A Nassau St.
Princeton, NJ 08540
Telephone: (609) 924-3990
Facsimile: (609) 228-6750
- and -
Austin H. England, Esq.
THE HARRIS FIRM, P.C.
5050 West Lovers Lane
Dallas, TX 75209
Telephone: (214) 956-7474
Facsimile: (214) 956-7405
E-mail: austin@harrisfirmpc.com
BEACH HOUSE: Nygaard Seeks to Certify Class
-------------------------------------------
In the class action lawsuit captioned as HOLLY NYGAARD and QUANELL
GEE, on behalf of themselves and all others similarly situated, v.
BEACH HOUSE HOSPITALITY GROUP, LLC d/b/a BEACH HOUSE BAR & GRILL;
and EREZ SUKARCHI, individually, Case No. 4:20-cv-00233-JD
(D.S.C.), the PlaintiffS ask the Court to enter an order certifying
the putative class for the Defendants' violation of the South
Carolina Payment of Wages Act.
A copy of the Plaintiffs' motion to certify class dated Dec. 1,
2021 is available from PacerMonitor.com at https://bit.ly/3DkJmlc
at no extra charge.[CC]
The Plaintiffs are represented by:
Bruce E. Miller, Esq.
BRUCE E. MILLER, P.A.
147 Wappoo Creek Drive, Suite 603
Charleston, SC 29412
Telephone: (843) 579-7373
Facsimile: (843) 614-6417
E-mail: bmiller@brucemillerlaw.com
BEAUFORT COUNTY, SC: Munday Seeks to Certify Female Detainee Class
------------------------------------------------------------------
In the class action lawsuit captioned as CHERYL A. MUNDAY and
MARGARET DEVINE, on behalf of themselves and others similarly
situated, v. BEAUFORT COUNTY, PHILIP FOOT, QUANDARA GRANT, JOHN
DOES 1-5 and JANE DOES 1-5, Case No. 9:20-cv-02144-DCN-MHC
(D.S.C.), the Plaintiffs ask the Court to enter an order certifying
a damages class defined as:
"All female pre-classification detainees in the custody of Beaufort
County Detention Center (BCDC) who, upon their admission or return
to BCDC from outside of BCDC, were strip/visual body cavity
searched, while pre-classification males were not, from February
27, 2015, until the class period closes."
Although there are different legal theories regarding the
constitutional violations (essentially Fourth Amendment and Equal
Protection), the class is the same for both and this class
definition encompasses all claims, the lawsuit says.
In the alternative, the Plaintiffs ask that the Court certify a
liability issue class pursuant to Fed. R. Civ. P. 23(c)(4), defined
the same as the Rule 23(b)(3) class, applicable to the claim that
the Defendants' uniform strip/vbc search practices violate Section
1983, and/or as to such claims and issues as the Court may deem
appropriate, tne lawsuit adds.
Beaufort County is a county in the U.S. state of South Carolina.
A copy of the Plaintiffs' motion to certify class dated Dec. 1,
2021 is available from PacerMonitor.com at https://bit.ly/3Ifmwzh
at no extra charge.[CC]
The Plaintiffs are represented by:
Christy R. Fargnoli, Esq.
Bert G. Utsey, III, Esq.
Samuel R. Clawson, Jr., Esq.
CLAWSON FARGNOLI UTSEY, LLC
2 Amherst Street
Charleston, SC 29403
Telephone: (843) 970-2700
Facsimile: (843) 970-1780
E-mail: bert@cfulaw.com
sam@cfulaw.com
christy@cfulaw.com
- and -
Robert S. Metro, Esq.
BAUER & METRO, P.C.
Post Office Box 7965
Hilton Head, SC 29938
Telephone: (843) 842-5297
E-mail: rmetro@bauerandmetro.com
BEELMAN TRUCK: Guszkiewicz Hits Undisclosed Facial Data Retention
-----------------------------------------------------------------
Rick Guszkiewicz, on behalf of himself and other persons similarly
situated, Plaintiff, v. Beelman Truck Company and Samsara Inc.,
Defendants, Case No. 2021L001248 (Ill. Cir., November 24, 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.
Beelman is a long-haul trucking company headquartered in East St.
Louis, Illinois. Its trucks are equipped with a driver monitoring
system provided by Samsara. This system that collected scans of
drivers' facial geometry to analyze driving behaviors and the data
is uploaded via a wireless network. Guszkiewicz says that he has
not been notified where facial data are being stored, for how long
will they be stored and what might happen to this information.
[BN]
Plaintiff is represented by:
Benjamin Scott Thomassen, Esq.
Ari J. Scharg, Esq.
J. Eli Wade-Scott, Esq.
EDELSON P.C.
350 North Lasalle Street, Suite 1300
Chicago, IL 60654
Tel: (312) 589-6370
Fax: (312) 589-6378
Email: bthomassen@edelson.com
ascharg@edelson.com
ewadescott@edelson.com
- and -
Randall K. Pulliam, Esq.
David F. Slade, Esq.
CARNEY BATES AND PULLIAM, PLLC
519 West 7th Street
Little Rock, AR 72201
Telephone: (501) 312-8500
Email: rpulliam@cbplaw.com
dslade@cbplaw.com
BISHOP OF CHARLESTON: Court Denies Aselage's Protective Order Bid
-----------------------------------------------------------------
In the case, Gary Nestler, Viewed Student Female 200, Viewed
Student Male 300, on behalf of themselves and all others similarly
situated, Plaintiffs v. The Bishop of Charleston, a Corporation
Sole, Bishop England High School, Tortfeasors 1-10, The Bishop of
the Diocese of Charleston, in his official capacity, and Robert
Guglielmone, individually, Defendants, Civil Action No.
2:21-613-RMG (D.S.C.), Judge Richard Mark Gergel of the U.S.
District Court for the District of South Carolina, Charleston
Division, denied nonparty Maria Aselage's motion for protective
order regarding redacted portions of her emails.
Facts
The Plaintiffs bring the putative class action alleging that, for
roughly two decades, students at Bishop England High School
("BEHS") were made to disrobe in locker rooms which contained
"large glass windows" whereby BEHS employees, agents, and/or others
may have viewed students.
On May 1, 2019, BEHS employee Jeffrey Scofield was arrested after
BEHS reported to law enforcement that he took videos and made
photographs of male students changing clothes in one of the
school's locker rooms.
The Plaintiff filed the suit on Feb. 3, 2021. The next day, the
Defendants issued a press release regarding the lawsuit that
identified Aselage as Director of Media Relations for the Diocese
and provided her contact information.
The Plaintiffs deposed Aselage on Oct. 7, 2021. During Aselage's
deposition, Aselage's personal attorney instructed her not to
answer questions regarding conversations Aselage had with the
Diocese's General Counsel.
After the deposition, on Oct. 13, 2021, the Plaintiffs served
Aselage and her company Hearsay Communications a subpoena
requesting various communications relevant to the above cited press
release.
The very next day, Aselage filed a motion for order of protection
and to quash subpoena. Therein, Aselage argued "that her
communications and documents with the Defendants and their General
Counsel were privileged and protected as confidential attorney
client material and work product." Aselage sought a court order
shielding her from responding to the subpoena. Aselage's motion
included neither documents for the Court's in camera review nor a
privilege log.
On Nov. 3, 2021, the Court denied Aselage's motion. It found
Aselage had not met her burden of showing the subpoenaed documents
were privileged or otherwise contained attorney work product. To
the contrary, the Court held that Aselage was not the functional
equivalent of an employee and that Defendants had waived any
privilege in their communications with Aselage.
The Court explicitly held that "no attorney-client relationship
exists between the Diocese and Aselage and Aselage's communications
with the Diocese's General Counsel are not entitled to protection
from discovery." Accordingly, it ordered that Aselage respond to
Plaintiff's subpoena by Nov. 12, 2021. The Court further ordered
that Aselage's deposition be reconvened and terminated in
accordance with said order.
On Nov. 12, 2021, Aselage filed the instant motion, claiming that
"she is producing emails and documents responsive to the subpoena"
but that "a small number of emails include legal advice, strategic
plans, and development of defense themes by in house and outside
counsel." She seeks a protective order regarding various emails she
now identifies in a privilege log.
On Nov. 18, 2021, the Plaintiffs responded in opposition to the
instant motion. They attached correspondence with Aselage's
attorney. The correspondence suggests that, prior to filing her
First Motion, Aselage's counsel did not review the emails in
question. On Nov. 9, 2021, roughly six days after the Court issued
the above order, Aselage's counsel wrote to the Plaintiffs'
counsel, "I was made aware of the nature of the emails regarding
the subpoena, however, there are approximately 200 emails. Ms.
Aselage began collecting and sorting the emails after I hade her
aware of the subpoena."
Legal Standard/Analysis
Judge Gergel explains that Fed. R. Civ. P. 26(b)(5)(A) provides
that when a party withholds information otherwise discoverable by
claiming that the information is privilege, the party must: (i)
expressly make the claim; and (ii) describe the nature of the
documents, communications, or tangible things not produced or
disclosed—and do so in a manner that, without revealing
information itself privileged or protected, will enable other
parties to assess the claim.
According to Judge Gergel, generalized claims of privilege are
insufficient. To comply with the requirements set forth in Rule
26(b)(5)(A), a party seeking protection from producing documents
must produce a privilege log that "identifies each document
withheld, information regarding the nature of the
privilege/protection claimed, the name of the person
making/receiving the communication, the date and place of the
communication, and the document's general subject matter."
Judge Gergel denies Aselage's motion. As made clear, the Court
already ruled on the very issues Aselage attempts to raise in her
current motion. Specifically, it found that Aselage had not met her
burden of showing her communications with the Defendants were
privileged or that any portion of them were otherwise entitled to
protection. Judge Gergel will not revisit this issue. Further, when
Aselage filed her First Motion, she provided neither documents for
the Court's in camera review nor a privilege log for the Court or
the Plaintiffs' consideration. The failure to file a privilege log
prior to or with her First Motion is arguably fatal.
Conclusion
For the reasons he stated, Judge Gergel denied Aselage's motion for
protective order. Aselage was to produce all subpoenaed documents
in unredacted form on Nov. 26, 2021. Further, on Dec. 3, 2021,
Aselage's deposition was due to be reconvened so that the
Plaintiffs may question her regarding the documents she was ordered
to but did not produce.
A full-text copy of the Court's Nov. 19, 2021 Order & Opinion is
available at https://tinyurl.com/3925m5h7 from Leagle.com.
BJA MASONRY: Weeks Sues Over Unpaid Wages for Construction Workers
------------------------------------------------------------------
DANIEL J. WEEKS, individually and on behalf of all others similarly
situated, Plaintiff v. BJA MASONRY, LLC; GILBERT C. BORRADAILE; and
CAROL BORRADAILE, Defendants, Case No. 1:21-cv-03064-JMC (D. Md.,
December 1, 2021) is a class action against the Defendants for
their failure to pay the Plaintiff and similarly situated
construction workers minimum wages and overtime wages for all hours
worked in violation of the Fair Labor Standards Act, the Maryland's
Wage and Hour Law, and the Maryland Wage Payment and Collection
Law.
The Plaintiff worked for the Defendants as a carpenter in and
around Ocean City, Maryland from approximately December 2018 until
March 15, 2021.
BJA Masonry, LLC is a construction and masonry company, with its
principal place of business located at 10800 Navy Page Lane, Unit
105, Berlin, Maryland. [BN]
The Plaintiff is represented by:
Wes P. Henderson, Esq.
Patrick D. Gardiner, Esq.
HENDERSON LAW, LLC
2127 Espey Court, Suite 204
Crofton, MD 21114
Telephone: (410) 721-1979
Facsimile: (410) 721-2258
E-mail: wes@hendersonlawllc.com
patrick@hendersonlawllc.com
BOSCH SOLAR: Objection to Reply Evidence in Rojas Suit Sustained
----------------------------------------------------------------
In the case, STEVE R. ROJAS and ANDREA N. ROJAS, on behalf of
themselves and all others similarly situated, Plaintiffs v. BOSCH
SOLAR ENERGY CORPORATION, Defendant, Case No. 18-cv-05841-BL (N.D.
Cal.), Judge Beth Labson Freeman of the U.S. District Court for the
Northern District of California, San Jose Division, issued an
Order:
a. sustaining the Defendant's objection to the Plaintiffs'
reply evidence in its entirety;
b. denying as moot the Defendant's alternative request for
leave to file a sur-reply; and
c. denying the Plaintiffs' administrative motion for leave to
file a response to the Defendant's objection.
The Defendant has filed an objection to certain evidence filed with
the Plaintiffs' reply in support of their motion for class
certification. In the alternative, the Defendant requests leave to
file a sur-reply. The Plaintiffs have filed an administrative
motion for leave to file a response to the Defendant's objection,
which is opposed by the Defendant.
Judge Freeman denied the Plaintiffs' administrative motion for
leave to file a response to the Defendant's objection. She says,
this district's Civil Local Rules do not contemplate a response to
an objection to reply evidence, and she does not find a response to
be necessary in the case.
The Defendant objects to three pieces of reply evidence: (1) the
affidavit of the Plaintiffs' notice expert, Todd B. Hilsee; (2)
Paragraphs 2-10 and Exhibits A and D to the supplemental
declaration of David M. Birka-White; and (3) the declaration of
Michael V. Garcia.
With respect to the first piece of evidence, Mr. Hilsee has not
previously been disclosed as an expert in the case. He now offers
expert opinion on a key issue, the adequacy of the Defendant's
recall of the solar modules that are the subject of the class
action. The Defendant argues that it would be unfair for the Court
to consider Mr. Hilsee's new expert opinion submitted for the first
time on reply, as the Defendant has not had an opportunity to
depose Mr. Hilsee or to obtain a rebuttal expert.
With respect to the other two pieces of evidence, the identified
portions of the supplemental declaration of David M. Birka-White,
and the declaration of Michael V. Garcia, the Defendant argues that
the evidence contains new factual matter on damages and therefore
should not be considered on reply. Moreover, the Defendant points
out that the identified portions of the supplemental declaration of
David M. Birka-White, and the declaration of Michael V. Garcia, are
not even mentioned in the Plaintiffs' reply brief. The Court notes
that the Plaintiffs filed a "Corrected Reply" after Defendant filed
its objection, adding references to the supplemental declaration of
David M. Birka-White, and the declaration of Michael V. Garcia.
Judge Freeman finds that the consideration of the Plaintiffs' reply
evidence would be unfair and prejudicial to the Defendant and,
therefore, sustained the Defendant's objection in its entirety. She
has considered whether it might be more appropriate to accept the
reply evidence and allow the Defendant to file a sur-reply.
However, to give the Defendant a fair opportunity to respond to Mr.
Hilsee's expert opinion, the Court would have to continue the
hearing on the Plaintiffs' motion for class certification for a
sufficient length of time that Defendant could depose Mr. Hilsee
and obtain a rebuttal expert.
Judge Freeman declines to disrupt the case schedule in this manner,
particularly since the Court previously granted multiple prior
requests by the parties to extend the deadlines for briefing and
hearing the Plaintiffs' motion for class certification, before
finally denying the most recent request for continuance in an order
issued Oct. 14, 2021.
Of additional concern is the likelihood that continuance of the
class certification hearing would require continuance of the last
date for hearing summary judgment motions and continuance of the
trial date. The Court currently is setting trials in 2024. Given
the age of the case, Judge Freeman does not find potential
significant delays in the case schedule to be reasonable. Thus,
granting the Defendant leave to file a sur-reply is not a feasible
option.
A full-text copy of the Court's Nov. 23, 2021 Order is available at
https://tinyurl.com/4as65wac from Leagle.com.
BURGER KING: Inspection Found No Black Mold, Backed-Up Sewage
-------------------------------------------------------------
Andrew Sullender at Springfield News reports that former Burger
King general manager strikes outside of Cherry and National St. on
November 22, 2021. Despite allegations from former staff that a
Springfield Burger King suffered from black mold and backed-up
sewage, a new health inspection only cited lesser issues days after
employees walked out.
That walkout at the National and Cherry Street Burger King was
prompted by an impending health inspection.
"I didn't want my name associated with what was going on. The
sewage problems alone, according to health department guidelines -
I can't open the store. I was being told to open that store
anyway," said Victoria Springer, a former manager of the Burger
King location who led the walkout.
Inspection did not find many of the issues workers described, but
health inspectors promised to return after employees shared video
and photos of their claims.
Since walking out, at least a half-dozen workers have picketed
outside the location - yelling "black mold in the kitchen" to
potential customers.
The new inspection found two "priority violations" at the Burger
King. Despite being cleaned, there was still a "moderate buildup"
of grease on the kitchen's product hold unit. The inspector
observed a drain cleaning tool "stuck between the bottom two trays
of plastic wrapped hamburger buns." These items were discarded at
the inspector's request.
Inspectors also noted the continued uncleanliness of the
establishment but did not describe mold or overflowing sewage.
"The floors in food preparation area (especially under equipment
and near drains), walk-in refrigerator and freezer and dry storage
areas were not clean," it read.
Inspectors did find that the Burger King's condition warranted
another visit, which will take place Dec. 1.
"We discussed the issues observed and determined that another visit
was warranted to determine compliance."
More:Is Whataburger coming to Republic? The city's website
indicates it could be
In response to the new inspection, Springer said she was glad that
their walkout prompted action to clean up the kitchen.
"I am glad to have seen that they have had out plumbers and other
maintenance since our walkout. This is what myself and other
managers and crew fought so hard for before the walkout. I am sorry
it took us walking out to make this happen, yet proud to know that
we have accomplished our main goal to affect change."
Springer added that she and her co-workers are pursuing a
class-action lawsuit to address their allegedly poor working
conditions.
"I hope in the future they will listen to management and crew and
not turn a blind eye to the problems. We have had other problems
that need addressed and are seeking representation for a possible
class-action suit," she said.
"Addressing unhealthy work conditions. Unrealistic work
expectations. Possible altering of some hours in order for them to
avoid paying overtime. Still a long way to go. We hope all fast
food workers will fight for better work environments." [GN]
BUTLER MOTORS: Orders Denying Bids to Dismiss Benosky Suit Affirmed
-------------------------------------------------------------------
In the case, Butler Motors, Inc., et al., Appellants-Defendants v.
Michael Benosky, et al., Appellee-Plaintiffs, Court of Appeals Case
No. 20A-PL-1871 (Ind. App.), the Court of Appeals of Indiana
affirmed the trial court's two interlocutory orders.
The orders denied a Rule 12(B)(6) motion to dismiss filed by a
group of automobile dealer defendants ("Dealers") and a separate
Rule 12(B)(6) motion to dismiss filed by a group of automobile
dealers who were named as defendants under the alter ego doctrine
("Alter Ego Dealers").
Introduction
The interlocutory appeal involves 14 separate class action causes
that were consolidated for pre-trial purposes into one cause in the
Indiana Commercial Court in Marion County ("the trial court"). A
group of consumers, who had purchased automobiles from various
automobile dealers, filed class action complaints against the
automobile dealers, who then filed Indiana Trial Rule 12(B)(6)
motions to dismiss. The trial court denied the motions and
certified its orders for interlocutory appeal.
Background
The Plaintiffs in the underlying 14 consolidated class action
causes ("Consumers") are customers who purchased or leased an
automobile for personal use from Dealers. As part of the various
transactions, which occurred between 2013 and 2020, the Dealers
charged Consumers a document preparation fee ("Doc Fee") of less
than $200. The Dealers listed the Doc Fee as an itemized expense in
the sales contracts but neither included the Doc Fee in the
advertised price of the vehicle nor negotiated the Doc Fee with
Consumers.
The appeal ultimately stems from the charging of those Doc Fees,
and it involves the Deceptive Consumer Sales Act ("DCSA") under
INDIANA CODE Section 24-5-0.5-3 ("Deceptive Acts Statute") and the
Motor Vehicle Dealer Services Act ("MVDSA") under INDIANA CODE
Section 9-32-13-7 ("MVDSA Doc Fee Statue").
In their class action complaints, Consumers raised three claims:
(1) a violation of the DCSA; (2) constructive fraud; and (3) unjust
enrichment. All these claims were based on the Consumers'
allegation that, between 2013 and 2020, Dealers had charged a Doc
Fee that was contrary to the MVDSA Doc Fee Statute, INDIANA CODE
Section 9-32-13-7. More specifically, Consumers' complaints
alleged, in part, that Dealers had affirmatively misrepresented the
Doc Fee as a fee incurred by the Dealers for preparation of
documents and that Dealers had charged Consumers a Doc Fee that did
not reflect expenses actually incurred for the preparation of
documents, had not been negotiated, and had not been included in
the advertised price, all in violation of the DCSA under INDIANA
CODE Section 24-5-0.5-3(a).
Additionally, the Consumers alleged that the Dealers' charging of
an unduly excessive Doc Fee was in violation of the DCSA under
INDIANA CODE Section 24-5-0.5-10(b)(3). Consumers alleged that the
Dealers' conduct "constituted an incurable deceptive act because it
was done as part of a scheme, artifice, or device, with the intent
to defraud or mislead" in violation of the DCSA. In regard to the
constructive fraud claim, the Consumers alleged, in part, that the
Dealers had a duty of good faith and fair dealing to Consumers and
that Dealers, who had superior knowledge, had violated that duty by
making various representations and omissions. They further alleged
that they had relied upon the Dealers' representations and
omissions and that they had been injured. Finally, as for the
unjust enrichment claim, Consumers alleged, in part, that Dealers
had improperly requested, received, and retained funds from
Consumers.
The Consumers' complaints that included the Alter Ego Dealers as
defendants also alleged that these Alter Ego Dealers "operated as
alter egos and as a single business enterprise with respect to the
charging of unlawful Doc Fees." Additionally, the Consumers alleged
that the Alter Ego Dealers "shared similar corporate names; shared
overlapping officers, directors, and employees; had similar
business purposes; shared certain offices; advertised together as a
single unit on their website; and generally operated in an
interconnected and controlled way, such that they could be
considered a single unit for liability purposes."
On March 2, 2020, the Consumers filed, pursuant to Indiana Trial
Rule 42(A), a motion to consolidate their pending Commercial Court
cases for pre-trial purposes, and the trial court granted that
motion. Additionally, following a request by Consumers and pursuant
to INDIANA CODE Section 34-33.1-1-1, the trial court issued an
order notifying the Indiana Attorney General that the consolidated
cases may call into question the constitutionality of the Doc Fee
Statute, INDIANA CODE Section 9-32-13-7, to the extent that
Consumers may potentially argue that retroactive application of the
statute was unconstitutional.
On March 30, 2020, the Dealers filed a consolidated motion to
dismiss ("Consolidated MTD") and Alter Ego Dealers filed a combined
motion to dismiss ("Alter Ego MTD"). They filed their motions under
Indiana Trial Rule 12(B)(6), seeking to dismiss the complaints of
all Consumers.
On June 16, 2020, the trial court held a hearing on the two pending
motions. Thereafter, on July 31, 2020, the trial court issued the
two interlocutory orders at issue in the appeal. The trial court's
comprehensive orders addressed in detail the arguments raised by
Dealers and Alter Ego Dealers and contained the trial court's
reasoning for denying their motions to dismiss.
In relevant part, the trial court, for purposes of the Dealers'
Consolidated MTD, treated the 2019 Doc Fee Amendment as applying
retroactively and found that it did not expressly authorize Dealers
to charge Doc Fees under $200. Thus, the trial court determined
that the Consumers' DCSA claims were not subject to dismissal. The
trial court also determined that the MVDSA did not abrogate
Consumers' common law claims of constructive fraud and unjust
enrichment and that Consumers' complaints had adequately alleged
those claims to survive a Rule 12(B)(6) motion to dismiss.
Additionally, it determined that Consumers' complaints had
adequately alleged fraudulent concealment to survive the Dealers'
statute of limitations argument at the motion to dismiss stage.
Finally, the trial court determined, in relevant part, that the
Consumers' complaints would survive Alter Ego Dealers' MTD because
the Consumers had sufficiently demonstrated a claim under the alter
ego doctrine and had standing.
Thereafter, the Dealers and the Alter Ego Dealers filed motions
requesting the trial court to certify its two orders and to stay
the proceedings. The trial court granted both requests. The Dealers
and the Alter Ego Dealers then sought permission to file the
interlocutory appeal, and the Court of Appeals granted their
request.
Discussion
In the appeal, the Dealers challenge the trial court's
interlocutory order denying their Consolidated MTD, and the Alter
Ego Dealers challenge the trial court's interlocutory order denying
their Alter Ego MTD.
Given its procedural posture of reviewing the denial of a Trial
Rule 12(B)(6) motion to dismiss, the Court of Appeals looks at the
allegations of the DCSA claims in the Consumers' complaints,
accepting them as true, to determine whether they establish any set
of circumstances under which Consumers would be entitled to relief.
It finds that the Consumers' complaints alleged that the Dealers'
charges of the Doc Fees at issue were in violation of the DCSA
under INDIANA CODE Section 24-5-0.5-3(a) and INDIANA CODE Section
24-5-0.5-10(b)(3). The Consumers alleged that the Dealers' conduct
"constituted an incurable deceptive act because it was done as part
of a scheme, artifice, or device, with the intent to defraud or
mislead" in violation of the DCSA. Because the Consumers'
complaints, in relation to their DCSA claims, set forth allegations
upon which relief could be granted, the Court of Appeals holds that
the trial court did not err by denying the Dealers' Consolidated
MTD in regard to the Consumers' DCSA claims.
The Court of Appeals now turns to the Dealers' argument that the
trial court erred by concluding that the Consumers' complaints
contained adequate allegations to survive the Dealers' statute of
limitations argument. The Dealers had argued that the two-year
statute of limitations applicable to DCSA claims barred three of
the individual consumer plaintiffs' DCSA claims. The Consumers
argue that the 2019 Doc Fee Amendment of the MVDSA did not abrogate
their claims under common law.
The Court of Appeals agrees with the Consumers and the trial court.
It says, the Dealers' abrogation argument seems to rely on the
incorrect premise that the Consumers' complaint alleges a claim
specifically for a violation of the MVDSA, which has no private
right of action. However, the Consumers are not alleging a claim
that the Dealers' conduct was in direct violation of the MVDSA.
Instead, their claims allege that the Dealers' conduct was in
violation of the DCSA and constituted constructive fraud and unjust
enrichment. It is presumed that when the legislature amended the
2019 Doc Fee Amendment, "it was aware of the common law and did not
intend to make a change unless it expressly or unmistakably implied
that the common law no longer controled." In the case, the
legislature made no such express implication. Nor did it indicate
that the amended statute was "clearly designed as a substitute for
the common law." Therefore, the Court of Appeals concludes that the
trial court did not err by concluding that the common law claims
were not precluded by the 2019 Doc Fee Amendment.
The Court of Appeals addresses the Dealers' argument that the
Consumers' complaints insufficiently stated claims for relief for
constructive fraud and unjust enrichment. Specifically, the Dealers
recognize that Consumers alleged that there was a buyer-seller
relationship but contend that the Consumers have not sufficiently
alleged any express or affirmative statement made to Consumers that
would support their claim. They argue that the Consumers' unjust
enrichment argument should have been dismissed because the parties
had a contract.
In regard to the constructive fraud claim, the Consumers alleged,
in part, that the Dealers had a duty of good faith and fair dealing
to the Consumers and that the Dealers, who had superior knowledge,
had violated that duty by making various representations and the
omissions. The Consumers further alleged that they had relied upon
the Dealers' representations and omissions and that they had been
injured.
Taking these facts as true and viewing the pleadings with every
reasonable inference in the Consumers' favor, the Court of Appeals
concludes that the Consumers have pleaded the operative facts
necessary to establish a claim of constructive fraud. In other
words, because it does not appear to a certainty on the face of the
complaints that the Consumers are not entitled to relief, a
dismissal of their complaints would have been improper.
The trial court also did not err by denying the Dealers' motion to
dismiss the Consumers' unjust enrichment claim. Taking the the
allegations in the Consumers' complaints as true, the Court of
Appeals concludes that the Consumers have established a set of
circumstances under which they could be entitled to relief.
Accordingly, the trial court did not err in denying the Dealers'
motion to dismiss the Consumers' unjust enrichment claim.
The final issue the Court of Appeals address in the appeal is the
Alter Ego Dealers' challenge to the trial court's interlocutory
order denying their Alter Ego MTD. In its order, the trial court
determined, in relevant part, that the Consumers' complaints
survived the Alter Ego Dealers' motion to dismiss because the
Consumers had sufficiently demonstrated a claim under the alter ego
doctrine and therefore standing.
Because the Consumers' allegations are sufficient to establish
circumstances under which they could be entitled to relief if they
are able to prove their claim, the Court of Appeals concludes the
trial court did not err by denying the Alter Ego Dealers' motion to
dismiss for lack of standing under the alter ego doctrine.
Order
Based on the foregoing, Judge Rudolph Pyle, III, writing for the
Court of Appeals, affirmed. Najam, J., and Tavitas, J., concur.
A full-text copy of the Court's Nov. 24, 2021 Order is available at
https://tinyurl.com/2p9cuu9e from Leagle.com.
Michael P. Shanahan, William N. Ivers, Geoffrey Grodner, Indiana
Dealer Counsel Mallor/Grodner LLP, in Indianapolis, Indiana; Thomas
A. Barnard, Jeffrey D. Stemerick, Taft Stettinius & Hollister LLP,
in Indianapolis, Indiana; Wayne C. Turner, Kenneth J. Munson,
Hoover Hull Turner LLP, in Indianapolis, Indiana; Sean Burke,
Hamish S. Cohen, Ray Biederman, Mattingly Burke Cohen & Biederman
Lafayette, LLP, in Indianapolis, Indiana; Donn H. Wray, Glenn
Bowman, Stoll Keenon Ogden PLLC, in Indianapolis, Indiana; Karl L.
Mulvaney, Margaret M. Christensen, S. Katherine Dickey, Dentons
Bingham Greenebaum, LLP, in Indianapolis, Indiana, Attorneys for
the Appellants.
Irwin B. Levin -- ILEVIN@COHENANDMALAD.COM -- Richard E. Shevitz --
RSHEVITZ@COHENANDMALAD.COM -- Vess A. Miller --
VMILLER@COHENANDMALAD.COM -- Lynn A. Toops --
LTOOPS@COHENANDMALAD.COM -- Cohen & Malad, LLP, in Indianapolis,
Indiana; John J. Morse, Michael N. Red, Jr., Rebekah L. Phillips,
Morse & Bickel, P.C., in Indianapolis, Indiana; Deborah J. Caruso,
Joshua W. Casselman, Rubin & Levin, PC, in Indianapolis, Indiana,
Duran L. Keller, Keller Law, Attorneys for the Appellees.
CANADA: Claims Submitted in Military Sexual Misconduct Lawsuits
---------------------------------------------------------------
Jacques Gallant at thestar.com reports that nearly 19,000 Canadian
Armed Forces and Department of Defence personnel have submitted
claims in the settlement of class-action lawsuits against the
federal government over sexual misconduct in the military.
At deadline, 18,796 claims had been filed by current and former CAF
and DND employees.
Of those 5,055 have already been approved for an initial payment or
have been paid.
Approximately 57 per cent of the claimants are female, 42 per cent
are male, and one per cent identify as other.
Nearly 33 per cent of all claims were submitted this month alone.
The CAF has been rocked by a sexual misconduct crisis this year,
with current and former senior leaders under investigation or
facing charges.
The federal government has faced intense criticism for failing to
get the problem under control. Newly appointed Defence Minister
Anita Anand has said dealing with the crisis is her top priority.
The settlement was approved by the Federal Court in 2019 following
class-action lawsuits filed against the federal government in 2016
and 2017. Those lawsuits alleged sexual harassment, sexual assault
and discrimination in the Canadian Forces and at the Defence
Department.
The settlement provides for compensation up to $155,000, changes to
military and veterans affairs policies, and the option for sexual
misconduct survivors to participate in restorative engagement,
during which they can share their experiences with senior
officials.
More than 4,800 claimants requested restorative engagement.
Although it was not part of the settlement agreement, one of the
lawyers who brought the lawsuits said the federal government also
indicated in court that it would apologize.
"It has been more than two years since that promise has been made
and the apology should be provided as soon as possible," Jonathan
Ptak said in an email.
Anand's office said an apology will take place before the end of
the year, and that survivors' groups are being consulted about it.
The period within which to submit a claim has now ended, but Ptak
said class members can seek a deadline extension based on
exceptional personal circumstances.
It's important to recognize that sexual misconduct in the Canadian
military "is still something that is happening - it's not something
that has happened in the past and is now settled," said Colten
Skibinsky, who made a successful claim.
Skibinsky shared his story with the Star about being sexually
assaulted while serving in the army in 2013. He said the high
percentage of claims from men shows that the problem is not just a
women's issue.
"I think anybody who says it's specifically a women's problem is
not correct and it's almost an attempt to discredit the true nature
of the problem," he said. [GN]
CANDID CARE: Thomas Seeks Pay for Off-the-Clock Work
----------------------------------------------------
Kevin Thomas, individually and on behalf of all similarly situated
individuals, Plaintiff, v. Candid Care Co., Defendant, Case No.
21-cv-05472 (S.D. Ohio, November 24, 2021), seeks to recover unpaid
wages and overtime premiums, liquidated damages, penalties,
injunctive and declaratory relief, attorneys' fees and costs, pre-
and post-judgment interest and any other remedies under the Fair
Labor Standards Act, the Ohio Minimum Fair Wage Standards and the
Ohio Prompt Pay Act.
Thomas worked for Candid Care as an hourly, non-exempt customer
service agent. Candid Care required employees to monitor and
respond to messages posted on an application named "Slack," which
is a messaging application used to communicate with co-workers
about work-related questions or issues. They were required to
monitor and respond to messages on Slack regardless of whether they
were on the clock or off the clock.
Candid Care allegedly did not compensate agents for time spent
monitoring and responding to messages on Slack when they were off
the clock and were paid only when they are ready to take customer
calls at the exact start time of their scheduled shift. [BN]
Plaintiff is represented by:
Hans A. Nilges, Esq.
Shannon M. Draher, Esq.
NILGES DRAHER LLC
7266 Portage Street, N.W., Suite D
Massillon, OH 44646
Telephone: (330) 470-4428
Facsimile: (330) 754-1430
Email: hans@ohlaborlaw.com
sdraher@ohlaborlaw.com
- and -
Jeffrey J. Moyle, Esq.
NILGES DRAHER LLC
1360 E. 9th Street, Suite 808
Cleveland, OH 44114
Telephone: (216) 230-2955
Facsimile: (330) 754-1430
Email: jmoyle@ohlaborlaw.com
CAPITOL CITY: Stovall Sues Over Unpaid Overtime for Caretakers
--------------------------------------------------------------
JOLANDA STOVALL, individually and on behalf of all others similarly
situated, Plaintiff v. CAPITOL CITY RESIDENTIAL HEALTH CARE TN LLC,
Defendant, Case No. 1:21-cv-01198-STA-jay (W.D. Tenn., November 30,
2021) is a class action against the Defendant for its failure to
compensate the Plaintiff and similarly situated caretakers overtime
pay for all hours worked in excess of 40 hours in a workweek in
violation of the Fair Labor Standards Act.
The Plaintiff was employed by the Defendant as a full-time
caretaker employee in Jackson, Tennessee.
Capitol City Residential Health Care TN LLC is a home health care
service provider with its principal place of business located at
Suite 202, 5100 Poplar Ave., Memphis, Tennessee. [BN]
The Plaintiff is represented by:
J. Russ Bryant, Esq.
Robert E. Turner, IV, Esq.
Robert E. Morelli, III, Esq.
JACKSON, SHIELDS, YEISER, HOLT, OWEN & BRYANT
262 German Oak Drive
Memphis, TN 38018
Telephone: (901) 754-8001
Facsimile: (901) 754-8524
E-mail: rbryant@jsyc.com
rturner@jsyc.com
rmorelli@jsyc.com
CDR MAGUIRE: Barker Seeks Unpaid Overtime Wages for Safety Workers
------------------------------------------------------------------
CODY DWAYNE BARKER, individually and on behalf of all others
similarly situated, v. CDR MAGUIRE INC. a Delaware corporation,
Case No. 6:21-cv-01720-AA (D. Or., Dec. 1, 2021) seeks to recover
unpaid overtime brought under the Fair Labor Standards Act and
Oregon Wage and Hour Laws.
This action seeks compensatory and liquidated damages, attorney's
fees, taxable costs of court, pre- and post-judgment interest and
penalty wages for Defendant's willful failure to pay wages when
due, including the correct amount of overtime wages, and other
relief pursuant to 29 U.S.C. section 216(b) and Oregon Wage and
Hour Laws for Plaintiff and for all others similarly situated in
the course of their employment with Defendant.
CDR Maguire is a Delaware corporation with headquarters in Miami,
Florida. The Defendant has an Emergency Management division that
provides disaster recovery services.
From January 2021 to June 2021, the Defendant employed Plaintiff
and other similarly situated individuals in providing disaster
recovery services following wildfires that tore through Oregon in
2020.
CDR Maguire employed hourly non-exempt employees with general
worksite safety oversight responsibilities, including, but not
limited to, Safety Officers and Arborists, ("Safety Workers") on
the Oregon Wildfire Recovery Projects in 2020 and 2021, which
projects aimed to safely clear trees that were damaged in the 2020
Oregon wildfires.
Plaintiff Barker was employed by Defendant as a Safety Worker,
assigned to work on OWR Projects in Lane, Linn, Marion, Jefferson,
Lincoln, and Deschutes Counties, Oregon from on or around January
20th, 2021 to June 30th, 2021.
The Plaintiff contends that CDR Maguire set an hourly rate of pay
for each hour worked by Safety Workers on the OWR Projects. It was
CDR Maguire's practice to pay Safety Workers their hourly rate of
pay for all hours worked regardless of how many hours were worked
in a workweek. CDR Maguire did not pay him and other similarly
situated Safety Workers overtime at the rate of one and one-half
times the regular hourly rate for all hours worked over 40 hours in
a workweek as required by the FLSA.
The Plaintiff alleges that, from February 1, 2021 to June 30, 2021,
he was underpaid in each workweek in which he worked overtime and
did not receive pay at one and one-half times his regular rate of
pay for all hours worked over 40 in a workweek.[BN]
The Plaintiff is represented by:
Andrew S. Lewinter, Esq.
ANDREW LEWINTER, ATTORNEY, P.C
132 E.. Broadway, Suite 821
Eugene, OR 97401
E-mail: andrew@lewinterlaw.com
- and -
Alan J. Leiman, Esq.
LEIMAN LAW, P.C.
PO Box 5383
Eugene, OR 97405
E-mail: alan@leimanlaw.com
CELSIUS HOLDINGS: Hezi Sues Over Energy Drink's False Ad
--------------------------------------------------------
Amit Hezi and Joseph Nina, on behalf of themselves and all others
similarly situated, Plaintiff, v. Celsius Holdings Inc., Defendant,
Case No. 21-cv-09892, (S.D. N.Y., November 23, 2021), seeks redress
over deceptive practices associated with the advertising, labeling
and sale of Defendant's fitness beverages in breach of express
warranty and in violation of New York general business laws.
Celsius manufactures, markets, advertises, and sells a line of
fitness beverages that are touted as "healthy energy" drinks with
"no preservatives artificial colors or flavors." The beverages are
based on a proprietary formulation that provides a number of
vitamins, minerals and other healthful ingredients such as guarana,
ginger root and green tea. However, Plaintiffs contests that said
product derives its taste from a lab synthesized ingredient. [BN]
Plaintiff is represented by:
Ryan J. Clarkson, Esq.
Bahar Sodaify, Esq.
Zachary T. Chrzan, Esq.
Christina N. Mirzaie, Esq.
CLARKSON LAW FIRM, P.C.
555 Madison Ave., 5th Fl.
New York, NY 10022
Tel: (213) 788-4050
Fax: (213) 788-4070
Email: rclarkson@clarksonlawfirm.com
bsodaify@clarksonlawfirm.com
zchrzan@clarksonlawfirm.com
cmirzaie@clarksonlawfirm.com
CLAMPART LLC: Sosa Files ADA Suit in S.D. New York
--------------------------------------------------
A class action lawsuit has been filed against Clampart, LLC. The
case is styled as Yony Sosa, on behalf of himself and all other
persons similarly situated v. Clampart, LLC, Case No. 1:21-cv-10158
(S.D.N.Y., Nov. 30, 2021).
The lawsuit is brought over alleged violation of the Americans with
Disabilities Act.
ClampArt -- https://clampart.com/ -- represents a wide range of
emerging and mid-career artists of all media with a specialization
in photography.[BN]
The Plaintiff is represented by:
Michael A. LaBollita, Esq.
GOTTLIEB & ASSOCIATES
150 E. 18 St., Suite PHR
New York, NY 10003
Phone: (212) 228-9795
Email: michael@gottlieb.legal
COLES COUNTY, IL: Seeks Dec. 21 Extension to File Class Cert. Reply
-------------------------------------------------------------------
In the class action lawsuit captioned as MERVIN WOLFE, et al., v.
COLES COUNTY STATE'S ATTORNEY'S OFFICE, et al., Case No.
2:21-cv-02206-CSB-EIL (C.D. Ill.), the Defendant asks the Court to
enter an order extending the deadline to file its response to
Plaintiffs' motion for class certification, 23, an additional 21
days from November 30, 2021 to December 21, 2021.
The Defendant previously moved to dismiss this action based upon
federal abstention doctrine and failure to state a claim.
Thereafter, the Plaintiffs filed a motion for class certification.
The Defendant's response is due today, November 30, 2021.
However, the Defendant requires additional time to consider
Plaintiffs' motion and draft an appropriate response.
A copy of the Defendant's motion dated Nov. 30, 2021 is available
from PacerMonitor.com at https://bit.ly/3I9pEfX at no extra
charge.[CC]
The Defendant is represented by:
Kwame Raoul, Esq.
Joseph Bracey, Jr., Esq.
ILLINOIS OFFICE OF STATE'S ATTORNEYS
APPELLATE PROSECUTOR,
500 South Second Street
Springfield, IL 62701
Telephone: (217) 557-0261
Facsimile: (217) 782-8767
E-mail: joseph.bracey@ilag.gov
gls@ilag.gov
CORAL SPRINGS: Faces Zirpoli Suit Over Telemarketing Practices
--------------------------------------------------------------
FALLON ZIRPOLI, individually and on behalf of all others similarly
situated, v. CORAL SPRINGS FITNESS PARTNERS, INC. d/b/a
ORANGETHEORY CORAL SPRINGS SOUTH, Case No. CACE-21-021279 (Fla.
Cir., Broward Cty., Dec. 1, 2021) contends that the Defendant
promotes and markets its merchandise, in part, by placing
unsolicited telemarketing to wireless phone users, in violation of
the Telephone Consumer Protection Act.
The Defendant is a franchisee of a nation-wide group fitness center
known as Orangetheory Fitness.
Allegedly, the Defendant's telephonic sales calls have caused the
Plaintiff and the Class members harm, including violations of their
statutory rights, statutory damages, annoyance, nuisance, and
invasion of their privacy, the suit says.
Through this action, the Plaintiff seeks an injunction and
statutory damages on behalf of herself and the Class members, as
defined below, and any other available legal or equitable remedies
resulting from the unlawful actions of Defendant.[BN]
The Plaintiff is represented by:
Andrew J. Shamis, Esq.
Garrett Berg, Esq.
SHAMIS & GENTILE P.A.
14 NE 1st Ave., Suite 705
Miami, Florida 33132
Telephone: (305) 479-2299
E-mail: ashamis@shamisgentile.com
gberg@shamisgentile.com
- and -
Scott Edelsberg, Esq.
EDELSBERGLAW P.A.
20900 NE 30th Ave., Suite 417
Aventura, FL 33180
Telephone: (305) 975-3320
E-mail: scott@edelsberglaw.com
CREDIT SERVICE: Wusterbarth Suit Remanded to Brown County Cir. Ct.
------------------------------------------------------------------
In the case, AMBER WUSTERBARTH, individually and on behalf of all
others similarly situated, Plaintiff v. CREDIT SERVICE COMPANY,
Defendant, Case No. 21-C-1071 (E.D. Wis.), Judge William G.
Griesbach of the U.S. District Court for the Eastern District of
Wisconsin granted the Plaintiffs motion to remand the matter to
state court.
Introduction
In the putative class action, Plaintiff Wusterbarth alleges that
Defendant Credit Service violated the Fair Debt Collection
Practices Act (FDCPA), 15 U.S.C. Section 1692 et seq. The Defendant
removed the action from Brown County Circuit Court on Sept. 14,
2021. The Plaintiff moves to remand the matter to state court,
pursuant to 28 U.S.C. Section 1447(c), on the grounds that the
Defendant's removal was untimely and that she lacks Article III
standing to pursue her claims in federal court.
Background
On April 16, 2021, the Plaintiff, individually and on behalf of all
others similarly situated, initiated the putative class action in
state court, alleging that the Defendant violated the FDCPA. The
Plaintiff filed an amended complaint on Aug. 25, 2021. In the
amended complaint, she alleged that the Defendant, a debt
collector, sent her a letter, on Dec. 7, 2020, to collect a debt.
The letter states that "this account has been placed with us for
collection" and advises that "this communication is from a debt
collector and is an attempt to collect a debt. Any information
obtained will be used for that purpose." The letter instructed the
Plaintiff that "any written correspondence, including an instrument
tendered as full satisfaction of a debt, is to be sent to Credit
Service Company, Inc., PO Box 2247, Colorado Springs, CO 80901."
The Plaintiff claims that the letter violates the FDCPA. In
particular, she alleges that, while the letter identifies the
original creditor, it does not name the current creditor to whom
the debt is owed or inform her who placed the debt for collection
in violation of 15 U.S.C. Section 1692g(a)(2). She also asserts
that the letter fails to provide a clear and unambiguous statement
of the amount of the debt in violation of 15 U.S.C. Section
1692g(a)(1).
Analysis
As an initial matter, the Plaintiff challenges the timeliness of
the removal, asserting that the Defendant was properly served with
the summons and complaint on April 20, 2021, and therefore the
30-day period for removal expired on May 20, 2021. She contends
that her original complaint provided the facts necessary to support
a removal petition by asserting claims under the FDCPA. The
Plaintiff also asserts that the Defendant waived its right to
remove by joining issue on the merits for several months in state
court.
Even though the original complaint contained alleged violations of
the FDCPA, the Defendant argues that the original complaint failed
to allege facts sufficient to establish standing in any court. It
asserts that the amended complaint contained "new alleged injuries
in fact, which were not included in the original complaint.
Judge Griesbach finds that the Defendant removed the action to
state court within 30 days of the Plaintiff filing the amended
complaint and asserted that the Plaintiff suffered an injury in
fact based on the more detailed allegations of injury contained in
the complaint. In short, the Defendant's removal was timely.
The Plaintiff argues that, even considering the allegations in the
amended complaint, the Court does not have subject matter
jurisdiction in the case because she lacks Article III standing.
She asserts that she does not allege a concrete injury sufficient
to confer Article III standing.
The Defendant argues that, "taken together, these allegations
assert that the Plaintiff was not only confused and unsure about
the legitimacy of the debt or what effect payment would have, but
that she actually did not pay the debt for those reasons, as
interest would not have continued to accrue if the debt had been
paid."
Judge Griesbach holds that because the amended complaint does not
contain allegations of a concrete harm to support standing, the
Court lacks subject matter jurisdiction over the Plaintiff's
claims. Therefore, the case must be remanded to state court.
The Plaintiff asserts that the Court should award her the
attorney's fees incurred for bringing the motion. Section 1447
provides that "an order remanding the case may require payment of
just costs and any actual expenses, including attorney fees,
incurred as a result of the removal." The Plaintiff asserts that an
award of attorney's fees is appropriate because none of the
injuries alleged in the amended complaint give rise to Article III
standing.
Judge Griesbach finds that, given the rapidly evolving litigation
over what constitutes a concrete injury in fact in the context of
FDCPA claims in the circuit, the Defendant had an objectively
reasonable basis to remove the case. Despite the Plaintiff's
assertions to the contrary, there is no indication that the
Defendant acted in bad faith in removing the case. This is true
even though the Defendant asserted the Plaintiff's lack of standing
as an affirmative defense in its answer to the amended complaint.
Given the uncertainty of the law on the issue, the Defendant's
attempt to remove the case based on the Plaintiff's "beefed-up"
allegations concerning standing does not mean their affirmative
defense was in bad faith. Therefore, Judge Griesbach declines to
award fees and costs in the case.
Conclusion
For these reasons, Judge Griesbach granted the Plaintiff's motion
for remand. The matter is remanded to Brown County Circuit Court.
The Plaintiff's request for fees is denied.
A full-text copy of the Court's Nov. 23, 2021 Decision & Order is
available at https://tinyurl.com/2p8bjr6c from Leagle.com.
CRODA INC: Court Tosses All Claims in Baker Suit Without Prejudice
------------------------------------------------------------------
In the case, CATHERINE BAKER, individually and on behalf of all
others similarly situated, Plaintiff v. CRODA INC., Defendant, Case
No. 1:20-cv-01108-SB (D. Del.), Judge Stephanos Bibas of the U.S.
District Court for the District of Delaware dismisses all claims
without prejudice.
Background
Croda owns a Delaware chemical plant that uses ethylene oxide, a
known carcinogen. In 2018, Croda's plant leaked thousands of pounds
of ethylene oxide into the surrounding neighborhood. Although Croda
reacted quickly, residents worried that they had inhaled the
chemical and now fear they will get cancer.
One resident, Baker, brought a class action on behalf of her
neighbors, alleging strict liability, public and private nuisance,
negligence, willful and wanton conduct, and medical monitoring. She
admits that no neighbor "has been currently diagnosed with cancer
or illness of the kind caused by ethylene oxide." But she says they
all suffer "an increased risk of illness."
Now Croda moves to dismiss these claims. It says that the mere risk
of disease alone is not a compensable tort injury.
Discussion
I. Delaware Law Applies
Before addressing the merits, Judge Bibas decides whether Delaware
or New Jersey law applies. New Jersey law recognizes independent
claims for medical monitoring where Delaware law may not. And New
Jersey might have a different view of claims for increased risk of
disease.
Since he sits in Delaware, Judge Bibas will rely on the Court's
choice-of-law rules to decide the issue. In doing so, he asks which
state has the "most significant relationship" to the tort. In the
case, that is Delaware. A corporation incorporated in Delaware and
operating a chemical plant in Delaware leaked chemicals into a
Delaware neighborhood.
Baker's objections do not convince Judge Bibas. Because Croda's
headquarters are in New Jersey, she says, "it is entirely
reasonable to infer that Croda made the decisions" about using
ethylene oxide "from New Jersey." Even so, Delaware has a far
closer link to these claims. Baker tries to delay this ruling by
asking for discovery. She notes that in complex cases, courts
sometimes delay choosing the applicable law until the record is
more developed. This is not such a complex case. So Judge Bibas
will not delay ruling that Delaware law applies.
II. Increased Risk is Not an Injury
On to the merits, at this stage, Judge Bibas takes all of Baker's
factual assertions as true and asks if they state a plausible
claim. He says, all tort claims require an injury. But in Delaware,
Croda argues, an increased risk of illness, without more, does not
suffice. Baker counters that recovery for increased risk is allowed
by several states that, like Delaware, rely on the Second
Restatement of Torts.
Judge Bibas holds that this is not enough. He says, most courts
reject increased-risk claims. Understandably so. Tens of millions
of individuals may have suffered exposure to substances that might
never result in harm. Allowing lawsuits for any risk of illness
would open the floodgates to "limitless and endless" litigation.
Without a contrary directive from the Delaware Supreme Court, Judge
Bibas will not open those floodgates in the case.
So the class cannot recover damages for the risk of diseases that
they do not yet have. And because each tort requires an injury,
none of Baker's torts survives this flaw.
Conclusion
Judge Bibas opines that the class cannot show it has suffered any
injury under Delaware law, so he dismisses all its claims without
prejudice. Baker may amend to show that the class has suffered
physical injury.
But Judge Bibas will not certify this question to the Delaware
Supreme Court. Delaware law already points to my holding today, so
certification would not be efficient.
A full-text copy of the Court's Nov. 23, 2021 Memorandum Opinion is
available at https://tinyurl.com/2p83z2sv from Leagle.com.
Kimberly Ann Evans-- kevans@gelaw.com -- Kyle John McGee --
kmcgee@gelaw.com -- Kelly L. Tucker -- ktucker@gelaw.com -- GRANT &
EISENHOFER, P.A., in Wilmington, Delaware; Frank M. Petosa, Marcio
W. Valladares, Michael Ram, Rene F. Rocha, T. Michael Morgan,
MORGAN & MORGAN, in Fort Lauderdale, Florida, Counsel for
Plaintiff.
Kenneth J. Nachbar -- knachbar@morrisnichols.com -- Miranda N.
Gilbert -- mgilbert@morrisnichols.com -- MORRIS NICHOLS ARSHT &
TUNNELL LLP, in Wilmington, Delaware; Zi-Xiang Shen, DELAWARE
DEPARTMENT OF JUSTICE, Wilmington, Delaware; Athena D. Dalton,
Stephen A. Swedlow, QUINN EMANUEL URQUHART & SULLIVAN, LLP, in
Chicago, Illinois, Counsel for Defendant.
DELIVERY.COM LLC: Contreras Files ADA Suit in S.D. New York
-----------------------------------------------------------
A class action lawsuit has been filed against Delivery.com, LLC.
The case is styled as Yensy Contreras, individually and on behalf
of all others similarly situated v. Delivery.com, LLC, Case No.
1:21-cv-10200 (S.D.N.Y., Dec. 1, 2021).
The lawsuit is brought over alleged violation of the Americans with
Disabilities Act.
Delivery.com LLC -- https://www.delivery.com/ -- is an American
online platform and suite of mobile apps that enables users to
order from local restaurants and stores for on-demand
delivery.[BN]
The Plaintiff is represented by:
Jarrett Scott Charo, Esq.
MIZRAHI KROUB LLP
200 Vesey Street, Ste. 24th Floor
New York, NY 10281
Phone: (212) 595-6200
Email: jcharo@mizrahikroub.com
DESKTOP METAL: Campanella Files Suit Over ExOne Merger
------------------------------------------------------
Pietro Campanella, individually and on behalf of all others
similarly situated, Plaintiff, v. S. Kent Rockwell, John Hartner,
John Irvin, Gregory F. Pashke, William F. Strome, Roger W.
Thiltgen, Bonnie K. Wachtel, Paul A. Camuti, Loretta L. Benec and
Desktop Metal Inc., Defendants, Case No. 2021-1013 (Del. Ch.,
November 22, 2022), seeks to recover damages resulting from the
Defendants' failure to comply with their fiduciary duties arising
from the merger between Desktop Metal, Inc. and The ExOne Company.
On August 11, 2021, Desktop Metal and ExOne announced an agreement
and plan of merger pursuant to which ExOne would become a wholly
owned subsidiary of Desktop Metal. Pursuant to the terms of the
merger agreement, ExOne's common stock shareholders became entitled
to receive $8.50 in cash and 2.1416 shares of Desktop Metal Class A
common stock which was calculated based on the "average stock
price" of Desktop Metal Class A common stock over a twenty-day
period.
On October 8, 2021, ExOne solicited shareholders to vote in favor
of the merger at a special meeting of shareholders that would be
held on November 9, 2021. On the evening of November 8, 2021,
Desktop Metal disclosed with the SEC that it had engaged a third
party to conduct an independent internal investigation as a result
of a whistleblower complaint relating to manufacturing and product
compliance practices and procedures with respect to a subset of its
photopolymer equipment and materials at Desktop Metal subsidiary
EnvisionTec US LLC's facility in Dearborn, Michigan and had taken
initial actions, including implementing changes in the management
of and procedures associated with manufacturing the applicable
products.
Campanella, owns ExOne common stock prior to the merger. He claims
that the whistleblower investigation was not disclosed before the
vast majority of ExOne's voting shareholders had already submitted
their votes by proxy. He claims that the shareholders were not
fully-informed given the incredibly short time between the
disclosure of the Whistleblower Investigation and the special
meeting. ExOne's shareholders who had submitted their votes by
proxy did not have adequate time to rescind or change their vote
before the special meeting occurred.
Desktop Metal designs and markets 3D printing systems. ExOne's
business primarily consisted of manufacturing and selling 3D
printing machines and printing products to specification for its
customers for both direct and indirect applications. ExOne offered
its pre-production collaboration and print products for customers
through its network of ExOne Adoption Centers and supplied the
associated materials, including consumables and replacements parts,
and other services, including training and technical support,
necessary for purchasers of its 3D printing machines to print
products. [BN]
Plaintiff is represented by:
Ryan M. Ernst, Esq.
BIELLI & KLAUDER, LLC.
1204 N. King St.
Wilmington, DE 19801
Tel: (302) 803-4600
Email: rernst@bk-legal.com
- and -
Guri Ademi, Esq.
Jesse Fruchter, Esq.
ADEMI LLP
3620 E Layton Ave
Cudahy, WI 53110
Tel: (414) 482−8000
Fax: (414) 482−8001
Email: gademi@ademilaw.com
jfruchter@ademilaw.com
EDGEWELL PERSONAL: Sunscreens Contain Benzene, Chabla Suit Alleges
------------------------------------------------------------------
LUIS CHABLA and JESSICA BARTON, individually and on behalf of all
others similarly situated, Plaintiffs v. EDGEWELL PERSONAL CARE
BRANDS, LLC, EDGEWELL PERSONAL CARE, LLC, and SUN PHARMACEUTICALS,
LLC, Defendants, Case No. 3:21-cv-01579-SRU (D. Conn., November 29,
2021) is a class action against the Defendants for violation of New
York General Business Law, breach of express warranty, breach of
implied warranty of merchantability, fraudulent concealment,
medical monitoring, and unjust enrichment.
According to the complaint, the Defendants are engaged in false,
deceptive, and misleading advertising, labeling, and marketing of
Banana Boat sunscreen line of products. The Defendants failed to
disclose that the products contain benzene, a known human
carcinogen. As a result of the Defendants' alleged
misrepresentations, the Plaintiffs and Class members were injured
in fact and lost money. Had they known the truth, they would not
have purchased the products.
Edgewell Personal Care Brands, LLC is a manufacturer of personal
care products, with its headquarters in Shelton, Connecticut.
Edgewell Personal Care, LLC is a manufacturer of personal care
products, with its headquarters in Shelton, Connecticut.
Sun Pharmaceuticals, LLC is a pharmaceutical company, with its
headquarters in Shelton, Connecticut. [BN]
The Plaintiffs are represented by:
Joseph P. Guglielmo, Esq.
SCOTT+SCOTT ATTORNEYS AT LAW LLP
The Helmsley Building
230 Park Avenue, 17th Floor
New York, NY 10169
Telephone: (212) 223-6444
Facsimile: (212) 223-6334
E-mail: jguglielmo@scott-scott.com
- and –
Jason P. Sultzer, Esq.
Joseph Lipari, Esq.
Daniel Markowitz, Esq.
THE SULTZER LAW GROUP P.C.
270 Madison Avenue, Suite 1800
New York, NY 10016
Telephone: (845) 483-7100
Facsimile: (888) 749-7747
E-mail: sultzerj@thesultzerlawgroup.com
liparij@thesultzerlawgroup.com
markowitzd@thesultzerlawgroup.com
- and –
David C. Magagna Jr., Esq.
Charles E. Schaffer, Esq.
LEVIN SEDRAN & BERMAN
510 Walnut Street, Suite 500
Philadelphia, PA 19106
Telephone: (215) 592-1500
E-mail: dmagagna@lfsblaw.com
cschaffer@lfsblaw.com
EDGEWELL PERSONAL: Zayas Files Suit in D. Connecticut
-----------------------------------------------------
A class action lawsuit has been filed against Edgewell Personal
Care Company, et al. The case is styled as Lisa Zayas, Catalina
Ocampo, Deborah Jean, Sebe Algofi, individually and on behalf of
all others similarly situated v. Edgewell Personal Care Company,
Edgewell Personal Care Brands, LLC, Edgewell Personal Care, LLC,
Case No. 3:21-cv-01596 (D. Conn., Dec. 1, 2021).
The nature of suit is stated as Other Fraud.
The Edgewell Personal Care Company -- https://edgewell.com/ -- is
an American consumer products corporation headquartered in Shelton,
Connecticut.[BN]
The Plaintiffs are represented by:
Joseph P. Guglielmo, Esq.
SCOTT + SCOTT, Attorneys at Law, LLP
The Helmsley Building
230 Park Avenue, 17th Floor
New York, NY 10169
Phone: (212) 223-6444
Fax: (212) 223-6334
Email: jguglielmo@scott-scott.com
EL AGUASCALIENTES: Underpays Restaurant Laborers, Banuelos Claims
-----------------------------------------------------------------
MANUEL BANUELOS, on his own behalf and on behalf of all others
similarly situated, Plaintiff v. EL AGUASCALIENTES, LLC, GUERRERO
CORRAL, INC., JESUS RAMIREZ and DANIEL RAMIREZ, Defendants, Case
No. 1:21-cv-03074-MEH (D. Colo., November 16, 2021) is a class and
collective action complaint brought against the Defendants for its
alleged refusal to pay overtime premium in violation of the Fair
Labor Standards Act.
The Plaintiff was employed by the Defendants between approximately
March 2019 and approximately October 1, 2021 as a restaurant
laborer in the Defendants' El Aguascalientes restaurant in Wheat
Ridge and El Taco Loco restaurant in Brighton.
According to the complaint, the Plaintiff and all other similarly
situated restaurant laborers regularly worked more than 40 hours
each workweek, and sometimes more than 12 hours per day. However,
the Defendants denied them their lawfully earned overtime
compensation at the rate of one and one-half times their regular
rates of pay for all hours worked in excess of 40 per workweek. In
addition, the Defendants failed to provide them with compensated
10-minute break periods for each 4-hour work period.
The Corporate Defendants operate as restaurants co-owned by the
Individual Defendants. [BN]
The Plaintiff is represented by:
Brandt Milstein, Esq.
MILSTEIN TURNER, PLLC
2400 Broadway, Suite B
Boulder, CO 80304
Tel: (303) 440-8780
E-mail: brandt@milsteinturner.com
FASTLY INC: Court Dismisses Consolidated Securities Class Suit
--------------------------------------------------------------
In the case, In re FASTLY, INC. SECURITIES LITIGATION, Case No.
20-cv-06024-PJH (N.D. Cal.), Judge Phyllis J. Hamilton of the U.S.
District Court for the Northern District of California granted the
Defendants' motion to dismiss the Lead Plaintiff's consolidated
complaint.
Background
The case is a putative class action involving allegations of
securities fraud. Defendant Fastly is an "edge" cloud platform that
enables companies to deliver digital content to users from Fastly's
servers rather than their own.
Traditionally, websites and digital applications rely on one
centralized server to process data for users all over the world,
resulting in lag times and poor user experiences. Fastly solves
this problem by locating data centers close to end users (the
"edge"), which increases internet speed, security, and reliability
of digital content for a better user experience. Defendant Joshua
Bixby is Fastly's CEO. Defendant Adriel Lares was Fastly's CFO
during the putative class period.
Plaintiff Andrew Zenoff was appointed the Lead Plaintiff by the
Court on Feb. 10, 2021, replacing the originally named Plaintiff,
Marcos Betancourt. He earlier presented evidence that he lost
$105,848 due to the Defendants' alleged misconduct.
The action was initiated by Plaintiff Betancourt on Aug. 27, 2020.
Thereafter, another case was related to this one: Rami Habib v.
Fastly, Inc., et al. (4:20-cv-06454-JST). The cases were
consolidated by the court pursuant to stipulation. Following
briefing for appointment of lead plaintiff in the consolidated
action, the Court appointed Zenoff as the Lead Plaintiff and
Robbins Geller Rudman & Down LLP as the lead counsel.
On April 12, 2021, the Lead Plaintiff filed the complaint now at
issue, seeking to represent individuals who acquired Fastly stock
between May 6 and Oct. 14, 2020. The complaint alleges that Fastly,
Bixby, and Lares (together, "defendants"), violated Section 10(b)
of the Securities Exchange Act of 1934 (15 U.S.C. Sections 78j(b))
and SEC Rule 10b-5 (17 CFR Section 240.10b-5). Specifically, the
Plaintiff claims that various statements by the Defendants in May
2020 about Fastly's revenue growth, enterprise customers, and
demand for its platform were misleading because the company did not
disclose that TikTok was a customer (the "May Statements"). The
Plaintiff also claims that after Fastly disclosed TikTok as a
customer in August 2020, the Defendants continued to mislead
investors about the company's ability to backfill lost TikTok
traffic (the "August Statements"). The complaint asserts claims
under Section 20(a) against Bixby and Lares as alleged "control
persons" of Fastly.
The Defendants now ask the Court to dismiss the consolidated
complaint in its entirety and with prejudice. They additionally
request judicial notice of several documents.
Discussion
I. Request for Judicial Notice
In connection with their motion to dismiss, the Defendants request
judicial notice of Fastly's filings with the Securities and
Exchange Commission ("SEC"), transcripts of earnings calls and
investor presentations, an analyst report, published articles, and
information on a U.S. government website.
A. Unopposed Exhibits
The Plaintiff does not object to the court taking judicial notice
of Exhibits 1 and 2, which are public articles. These two documents
are referenced in the Defendants' recounting of the facts as
context for the Trump Administrations' public statements regarding
trade with China.
a. Exhibit 1: Zeke Miller, Powerful, Obscure Law Is Basis For
Trump `Order' On Trade, Associated Press, August 25, 2019,
https://apnews.com/article/asia-pacific-donald-trump-ap-top-news-france-international-news-be18b8619cde4658a418dda4f416968a
(last visited 11/23/2021).
b. Exhibit 2: Ana Rappeport and Ana Swanson, White House
Weighs Blocking Chinese Companies From U.S. Exchanges, The New York
Times, Sept. 27, 2019,
https://www.nytimes.com/2019/09/27/us/politics/trump-china-stock-exchange.html
(last visited 11/23/2021).
Judge Hamilton grants the Defendants' unopposed request for notice
of these documents. They are considered for the context of their
dates and the timing of the statements by the U.S. government, not
necessarily for the truth of their contents.
B. Incorporation by Reference
The Defendants request the court to consider Exhibits 3-8 and 10-23
incorporated in the complaint by reference. The Plaintiff does not
object to incorporation by reference of Exhibits 3-8 and 10-23 for
the limited purpose of identifying the contents of those documents;
however, he urges the Court to reject the Defendants' efforts to
have the court resolve issues of fact based these documents as it
would be improper at this pleading stage.
The Defendant counters that the court may consider the documents
incorporated by reference in order to resolve factual disputes and
the Plaintiff fails to identify any well-pled allegations that are
improperly disputed. The Defendants offer, "the incorporation by
reference doctrine is designed to prevent the Plaintiffs from
highlighting only the portions of certain documents that support
their claims, while omitting portions of those documents that
weaken their claims."
Judge Hamilton holds that the Defendants have the better argument.
The following exhibits are those that the Court considers
incorporated by reference:
a. Exhibit 3: Tony Romm and Drew Harwell, Marco Rubio Seeks
U.S. Government Probe Of TikTok Over Chinese Censorship Concerns,
The Washington Post, October 9, 2019. This article is referenced in
the complaint at paragraph 18.
b. Exhibit 4: Geoffrey Gertz, Is TikTok A Threat To National
Security?, The Washington Post, Nov. 11, 2019. This article is
referenced in the complaint at paragraph 21.
c. Exhibit 5: copy of excerpts of Fastly's Annual Report for
the year ended Dec. 31, 2019, filed with the Securities and
Exchange Commission (SEC) on Form 10-K on March 4, 2020. This Form
10-K is referenced in the complaint at paragraphs 12, 114, 136, and
151.
d. Exhibit 6: press release and shareholder letter attached to
and filed with the SEC on Form 8-K on May 6, 2020. This Form 8-K is
referenced in the complaint at paragraphs 52-56.
e. Exhibit 7: transcript of Fastly's earnings call for the
first fiscal quarter of 2020 on May 6, 2020. This transcript is
referenced in the complaint at paragraphs 57-61.
f. Exhibit 8: copy of excerpts of Fastly's Quarterly Report
for the quarter ended March 31, 2020, filed with the SEC on Form
10-Q on May 8, 2020. This Form 10-Q is referenced in the complaint
at paragraphs 33-34, 63-69, 124.
g. Exhibit 10: Timothy Bella, Pompeo Says U.S. 'Certainly
Looking At' Banning TikTok And Other Chinese Apps, The Washington
Post, July 7, 2020. This article is referenced in the complaint at
paragraph 27.
h. Exhibit 11: Naeem Aslam, Trump Says He's Considering a Ban
on TikTok in the U.S., Yahoo! Finance, July 8, 2020. This article
is referenced in the complaint at paragraph 29.
i. Exhibit 12: press release and shareholder letter attached
to and filed with the SEC on Form 8-K on Aug. 5, 2020. This Form
8-K is referenced in the complaint at paragraphs 79, 116.
j. Exhibit 13: transcript of Fastly's earnings call for the
second fiscal quarter of 2020 on Aug. 5, 2020. This transcript is
referenced in the complaint at paragraphs 5, 35, 38, 73-79, 117,
and 136.
k. Exhibit 14: Tali Arbel, Trump Bans Dealings With Chinese
Owners Of TikTok, Wechat, Associated Press, Aug. 6, 2020. This
article is referenced in the complaint paragraph 29.
l. Exhibit 15: Exec. Order No. 13,942, 85 FR 48637 (2020).
This Executive Order, signed Aug. 6, 2020, and titled Addressing
the Treat Posed by TikTok, and Taking Additional Steps to Address
the National Emergency With Respect to the Information and
Communications Technology and Services Supply Chain is referenced
in the complaint at paragraphs 29, 36, and 138.
m. Exhibit 16: excerpts of Fastly's Quarterly Report for the
period ended June 30, 2020, filed with the SEC on Form 10-Q, on
Aug. 7, 2020. This Form 10-Q is referenced in the complaint at
paragraphs 83-89, 114-15.
n. Exhibit 17: transcript of Fastly's presentation at the
Oppenheimer 23rd Annual Technology, Internet & Communications
Conference on Aug. 11, 2020. This transcript is referenced in the
complaint at paragraphs 91-92.
p. Exhibit 18: transcript of Fastly's presentation at the
KeyBanc Capital Markets Future Of Technology Series on Aug. 12,
2020. This transcript is referenced in the complaint at paragraphs
93-95.
q. Exhibit 19: press release attached to and filed with the
SEC on Form 8-K on Oct. 14, 2020, titled Fastly Provides
Preliminary Third Quarter Revenue Results. This press release is
referenced in complaint at paragraphs 41, 97-98, 140.
r. Exhibit 20: copy of excerpts from Fastly's Registration
Statement, on Form S-3, filed with the SEC on Oct. 15, 2020. This
Form S-3 is referenced in the complaint at paragraph 106.
s. Exhibit 21: report published by Piper Sandler on Oct. 22,
2020, titled Downgrading To UW: Challenging Dynamics A Tough Byte
To Swallow. This report is referenced in complaint at paragraphs
104-05, 114, and 141.
t. Exhibit 22: press release and shareholder letter attached
to and filed with the SEC on Form 8-K on Oct. 28, 2020. This Form
8-K is referenced in the complaint at paragraphs 107-08. 25.
u. Exhibit 23: Dan Rayburn, An Update On TikTok's DIY CDN
Strategy And The Impact On Third-Party CDNs, Seeking Alpha, Feb.
10, 2021. This article is referenced in the complaint at paragraphs
38, 113.
Judge Hamilton grants the request for incorporation by reference
given that the Plaintiff does not object, the documents were
referenced in the complaint, and he does not dispute their
authenticity.
C. Opposed Exhibits
The Defendants additionally request that the Court takes judicial
notice of Exhibits 9, 24, 25, and 26 because they will aid the
Court in ruling on the motion. They request judicial notice of SEC
reports that are not referenced in the FAC.
a. Exhibit 9: Copy of excerpts of a report issued by the
Committee on Foreign Investment in the United States to Congress in
July 2020, titled Committee on Foreign Investment in the United
States Annual Report to Congress for Report Period: CY 2019.
b. Exhibit 24: Press release and shareholder letter attached
to Fastly's Form 8-K filed with the SEC on Feb. 17, 2021.
c. Exhibit 25 is a compilation of copies of all Form 4
Statements of Changes in Beneficial Ownership for Joshua Bixby,
filed with the SEC between May 6, 2020 and Oct. 14, 2020.
d. Exhibit 26 is a compilation of copies of all Form 4
Statements of Changes in Beneficial Ownership for Adriel Lares,
filed with the SEC between May 6, 2020 and Oct. 14, 2020.
Judge Hamilton grants the Defendants' request to take judicial
notice of Exhibit 9, excerpts from the CFIUS report, because it is
not subject to reasonable dispute. She grants the Defendants'
request to take judicial notice of Exhibit 24 because the SEC-filed
document is not subject to reasonable dispute, and it is relevant
to establish Fastly's reported revenues as well as consideration of
whether defendants misled investors. Lastly, Judge Hamilton grants
the Defendants' request to take judicial notice of Exhibits 25 and
26, noting that the Defendants' sales pursuant to 10b5-1 plans are
not determinative on the issue of whether Bixby and Lares' sales
were improper insider trades.
II. Motion to Dismiss
The Plaintiff alleges two causes of action: (1) violations of
Section 10(b) of the Exchange Act and SEC Rule 10b-5 promulgated
thereunder (against all the Defendants), and (2) violations of
Section 20(a) of the Exchange Act (against the individual
Defendants).
To plead a claim under section 10(b) and Rule 10b-5, Plaintiffs
must allege: (1) a material misrepresentation or omission; (2)
scienter; (3) a connection between the misrepresentation or
omission and the purchase or sale of a security; (4) reliance; (5)
economic loss; and (6) loss causation."
The Defendants do not argue that the Plaintiff failed to allege the
following four elements: (1) the connection between the
misrepresentations or omissions and the purchase or sale of a
security, (2) reliance, (3) economic loss, or (4) loss causation.
Judge Hamilton therefore does not address these elements. The
Defendants contend that the Plaintiff failed to allege (1) material
misrepresentations or omissions and (2) scienter.
The parties initially discuss the adequacy of the Plaintiff's
pleading from a visual perspective -- whether the Plaintiff's
reproduction of the Defendants' statements and use of bold and
italic font reflects the challenged portions of the statements to
the reader.
Judge Hamilton holds that the Defendants' points are well taken.
She says, the Plaintiff's complaint relies heavily on bold and
italic font without sufficient explanation of the meaning of such
emphasis. It is difficult to understand which portions of the
Defendants' statements the Plaintiff challenges as a result,
especially where at least some of the emphasized text is not
contested as false, such as "we generated $63 million in revenue."
This practice diminishes the particularity of the Plaintiff's
pleading, but this need not serve as the basis for dismissal of the
complaint. The complaint will be dismissed on the merits.
1. Material misrepresentations or omissions
Judge Hamilton finds that the Plaintiff's claim relies on the
departure of TikTok from the Fastly CDN and TikTok's potential ban
from the U.S. as facts contrasting the "good shape" suggested by
defendants. But such statements, she says, are different than those
found misleading in Quality Systems, 865 F.3d at 1143.
Compared to the knowingly false statements at issue in that case,
the Plaintiff does not establish that the Defendants here knew that
TikTok was not in "good shape" at the time of those statements.
Even in context, the Defendants' statements were not misleading
because unlike Quality Systems, the allegedly concealed facts had
not yet transpired. The statements generally referring to a number
of customers are not actionable because they are vague assessments
that "represent the 'feel good' speak that characterizes
'non-actionable puffing.'" The Plaintiff fails to plead their
falsity.
2. Scienter
To demonstrate scienter, a complaint must allege that the
Defendants made "false or misleading statements either
intentionally or with deliberate recklessness." In addition to the
particularity considered necessary for falsity, "the Supreme Court
has emphasized that courts 'must review all the allegations
holistically' when determining whether scienter has been
sufficiently pled. The relevant inquiry is 'whether all of the
facts alleged, taken collectively, give rise to a strong inference
of scienter, not whether any individual allegation, scrutinized in
isolation, meets that standard.'"
Among other things, Judge Hamilton holds that the facts do not give
rise to an inference of scienter that is at least as compelling as
the inference of an honest mistake. At no point in his pleading
does the Plaintiff establish that the Defendants knew their
representations to investors were false.
At the beginning of the Class Period, Fastly identified and shared
the risks that could cause the company to lose business. These risk
disclosures included that the U.S. government could pass laws
impacting Fastly's substantial revenues from international
customers, especially those in China. The Plaintiff fails to allege
a single fact suggesting either Bixby or Lares believed there was
any real risk President Trump would ban TikTok prior to August.
When the regulatory situation changed in August, Fastly disclosed
TikTok as a significant customer. THe Plaintiff fails to establish
that defendants knew they could not backfill lost TikTok business
as they opined in August. The Defendants subsequently announced
their expectation that Fastly would miss its earlier revenue
projections and withdrew its 2020 guidance, before its third
quarter results were finalized and before it was obligated to so
announce.
As the Defendants offer, "Fastly consistently went to the market
with information as it became aware, and sooner than required." The
Plaintiff's theory of scienter relies on the Defendants'
withholding of key information regarding the risks faced by and
posed by TikTok, but the Plaintiff does not establish that they
ever had that information. Therefore, there are insufficient
allegations to support a finding of scienter.
3. Second Cause of Action - Section 20
Congress established liability in Section 20(a) for "every person
who, directly or indirectly, controls any person liable" for
violations of the securities laws. o establish a prima facie case
under Section 20(a), a plaintiff must prove: (1) "a primary
violation of federal securities law;" and (2) "that the defendant
exercised actual power or control over the primary violator."
Because the Plaintiff has failed to plead a primary securities law
violation, Judge Hamilton holds that the Plaintiff has also failed
to plead a violation of Section 20(a).
Conclusion
For the foregoing reasons, including the Plaintiff's failure to
plead the falsity of defendants' representations or scienter, Judge
Hamilton grants the Defendants' request for judicial notice as
detailed. She granted the Defendants' motion to dismiss the
Plaintiff's amended complaint with leave to amend.
The Plaintiff will have 28 days from the date of the Order to file
a second amended complaint to cure the deficiencies noted in the
Order. No new claims or parties may be added without leave of court
or the agreement of all parties. Upon the filing of any amended
complaint, the Plaintiff must also file a redline clearly
demarcating its changes from the existing complaint.
A full-text copy of the Court's Nov. 23, 2021 Order is available at
https://tinyurl.com/2p84perp from Leagle.com.
FCA US LLC: Tavarez Sues Over Non-Blind Friendly Website
--------------------------------------------------------
Victoriano Tavarez, individually and on behalf of all others
similarly situated, Plaintiff, v. FCA US LLC, Defendant, Case No.
21-cv-09825 (S.D. N.Y., November 23, 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 New York City Human Rights Law.
FCA US LLC designs, engineers, manufactures and sells vehicles
under the Jeep and Chrysler brands. Tavarez is legally blind and
claims that Defendant's website, www.jeep.com, cannot be accessed
by the visually-impaired. [BN]
Plaintiff is represented by:
Joseph H. Mizrahi, Esq.
William J. Downes, Esq.
200 Vesey Street, 24th Floor
New York, NY 10281
Telephone: (212) 595-6200
Fax: (212) 595-9700
Email: wdownes@mizrahikroub.com
FIRSTENERGY CORP: Court Vacates Class Cert. Order in Smith Suit
---------------------------------------------------------------
In the cases, JACOB SMITH, Plaintiff v. FIRSTENERGY CORP. AND
FIRSTENERGY SERVICE CO., Defendants. BRIAN HUDOCK AND CAMEO
COUNTERTOPS, INC., Plaintiff v. FIRSTENERGY CORP., et al.,
Defendants, JAMES BULDAS, Plaintiff v. FIRSTENERGY CORP., et al.,
Defendants, Case Nos. 2:20-cv-3755, 2:20-cv-3954, Lead Case No.
2:20-cv-3987 (S.D. Ohio), Judge Edmund A. Sargus, Jr., of the U.S.
District Court for the Southern District of Ohio, Eastern Division,
granted the Defendants' Motions to Reconsider or Vacate the Order
Granting of Class Certification.
Background
In the summer of 2020, former Speaker of the Ohio House of
Representatives Larry Householder and his political associates were
indicted for a $60 million. On March 5, 2021, the Court issued a
Scheduling Order that contained deadlines for the class
certification briefing.
The criminal complaint alleged that in exchange for hefty bribes
from "Company A," Householder and members of his racketeering
enterprise ("Householder Enterprise") worked to pass and uphold
House Bill 6, a near billion-dollar nuclear power plant bailout for
"Company A" and its affiliates. According to the Complaint, it is
widely known that "Company A" is FirstEnergy.
On July 27, 2020, the first of these three consolidated civil cases
was filed in the Court. The Plaintiffs, individual and commercial
ratepayers of FirstEnergy Corp., bring civil claims on behalf of a
proposed class against Defendants, FirstEnergy Corp., FirstEnergy
Service Co., and various individuals in decision-making roles at
either entity. The Plaintiffs allege that as a result of
FirstEnergy's racketeering alongside the Householder Enterprise,
they have been injured by having to pay costs and fees set forth in
HB 6.
In October 2020, the Defendants moved to dismiss these consolidated
cases for failure to state a claim upon which relief could be
granted. After full briefing, the Court denied the request for
dismissal.
The following month, November 2020, the Defendants moved to stay
the action "pending final resolution of the related criminal case
that forms the basis of the Plaintiffs' claims." After full
briefing, the Court denied the request to stay pending resolution
of the criminal action.
On March 5, 2021, the Court issued a Scheduling Order.
On June 28, 2021, the Plaintiffs filed their Motion for Class
Certification.
On Nov. 9, 2021, the Court granted as unopposed the Motion for
Class Certification.
On Nov. 12, 2021, the Defendants filed their Motions to Reconsider
or Vacate the Order Granting of Class Certification. The Plaintiffs
filed a memorandum in opposition and the Defendants filed a
consolidated reply.
Discussion
The Defendants request reconsideration of the Court's granting as
unopposed the Plaintiffs' Motion for Class Certification. They
argue:
a. The FirstEnergy Defendants respectfully ask the Court to
withdraw or vacate its order granting the Plaintiffs' motion for
class certification because the Court issued it before Defendants'
response to the motion was due.
b. Under the Scheduling Order, Defendants' response is due 30
days after the transcripts from all depositions of the named
Plaintiffs and the Plaintiffs' experts are available. Those
depositions have not yet occurred; accordingly, the Defendants'
deadline to respond has not yet passed.
c. The Court was therefore mistaken when it understood the
class certification motion to be unopposed. The motion is very much
opposed, and the FirstEnergy Defendants have a right to submit
their written opposition and accompanying materials by the deadline
set forth in the Scheduling Order.
The Plaintiff responds, inter alia, that the parties modified the
Scheduling Order without the Court's permission, even though they
suggested twice that the Defendants should request a conference
with the Court regarding the deadlines. The Plaintiffs conclude
that because the Defendants are in violation of the Court's
Scheduling Order, the Court should deny their request to reconsider
its class certification order.
The Defendants reply that the parties never agreed to any such
modification of the Scheduling Order, and FirstEnergy would never
purport to alter a deadline for a court filing without the Court's
express approval. Rather, the deadline remains the same as it
always was, as set forth in the Scheduling Order: 30 days after the
transcripts from all depositions of the named Plaintiffs and the
Plaintiffs' experts are available.
Judge Sargus, however, disagrees. He opines that the case was filed
nearly a year and a half ago and the Scheduling Order affecting
class certification was issued nine months ago. The parties have
been in violation of the Scheduling Order for nearly six months.
While the Court denied the Defendants' previous motion to stay this
case, the parties' conduct is essentially a de facto stay.
Accordingly, the Defendants do not, as they contend, "have a right
to submit their written opposition." Nevertheless, the Court
endeavors, whenever possible, to decide issues on the merits. Thus,
even though the Defendants are in violation of the Court's order,
Judge Sargus will grant their request for reconsideration, vacate
the decision certifying this case as a class action, and provide
them the opportunity to respond to the motion for class
certification.
Disposition
For the reasons he set forth, Judge Sargus granted the Defendants'
Motions for Reconsideration: (ECF Nos. 81, 82, 83 in Case No.
2:20-cv-3987); (ECF Nos. 84, 85, 86 in Case No. 2:20-cv-3954); and
(ECF Nos. 78, 79, 80 in Case No. 2:20-cv-3755). He vacated the
decision granting class certification (ECF No. 77 in Case No.
2:20-cv-3987); (ECF No. 79 in Case No. 2:20-cv-3954); and (ECF No.
73 in Case No. 2:20-cv-3755).
The Court will issue a scheduling order forthwith.
A full-text copy of the Court's Nov. 19, 2021 Opinion & Order is
available at https://tinyurl.com/9y68tpht from Leagle.com.
FLORIDA INSURANCE: Camunas TCPA Suit Removed to S.D. Florida
------------------------------------------------------------
The case styled ROLANDO CAMUNAS, individually and on behalf of all
others similarly situated v. FLORIDA INSURANCE SERVICES, INC.,
d/b/a SENIOR LIFE SERVICES, was removed from the Circuit Court of
the Nineteenth Judicial Circuit in and for Indian River County,
Florida, to the U.S. District Court for the Southern District of
Florida on November 29, 2021.
The Clerk of Court for the Southern District of Florida assigned
Case No. 0:21-cv-62412 to the proceeding.
The case arises from the Defendant's alleged violation of the
Telephone Consumer Protection Act by placing telemarketing calls to
the Plaintiff's cellular phone number without prior express
consent.
Florida Insurance Services, Inc., doing business as Senior Life
Services, is an insurance agency in Vero Beach, Florida. [BN]
The Defendant is represented by:
Jeffrey A. Backman, Esq.
Roy Taub, Esq.
200 E. Broward Blvd., Suite 1800
Ft. Lauderdale, FL 33301
Telephone: (954) 491-1120
E-mail: jeffrey.backman@gmlaw.com
roy.taub@gmlaw.com
FORWARD AIR CORP: Garcia Sues Over Data Breach
----------------------------------------------
Mario Garcia, on behalf of himself and all others similarly
situated, Plaintiffs, v. Forward Air Corporation, Defendant, Case
No. 21-cv-00180 (E.D. Tenn., November 22, 2021) seeks injunctive
and other equitable relief for violation of California's Consumer
Privacy Act and resulting from the failure to properly secure and
safeguard personal identifiable information and protected health
information that Forward Air acquired from or created for its
employees, including without limitation, names, addresses, dates of
birth, patient identification numbers, Social Security numbers,
driver's license/state ID numbers, passport numbers, credit/debit
card information and financial account information.
Forward Air is a provider of ground transportation and related
logistics services to the North American air freight and expedited
market. On December 15, 2020, Forward Air's computer systems was
breached involving ransomware, allowing hackers unauthorized access
to its computer systems in November and early December 2020,
including unauthorized access to information about more than 40,655
current or former employees including Garcia. [BN]
Plaintiff is represented by:
Micah S. Adkins, Esq.
THE ADKINS FIRM, P.C.
1025 Westhaven Blvd., Suite 220
Franklin, TN 37064
Tel: (615) 370-9659
Fax: (205) 208.9632
Email: MicahAdkins@ItsYourCreditReport.com
- and -
Jean S. Martin, Esq.
Francesca Kester, Esq.
MORGAN & MORGAN COMPLEX LITIGATION GROUP
201 N. Franklin Street, 7th Floor
Tampa, FL 33602
Tel: (813) 559-4908
Email: jeanmartin@forthepeople.com
fkester@forthepeople.com
GBC BUSINESS: Mitchell Sues Over Transmission of Unwanted Robocalls
-------------------------------------------------------------------
STEVE MITCHELL, individually and on behalf of all others similarly
situated, Plaintiff v. GBC BUSINESS GROUP, LLC, Defendant, Case No.
CACE-21-021144 (Fla. Cir. Ct., 17th Jud. Cir., Broward Cty.,
November 29, 2021) is a class action against the Defendant for
violation of the Telephone Consumer Protection Act.
The case arises from the Defendant's practice of transmitting
artificial or prerecorded voice calls to the telephone numbers of
the Plaintiff and Class members in an attempt to promote its
products or services without obtaining prior express written
consent. As a result of the Defendant's alleged misconduct, the
Plaintiff and other consumers suffered actual harm.
GBC Business Group, LLC is a call center outsourcing company,
headquartered in Wilmington, Delaware. [BN]
The Plaintiff is represented by:
Manuel S. Hiraldo, Esq.
401 E. Las Olas Boulevard, Suite 1400
Ft. Lauderdale, FL 33301
Telephone: (954) 400-4713
E-mail: mhiraldo@hiraldolaw.com
GBG SEAN JOHN: Weekes Files ADA Suit in S.D. New York
-----------------------------------------------------
A class action lawsuit has been filed against GBG Sean John LLC.
The case is styled as Robert Weekes, individually, and on behalf of
all others similarly situated v. GBG Sean John LLC, Case No.
1:21-cv-10223 (S.D.N.Y., Dec. 1, 2021).
The lawsuit is brought over alleged violation of the Americans with
Disabilities Act.
GBG Sean John LLC -- https://www.globalbrandsgroup.com/ -- offers
kids men's & women's fashion footwear & accessories brand
management.[BN]
The Plaintiff is represented by:
Edward Y. Kroub, Esq.
MIZRAHI KROUB LLP
200 Vesey Street, Ste. 24th Floor
New York, NY 10281
Phone: (212) 595-6200
Email: ekroub@mizrahikroub.com
GEBRUEDER KNAUF: Bennett Sues Over Marketing of Defective Drywall
-----------------------------------------------------------------
ELIZABETH BENNETT, et al., individually and on behalf of all others
similarly situated, Plaintiffs v. GEBRUEDER KNAUF
VERWALTUNGSGESELLSCHAFT, KG; KNAUF INTERNATIONAL GMBH; KNAUF
INSULATION GMBH; KNAUF UK GMBH; KNAUF AMF GMBH & CO., KG; KNAUF DO
BRASIL LTD.; PT KNAUF GYPSUM INDONESIA; KNAUF GIPS KG; KNAUF
PLASTERBOARD TIANJIN CO., LTD.; KNAUF PLASTERBOARD WUHU, CO., LTD;
GUANGDONG KNAUF NEW BUILDING MATERIAL PRODUCTS CO., LTD.,
Defendants, Case No. 1:21-cv-24164-RNS (N.D. Ala., November 30,
2021) is a class action against the Defendants for alleged
negligence, negligence per se, strict liability, breach of express
and/or implied warranty, redhibition, private nuisance, negligent
discharge of a corrosive substance, unjust enrichment, violations
of the Louisiana Products Liability Act and Consumer Protectional
Acts, and equitable and injunctive relief and medical monitoring.
The Plaintiffs bring this suit on behalf of themselves and
similarly situated owners and residents of real property containing
defective Chinese manufactured drywall was designed, manufactured,
imported, exported, distributed, delivered, supplied, inspected,
marketed, sold and/or installed by the Defendants. The Defendants
breached their duties to the Plaintiffs and Class members by
failing to warn about the defective nature of the drywall. The
Defendants, through the exercise of reasonable care, knew or should
have known the nature of the defective drywall and the adverse
effects that it could have on the homes and bodies of the
Plaintiffs and Class members, added the Plaintiff.
Gebrueder Knauf Verwaltungsgesellschaft, KG is an investment
holding company doing business in the U.S.
Knauf International GmbH is a provider of building materials based
in Iphofen, Germany.
Knauf Insulation GmbH is a manufacturer of insulation products,
with a principal place of business in Shelbyville, Indiana.
Knauf UK GmbH is a manufacturer of insulation and building products
based in Sittingbourne, England.
Knauf AMF GmbH & Co., KG is a manufacturer of insulation and
building products based in Grafenau, Germany.
Knauf Do Brasil Ltd. is a manufacturer of insulation and building
products based in Brazil.
PT Knauf Gypsum Indonesia is a manufacturer of insulation and
building products based in Indonesia.
Knauf GIPS KG is a manufacturer of insulation and building products
based in Iphofen, Germany.
Knauf Plasterboard Tianjin Co., Ltd. is a manufacturer of gypsum
drywall based in China.
Knauf Plasterboard Wuhu, Co., Ltd. is a manufacturer of gypsum
drywall based in China.
Guangdong Knauf New Building Material Products Co., Ltd. is a
manufacturer of building products based in China. [BN]
The Plaintiffs are represented by:
James V. Doyle, Jr., Esq.
DOYLE LAW FIRM, PC
2100 Southbridge Pkwy., Suite 650
Birmingham, AL 35209
Telephone: (205) 533-9500
Facsimile: (205) 332-1362
E-mail: jimmy@doylefirm.com
GEBRUEDER KNAUF: Dan Blonsky Files Suit in S.D. Florida
-------------------------------------------------------
A class action lawsuit has been filed against Gebrueder Knauf
Verwaltungsgesellschaft, KG. The case is styled as Dan Blonsky, on
behalf of themselves and all others similarly situated v. Gebrueder
Knauf Verwaltungsgesellschaft, KG, Case No. 1:21-cv-24165-RNS (S.D.
Fla., Nov. 29, 2021).
The nature if suit is stated as Property Damage Product Liability.
Gebrueder Knauf KG -- https://www.knauf.com/en/ -- manufactures
building materials.[BN]
The Plaintiff is represented by:
James V. Doyle, Esq.
DOYLE LAW FIRM, PC
201 Biscayne Blvd., 28th Floor
Miami, FL 33131
Phone: (305) 677-3388
Fax: (844) 638-5812
Email: jim.doyle@doylefirm.com
- and -
James Victor Doyle, Jr., Esq.
James Victor Doyle, Sr., Esq.
DOYLE LAW FIRM, PC
2100 Southbridge Parkway, Suite 650
Birmingham, AL 35209
Phone: (205) 533-9500
Email: jimmy@doylefirm.com
GEBRUEDER KNAUF: Ferrera Files Suit in S.D. Florida
---------------------------------------------------
A class action lawsuit has been filed against Gebrueder Knauf
Verwaltungsgesellschaft, KG. The case is styled as Elvis Ferrera,
on behalf of themselves and all others similarly situated v.
Gebrueder Knauf Verwaltungsgesellschaft, KG, Case No.
1:21-cv-24208-RNS (S.D. Fla., Nov. 29, 2021).
The nature if suit is stated as Property Damage Product Liability.
Gebrueder Knauf KG -- https://www.knauf.com/en/ -- manufactures
building materials.[BN]
The Plaintiff is represented by:
James V. Doyle, Esq.
DOYLE LAW FIRM, PC
201 Biscayne Blvd., 28th Floor
Miami, FL 33131
Phone: (305) 677-3388
Fax: (844) 638-5812
Email: jim.doyle@doylefirm.com
- and -
James Victor Doyle, Jr., Esq.
James Victor Doyle, Sr., Esq.
DOYLE LAW FIRM, PC
2100 Southbridge Parkway, Suite 650
Birmingham, AL 35209
Phone: (205) 533-9500
Email: jimmy@doylefirm.com
GEBRUEDER KNAUF: Guzman Files Suit in S.D. Florida
--------------------------------------------------
A class action lawsuit has been filed against Gebrueder Knauf
Verwaltungsgesellschaft, KG. The case is styled as Santiago Guzman,
on behalf of Skyline Glass, LLC, on behalf of itself and all others
similarly situated v. Gebrueder Knauf Verwaltungsgesellschaft, KG,
Case No. 1:21-cv-24202-RNS (S.D. Fla., Nov. 29, 2021).
The nature if suit is stated as Property Damage Product Liability.
Gebrueder Knauf KG -- https://www.knauf.com/en/ -- manufactures
building materials.[BN]
The Plaintiff is represented by:
James V. Doyle, Esq.
DOYLE LAW FIRM, PC
201 Biscayne Blvd., 28th Floor
Miami, FL 33131
Phone: (305) 677-3388
Fax: (844) 638-5812
Email: jim.doyle@doylefirm.com
- and -
James Victor Doyle, Jr., Esq.
James Victor Doyle, Sr., Esq.
DOYLE LAW FIRM, PC
2100 Southbridge Parkway, Suite 650
Birmingham, AL 35209
Phone: (205) 533-9500
Email: jimmy@doylefirm.com
GEBRUEDER KNAUF: Isidro Calderon Files Suit in S.D. Florida
-----------------------------------------------------------
A class action lawsuit has been filed against Gebrueder Knauf
Verwaltungsgesellschaft, KG. The case is styled as Isidro Calderon,
on behalf of themselves and all others similarly situated v.
Gebrueder Knauf Verwaltungsgesellschaft, KG, Case No.
1:21-cv-24175-RNS (S.D. Fla., Nov. 29, 2021).
The nature if suit is stated as Property Damage Product Liability.
Gebrueder Knauf KG -- https://www.knauf.com/en/ -- manufactures
building materials.[BN]
The Plaintiff is represented by:
James V. Doyle, Esq.
DOYLE LAW FIRM, PC
201 Biscayne Blvd., 28th Floor
Miami, FL 33131
Phone: (305) 677-3388
Fax: (844) 638-5812
Email: jim.doyle@doylefirm.com
- and -
James Victor Doyle, Jr., Esq.
James Victor Doyle, Sr., Esq.
DOYLE LAW FIRM, PC
2100 Southbridge Parkway, Suite 650
Birmingham, AL 35209
Phone: (205) 533-9500
Email: jimmy@doylefirm.com
GEBRUEDER KNAUF: Marfelia Calderon Files Suit in S.D. Florida
-------------------------------------------------------------
A class action lawsuit has been filed against Gebrueder Knauf
Verwaltungsgesellschaft, KG. The case is styled as Marfelia
Calderon, on behalf of themselves and all others similarly situated
v. Gebrueder Knauf Verwaltungsgesellschaft, KG, Case No.
1:21-cv-24216-RNS (S.D. Fla., Nov. 29, 2021).
The nature if suit is stated as Property Damage Product Liability.
Gebrueder Knauf KG -- https://www.knauf.com/en/ -- manufactures
building materials.[BN]
The Plaintiff is represented by:
James V. Doyle, Esq.
DOYLE LAW FIRM, PC
201 Biscayne Blvd., 28th Floor
Miami, FL 33131
Phone: (305) 677-3388
Fax: (844) 638-5812
Email: jim.doyle@doylefirm.com
- and -
James Victor Doyle, Jr., Esq.
James Victor Doyle, Sr., Esq.
DOYLE LAW FIRM, PC
2100 Southbridge Parkway, Suite 650
Birmingham, AL 35209
Phone: (205) 533-9500
Email: jimmy@doylefirm.com
GEBRUEDER KNAUF: Mercedes Gaspard Files Suit in S.D. Florida
------------------------------------------------------------
A class action lawsuit has been filed against Gebrueder Knauf
Verwaltungsgesellschaft, KG. The case is styled as Mercedes
Gaspard, on behalf of themselves and all others similarly situated
v. Gebrueder Knauf Verwaltungsgesellschaft, KG, Case No.
1:21-cv-24184-RNS (S.D. Fla., Nov. 29, 2021).
The nature if suit is stated as Property Damage Product Liability.
Gebrueder Knauf KG -- https://www.knauf.com/en/ -- manufactures
building materials.[BN]
The Plaintiff is represented by:
James V. Doyle, Esq.
DOYLE LAW FIRM, PC
201 Biscayne Blvd., 28th Floor
Miami, FL 33131
Phone: (305) 677-3388
Fax: (844) 638-5812
Email: jim.doyle@doylefirm.com
- and -
James Victor Doyle, Jr., Esq.
James Victor Doyle, Sr., Esq.
DOYLE LAW FIRM, PC
2100 Southbridge Parkway, Suite 650
Birmingham, AL 35209
Phone: (205) 533-9500
Email: jimmy@doylefirm.com
GEBRUEDER KNAUF: Nicole Gaspard Files Suit in S.D. Florida
----------------------------------------------------------
A class action lawsuit has been filed against Gebrueder Knauf
Verwaltungsgesellschaft, KG. The case is styled as Nicole Gaspard,
on behalf of themselves and all others similarly situated v.
Gebrueder Knauf Verwaltungsgesellschaft, KG, Case No.
1:21-cv-24186-RNS (S.D. Fla., Nov. 29, 2021).
The nature if suit is stated as Property Damage Product Liability.
Gebrueder Knauf KG -- https://www.knauf.com/en/ -- manufactures
building materials.[BN]
The Plaintiff is represented by:
James V. Doyle, Esq.
DOYLE LAW FIRM, PC
201 Biscayne Blvd., 28th Floor
Miami, FL 33131
Phone: (305) 677-3388
Fax: (844) 638-5812
Email: jim.doyle@doylefirm.com
- and -
James Victor Doyle, Jr., Esq.
James Victor Doyle, Sr., Esq.
DOYLE LAW FIRM, PC
2100 Southbridge Parkway, Suite 650
Birmingham, AL 35209
Phone: (205) 533-9500
Email: jimmy@doylefirm.com
GENERAL MOTORS: Faces Click Suit Over Automobile's Fuel Pump Defect
-------------------------------------------------------------------
TYLER ALLEN CLICK, TROY BOWEN, BAILEY HENDERSON, ETHAN GALAN, LUIS
G. OCHOA CABRERA, HOMERO MEDINA, MICHAEL GUIDROZ, SCOTT A. HINES,
BRYAN J. TOMLIN, and QUENTIN ALEXANDER, individually and on behalf
of all others similarly situated, Plaintiffs v. GENERAL MOTORS LLC,
Defendant, Case No. 2:21-cv-12761-LJM-APP (S.D. Tex., November 29,
2021) is a class action against the Defendant for fraud by
omission/misrepresentation, unjust enrichment, breach of implied
warranty of merchantability, and violations of the Texas Deceptive
Trade Practices-Consumer Protection Act and the Magnuson-Moss
Warranty Act.
The case arises from the Defendant's manufacturing, distributing,
and marketing of diesel-tank automobiles equipped with
Bosch-supplied CP4 high-pressure fuel injection pumps. The CP4 pump
is not built to withstand the specifications for U.S. diesel fuel
in terms of lubrication or water content, and it struggles to lift
a volume of fuel sufficient to lubricate itself. As a result, the
pump is forced to run dry and destroy itself as air bubbles allow
metal to rub against metal. The defective CP4 pump starts damaging
the vehicle's fuel injection system and engine immediately upon the
vehicle's first use. The Defendant continues to market the Class
vehicles based on superior durability, performance, and fuel
efficiency, despite its knowledge that the Class vehicles are
defective, incompatible with American diesel fuel, and will
experience catastrophic and costly failure. The Plaintiffs and
other Class members are seeking recovery for this manifested and
immediately damaging defect, in addition to any and all
consequential damages stemming therefrom, says the suit.
General Motors LLC is an American multinational automotive
manufacturing company headquartered in Detroit, Michigan. [BN]
The Plaintiffs are represented by:
Robert C. Hilliard, Esq.
HILLIARD MARTINEZ GONZALES LLP
719 S. Shoreline Blvd.
Corpus Christi, TX 78401
Telephone: (361) 882-1612
Facsimile: (361) 882-3015
E-mail: bobh@hmglawfirm.com
- and –
Rudy Gonzales, Jr., Esq.
John B. Martinez, Esq.
Marion Reilly, Esq.
Bradford P. Klager, Esq.
HILLIARD MARTINEZ GONZALES LLP
719 S. Shoreline Blvd.
Corpus Christi, TX 78401
Telephone: (361) 882-1612
Facsimile: (361) 882-3015
E-mail: rudy@hmglawfirm.com
john@hmglawfirm.com
marion@hmglawfirm.com
brad@hmglawfirm.com
- and –
T. Michael Morgan, Esq.
MORGAN & MORGAN, P.A.
20 North Orange Ave., Ste. 1600
P.O. Box 4979
Orlando, FL 32801
Telephone: (407) 418-2081
Facsimile: (407) 245-3392
E-mail: mmorgan@forthepeople.com
- and –
Steve W. Berman, Esq.
Sean R. Matt, Esq.
HAGENS BERMAN SOBOL SHAPIRO LLP
1301 Second Avenue, Suite 2000
Seattle, WA 98101
Telephone: (206) 623-7292
Facsimile: (206) 623-0594
E-mail: steve@hbsslaw.com
sean@hbsslaw.com
GEORGIA: Class Cert. Bid Filing Extended to March 28, 2022
----------------------------------------------------------
In the class action lawsuit captioned as Delshone Thomas and
Gwendolyn Cheney, v. Georgia Department of Community Health; and
Caylee Noggle, in her official capacity as Commissioner of the
Georgia Department of Community Health, Case No. 1:21-cv-02558-LMM
(N.D. Ga.), the Hon. Judge Leigh Martin May entered an order
granting plaintiffs' unopposed motion to extend deadline to file
motion for class certification.
The Plaintiffs' deadline to file their motion for class
certification is extended through and including March 28, 2022,
says Judge May.
The Georgia Department of Community Health (DCH) is one of
Georgia's four health agencies serving the state's growing
population of over 10 million people.
A copy of the Court's order dated Nov. 29, 2021 is available from
PacerMonitor.com at https://bit.ly/3piPXHT at no extra charge.[CC]
GERALD HONDA: Simik Files FCRA Suit in S.D. Texas
-------------------------------------------------
A class action lawsuit has been filed against Gerald Honda of
Matteson. The case is styled as Wojciech Simik, individually, and
on behalf of all others similarly situated v. Gerald Honda of
Matteson, Case No. 1:21-cv-06347 (S.D. Tex., Nov. 29, 2021).
The lawsuit is brought over alleged violation of the Fair Credit
Reporting Act.
Gerald Honda of Matteson -- https://www.geraldhondamatteson.com/ --
is a Honda dealer in Matteson, Illinois.[BN]
The Plaintiff is represented by:
Mohammed Omar Badwan, Esq.
Omar Tayseer Sulaiman, Esq.
Victor Thomas Metroff, Esq.
Marwan Rocco Daher, Esq.
SULAIMAN LAW GROUP, LTD.
2500 S. Highland Avenue, Suite 200
Lombard, IL 60148
Phone: (331) 307-7646
Fax: (630) 575-8188
Email: osulaiman@sulaimanlaw.com
mbadwan@sulaimanlaw.com
vmetroff@sulaimanlaw.com
mdaher@sulaimanlaw.com
GLASHAUS INC: Weekes Files ADA Suit in S.D. New York
----------------------------------------------------
A class action lawsuit has been filed against Glashaus, Inc. The
case is styled as Robert Weekes, individually, and on behalf of all
others similarly situated v. Glashaus, Inc., Case No. 1:21-cv-10230
(S.D.N.Y., Dec. 1, 2021).
The lawsuit is brought over alleged violation of the Americans with
Disabilities Act.
Glashaus Inc was founded in 1983. The Company line of business
includes distributing construction materials.[BN]
The Plaintiff is represented by:
Edward Y. Kroub, Esq.
MIZRAHI KROUB LLP
200 Vesey Street, Ste. 24th Floor
New York, NY 10281
Phone: (212) 595-6200
Email: ekroub@mizrahikroub.com
GLOSSLAB LLC: Crosson Files ADA Suit in E.D. New York
-----------------------------------------------------
A class action lawsuit has been filed against Glosslab LLC. The
case is styled as Aretha Crosson, individually and as the
representative of a class of similarly situated persons v. Glosslab
LLC, Case No. 1:21-cv-06645 (E.D.N.Y., Nov. 30, 2021).
The lawsuit is brought over alleged violation of the Americans with
Disabilities Act.
Glosslab -- https://glosslab.com/ -- is a hygiene-first,
membership-based NYC nail studio operator.[BN]
The Plaintiff is represented by:
Dan Shaked, Esq.
SHAKED LAW GROUP, P.C.
14 Harwood Court, Suite 415
Scarsdale, NY 10583
Phone: (917) 373-9128
Email: shakedlawgroup@gmail.com
GOLDEN WEST: Butts Files Suit in Cal. Super. Ct.
------------------------------------------------
A class action lawsuit has been filed against Golden West Packaging
Group, LLC, et al. The case is styled as Alex John Butts, on behalf
of all others similarly situated v. Golden West Packaging Group,
LLC, Snelling Staffing, LLC, Does 1-10, Case No.
34-2021-00311468-CU-OE-GDS (Cal. Super. Ct., Sacramento Cty., Nov.
19, 2021).
The case type is stated as "Other Employment - Unlimited Civil."
Golden West Packaging Group -- https://goldenwestpackaging.com/ --
is a family of innovative businesses who provide packaging
solutions that complement your brand.[BN]
The Plaintiff is represented by:
Kane Moon, Esq.
MOON & YANG, APC
1055 W 7th St., Ste. 1880
Los Angeles, CA 90017-2529
Phone: 213-232-3128
Fax: 213-232-3125
Email: kane.moon@moonyanglaw.com
GOLDMAN SACHS: Faces Chen Suit Over Alleged Inside Trading
----------------------------------------------------------
KAI CHEN, individually and on behalf of all others similarly
situated, Plaintiff v. GOLDMAN SACHS GROUP INC.; and MORGAN
STANLEY, Defendants, Case No. 1:21-cv-09564 (S.D.N.Y., Nov. 18,
2021) is an action on behalf of all those investors who purchased
or otherwise acquired Tencent shares contemporaneously with the
Defendants' unlawful trades from March 22, 2021 through and
including March 29, 2021 (the "Class Period"), pursuant to Sections
20A, 10(b), and 20(a) of the Securities Exchange Act of 1934.
The Plaintiff alleges in the complaint that the Defendant is
engaged in the unlawful use of material non-public information. The
Defendants collectively avoided billions in losses by selling
shares of Tencent Music Entertainment Group ("Tencent" or the
"Company"), a leading online music and audio entertainment platform
in China, to the Plaintiff and other unsuspecting and unwitting
public shareholders, after confidentiality learning that Archegos
Capital Management ("Archegos"), a family office with $10 billion
under management, failed to meet a margin call, requiring it to
liquidate its position in the Company.
The Defendants knew, or were reckless in not knowing, that they
were prohibited from trading based on this confidential
market-moving information, but traded anyway, disposing to the
Plaintiff and other members of the Class their Tencent stock before
the news about Archegos was announced and Tencent's shares
plummeted. As a result, the Plaintiff and the Class have been
damaged from the Defendants' violations of U.S. securities laws,
says the suit.
The Goldman Sachs Group, Inc., a bank holding company, is a global
investment banking and securities firm specializing in investment
banking, trading and principal investments, asset management and
securities services. The Company provides services to corporations,
financial institutions, governments, and high-net worth
individuals.[BN]
The Plaintiff is represented by:
Jeremy A. Lieberman, Esq.
J. Alexander Hood II, Esq.
James M. LoPiano, Esq.
POMERANTZ LLP
600 Third Avenue, 20th Floor
New York, NY 10016
Telephone: (212) 661-1100
Facsimile: (212) 661-8665
Email: jalieberman@pomlaw.com
ahood@pomlaw.com
jlopiano@pomlaw.com
-and-
Peretz Bronstein, Eq.
BRONSTEIN, GEWIRTZ &
GROSSMAN, LLC
60 East 42nd Street, Suite 4600
New York, NY 10165
Telephone: (212) 697-6484
Facsimile: (212) 697-7296
Email: peretz@bgandg.com
GPS INTERNATIONAL: Kerr Seeks to Recover Unpaid Overtime Wages
---------------------------------------------------------------
BILLY KERR, individually and on behalf of all others similarly
situated v. GPS INTERNATIONAL, LLC, Case No. 1:21-cv-1140 (D.N.M.,
Nov. 30, 2021) seeks to recover unpaid overtime wages and other
damages from GPS International under the Fair Labor Standards Act,
the New Mexico Minimum Wage Act, and for unjust enrichment under
New Mexico law.
Mr. Kerr contends that he and the other workers like him were
typically scheduled for at least 12-hour shifts, 7 days a week, and
their hitches routinely lasted for weeks at a time. They often
worked even more than that, but they were not paid overtime for
hours worked in excess of 40 hours in a single workweek.
Instead of paying overtime as required by the FLSA and the NMMWA,
GPS improperly classified these workers as independent contractors
and paid them a single day rate for all hours worked each day, Kerr
adds.
GPS specializes in servicing the oil and gas industry. GPS's
clients are major oil and gas operating companies, multinational
energy service companies, multinational engineering and
construction companies and small businesses. GPS provides workers
for field services, including well testing, flowback operators,
flowback water transfer services.[BN]
The Plaintiff is represented by:
Matthew S. Parmet, Esq.
PARMET PC
3 Riverway, Ste. 1910
Houston, TX 77056
Telephone: (713) 999 5228
E-mail: matt@parmet.law
GROUPE RENAULT: Faces Class Action Over Diesel Emissions Tests
--------------------------------------------------------------
Jeffrey Clark at aviationanalysis.net reports that according to
Auto Claims Foundation, it was recently found that Renault and
Dacia brands use special programs to artificially reduce greenhouse
gas emissions. "Under normal use, these cars emit up to sixteen
times more nitrogen than what is legally permitted," says CEO Guido
van Workkom.
Deception
According to him, Renault and Dacia were aware of this, but decided
to keep it quiet about their customers. This misled them," said Van
Workkom. They bought a defective product that did not comply with
the law and paid a lot for it.
In addition to the French Renault and the Romanian sister brand
Dacia, the actions are also directed against the Dutch importer and
Dutch car dealers of these brands. This relates to all diesel cars
sold between September 1, 2009 and September 1, 2019. This is more
than 150,000 in the Netherlands.
Volkswagen
The Volkswagen diesel cheating scandal surfaced in 2015. The German
company then admitted that it had tampered with emissions tests on
a large scale using cheating software, making diesel cars appear
cleaner than they actually were. This has already cost the auto
company several billions in fines and repair costs.
In the years since, the Diesel Jet has expanded even more. In
addition to Volkswagen, Daimler also used cheat programs, which are
already costing the parent company of Mercedes-Benz in the United
States billions of dollars. Various cases are also pending against
Daimler in the Netherlands. So far Renault and Dacia have been
added.
Big names
Last summer, a judge in the Stichting Car Claim case against
Volkswagen, supplier Bosch, importer Boone and Dutch car dealers
ruled that people and companies who bought diaphragm diesel engines
were owed a total of hundreds of millions of euros in compensation.
An appeal is still pending on this ruling.
The Auto Claims Foundation was established in 2015 to financially
compensate victims. The board is made up of big names, including
Van Workkom (former director of ANWB), Fausto Pocar (former head of
the International Criminal Tribunal for the former Yugoslavia) and
Martin Osting (former National Ombudsman and former member of the
State Council). [GN]
HAMPTON INN: Fultz Sues Over Access Barriers to Disabled Persons
----------------------------------------------------------------
MARK FULTZ, individually and on behalf of all others similarly
situated, Plaintiff v. HAMPTON INN AND SUITES, Defendant, Case No.
2021CP1005431 (S.C. Ct. Com. Pl, Charleston Cty., December 1, 2021)
is a class action against the Defendant for violation of the
Americans with Disabilities Act.
According to the complaint, the Defendant has failed to design,
construct, maintain, and operate its hotel to be fully accessible
to and independently usable by the Plaintiff and similarly situated
disabled persons. The Plaintiff has encountered architectural
barriers at the Defendant's property. The barriers to access at the
property have endangered his safety. The Defendant has
discriminated against the Plaintiff by denying him access to, and
full and equal enjoyment of, the goods, services, facilities,
privileges, advantages and/or accommodations of the buildings,
alleges the suit.
Hampton Inn and Suites is a hotel operator located at 1104 Isle of
Palms, Connector, Mt. Pleasant, South Carolina. [BN]
The Plaintiff is represented by:
Anthony J. Brady Jr., Esq.
1670-9 Springdale Drive
Camden, SC 29020
Telephone: (561) 603-8387
E-mail: ladbrady@gmail.com
HEALTH & HOSPITAL CORP: Crimans Sues Over Data Breach
-----------------------------------------------------
Stacey Crimans, individually and on behalf of all others similarly
situated, Plaintiff, v. Health & Hospital Corporation of Marion
County, Defendant, Case No. 21-cv-02906, (S.D. Ind., November 23,
2021), seeks injunctive and other equitable relief for violation of
the federal Health Information Portability and Accountability Act
and state medical record protection acts and resulting from the
failure to properly secure and safeguard personal identifiable
information and protected health information that Forward Air
acquired from or created for its employees, including without
limitation, names, addresses, dates of birth, patient
identification numbers, Social Security numbers, driver's
license/state ID numbers, passport numbers, credit/debit card
information and financial account information.
Health & Hospital Corporation of Marion County operates as
"Eskenazi Health," an essential health care system. On November 11,
2021, Eskenazi sent a form letter to its former and current
patients, employees and providers throughout the country informing
them that hackers had gained access to its networks on May 19,
2021. Crimans worked for Eskenazi Health in 2019. [BN]
Plaintiff is represented by:
Stuart A. Davidson, Esq.
Bradley M. Beall, Esq.
ROBBINS GELLER RUDMAN & DOWD LLP
120 East Palmetto Park Road, Suite 500
Boca Raton, FL 33432
Telephone: (561) 750-3000
Fax: (561) 750-3364
Email: sdavidson@rgrdlaw.com
bbeall@rgrdlaw.com
- and -
Paolo C. Meireles, Esq.
SHAVITZ LAW GROUP, P.A.
951 Yamato Rd, Suite 285
Boca Raton, FL 33431
Telephone: (561) 447-8888
Email: pmeireles@shavitzlaw.com
HEALTHCARE SERVICES: Bacon Sues Over Unpaid Overtime for Cooks
--------------------------------------------------------------
RHONDA MARLEEN BACON, individually and on behalf of all others
similarly situated, Plaintiff v. HEALTHCARE SERVICES GROUP, INC.,
Defendant, Case No. 1:21-cv-00300 (E.D. Tenn., December 1, 2021) is
a class action against the Defendant for its failure to compensate
the Plaintiff and similarly situated employees overtime pay for all
hours worked in excess of 40 hours in a workweek in violation of
the Fair Labor Standards Act.
The Plaintiff was employed as a full-time cook at the Defendant's
facility named Signature Healthcare of Cleveland located in
Cleveland, Tennessee.
Healthcare Services Group, Inc. is a provider of housekeeping,
laundry, dining, and nutritional services, with its principal place
of business located at Suite 300 3220 Tillman Drive, Bensalem,
Pennsylvania. [BN]
The Plaintiff is represented by:
J. Russ Bryant, Esq.
Robert E. Turner, IV, Esq.
Robert E. Morelli, III, Esq.
JACKSON, SHIELDS, YEISER, HOLT, OWEN & BRYANT
262 German Oak Drive
Memphis, TN 38018
Telephone: (901) 754-8001
Facsimile: (901) 754-8524
E-mail: rbryant@jsyc.com
rturner@jsyc.com
rmorelli@jsyc.com
HENOCH ENTERPRISES: Sosa Files ADA Suit in S.D. New York
--------------------------------------------------------
A class action lawsuit has been filed against Henoch Enterprises,
Inc. The case is styled as Yony Sosa, on behalf of himself and all
other persons similarly situated v. Henoch Enterprises, Inc., Case
No. 1:21-cv-10159 (S.D.N.Y., Nov. 30, 2021).
The lawsuit is brought over alleged violation of the Americans with
Disabilities Act.
Henoch Enterprises, Inc. is in the Business Services, N.E.C.
industry in New York City.[BN]
The Plaintiff is represented by:
Michael A. LaBollita, Esq.
GOTTLIEB & ASSOCIATES
150 E. 18 St., Suite PHR
New York, NY 10003
Phone: (212) 228-9795
Email: michael@gottlieb.legal
HOUSING AUTHORITY: Faces Wells Wage-and-Hour Suit in W.D. Ky.
-------------------------------------------------------------
SUSAN WELLS, individually and on behalf of all others similarly
situated, Plaintiff v. HOUSING AUTHORITY OF MADISONVILLE,
Defendant, Case No. 4:21-cv-00127-JHM-HBB (W.D. Ky., November 30,
2021) is a class action against the Defendant for its failure to
compensate the Plaintiff and similarly situated workers overtime
pay for all hours worked in excess of 40 hours in a workweek and
failure to timely pay wages in violation of the Fair Labor
Standards Act and the Kentucky Wages and Hours Act.
The Plaintiff worked for the Defendant as a maintenance employee.
Housing Authority of Madisonville is a government agency that
operates and manages public housing in Madisonville, Kentucky.
[BN]
The Plaintiff is represented by:
Mark N. Foster, Esq.
LAW OFFICE OF MARK N. FOSTER, PLLC
P.O. Box 869
Madisonville, KY 42431
Telephone: (270) 213-1303
E-mail: Mfoster@MarkNFoster.com
HRB BRANDS: Molina Sues Over Antiperspirants' Benzene Content
-------------------------------------------------------------
MARY MOLINA and CARLO GARCIA, individually and on behalf of all
others similarly situated, Plaintiffs v. HRB BRANDS, LLC, HELEN OF
TROY LTD., and IDELLE LABS, LTD., Defendants, Case No.
1:21-at-01078 (E.D. Cal., December 1, 2021) is a class action
against the Defendants for violations of California's Consumer
Legal Remedies Act, California's False Advertising Law,
California's Unfair Competition Law, breach of express warranty,
breach of implied warranty, and unjust enrichment.
According to the complaint, the Defendants are engaged in false,
deceptive, and misleading advertising, labeling, and marketing of
Sure Unscented Aerosol antiperspirant and Brut Classic 24-Hour
Protection aerosol antiperspirant products. The Defendants failed
to disclose that the products contain benzene, a known human
carcinogen. As a result of the Defendants' alleged
misrepresentations, the Plaintiffs and Class members were injured
in fact and lost money. Had they known the truth, they would not
have purchased the products.
HRB Brands, LLC is a consumer goods company, headquartered in
Westport, Connecticut.
Helen of Troy Ltd. is a multinational consumer goods company,
headquartered in El Paso, Texas.
Idelle Labs, Ltd. is a wholly-owned subsidiary of Helen of Troy
Ltd., headquartered in El Paso, Texas. [BN]
The Plaintiffs are represented by:
Alex R. Straus, Esq.
MILBERG COLEMAN BRYSON PHILLIPS GROSSMAN, PLLC
280 South Beverly Drive
Beverly Hills, CA 90212
Telephone: (917) 471-1894
Facsimile: (310) 496-3176
E-mail: astraus@milberg.com
- and –
Nick Suciu, III, Esq.
MILBERG COLEMAN BRYSON PHILLIPS GROSSMAN, PLLC
6905 Telegraph Rd., Suite 115
Bloomfield Hills, MI 48301
Telephone: (313) 303-3472
Facsimile: (865) 522-0049
- and –
Jennifer Czeisler, Esq.
Virginia Ann Whitener, Esq.
Russell Busch, Esq.
MILBERG COLEMAN BRYSON PHILLIPS GROSSMAN, PLLC
800 S. Gay Street, Suite 1100
Knoxville, TN 37929
Telephone: (865) 247-0080
Facsimile: (865) 522-0049
HUGEDOMAINS.COM: Contreras Files ADA Suit in S.D. New York
----------------------------------------------------------
A class action lawsuit has been filed against HugeDomains.com LLC.
The case is styled as Yensy Contreras, individually and on behalf
of all others similarly situated v. HugeDomains.com LLC, Case No.
1:21-cv-10199 (S.D.N.Y., Dec. 1, 2021).
The lawsuit is brought over alleged violation of the Americans with
Disabilities Act.
HugeDomains -- https://www.hugedomains.com/ -- is the world leader
in premium domains names.[BN]
The Plaintiff is represented by:
Jarrett Scott Charo, Esq.
MIZRAHI KROUB LLP
200 Vesey Street, Ste. 24th Floor
New York, NY 10281
Phone: (212) 595-6200
Email: jcharo@mizrahikroub.com
IAS SERVICES: Faces Bradley Suit Over Claim Adjusters' Unpaid OT
----------------------------------------------------------------
NIKKI BRADLEY, individually and on behalf of all others similarly
situated, Plaintiff v. IAS SERVICES GROUP, LLC, Defendant, Case No.
4:21-cv-03747 (S.D. Tex., November 16, 2021) brings this complaint
to recover damages and other legal and equitable relief against the
Defendant pursuant to the Fair Labor Standards Act.
The Plaintiff has worked for the Defendant as claim adjuster for
its Progressive Corp. account to adjust insurance claims made to
Progressive.
The Plaintiff asserts that she and other similarly situated claim
adjusters routinely work in excess of 40 hours per workweek.
Although they record their hours worked via the Defendant's
timekeeping software called "Workday," the Defendant only pays them
based on the that Progressive approves and deems "productive." As a
result, the Plaintiff and other similarly situated claims adjusters
were not properly compensated for all hours worked, including
overtime at the rate of one and one-half times their regular rates
of pay for all hours worked in excess of 40 per workweek, says the
suit.
IAS Services Group, LLC is an insurance claims adjusting company
that contracts with insurance agencies to provide them with Claims
Adjusters. [BN]
The Plaintiff is represented by:
Larry Taylor, Esq.
Nicole Taylor, Esq.
THE COCHRAN FIRM
2646 S Loop W Unit 305
Houston, TX 77054
Tel: (713) 843-3476
Fax: (214) 651-4261
E-mail: Ltaylor@CochranTexas.com
Nicole.Taylor@CochranTexas.com
- and –
James A. Vagnini, Esq.
Alexander M. White, Esq.
VALLI KANE & VAGNINI LLP
600 Old Country Road, Suite 519
Garden City, NY 11530
Tel: (516) 203-7180
Fax: (516) 706-0248
E-mail: jvagnini@vkvlawyers.com
awhite@vkvlawyers.com
JJ FOOD MARKET: Flores Seeks Unpaid Overtime Wages, Payslips
------------------------------------------------------------
Jose Antonio Tatacoya Flores, on behalf of himself and all others
similarly situated, Plaintiff, v. 153 J and J Food Market Corp. and
Julian Ramos, Defendants, Case No. 21-cv-04779, (S.D. N.Y.,
November 24, 2021), seeks overtime wages, liquidated damages,
attorneys' fees and costs under the Fair Labor Standards Act and
New York labor laws.
Defendants own, operate, or control a grocery store, located at 153
99th Street, New York, NY 10029 under the name "JJ Food Market
Corp" where Flores worked as an hourly-paid cashier. He claims to
have worked in excess of 40 hours per week, without appropriate
overtime compensation for the hours that he worked and alleges that
J&J failed to maintain accurate record-keeping of the hours worked
and failed to pay him appropriately for any hours worked, either at
the straight rate of pay or for any additional overtime premium.
[BN]
Plaintiff is represented by:
Catalina Sojo, Esq.
CSM LEGAL, PC
60 East 42nd Street, Suite 4510
New York, NY 10165
Telephone: (212) 317-1200
Facsimile: (212) 317-1620
JOHNSON & JOHNSON: Contreras Files ADA Suit in S.D. New York
------------------------------------------------------------
A class action lawsuit has been filed against Johnson & Johnson
Consumer Inc. The case is styled as Yensy Contreras, individually
and on behalf of all others similarly situated v. Johnson & Johnson
Consumer Inc., Case No. 1:21-cv-10169 (S.D.N.Y., Nov. 30, 2021).
The lawsuit is brought over alleged violation of the Americans with
Disabilities Act.
Johnson & Johnson Consumer Companies Inc. -- https://www.jnj.com/
-- engages in the research and development of products.[BN]
The Plaintiff is represented by:
Jarrett Scott Charo, Esq.
MIZRAHI KROUB LLP
200 Vesey Street, Ste. 24th Floor
New York, NY 10281
Phone: (212) 595-6200
Email: jcharo@mizrahikroub.com
K&P FACILITIES: Cleaners Sue Over Unpaid Wages
----------------------------------------------
Fredy Luna Martinez, Jaime Lopez Cruz and Miguel Elescano,
individually and on behalf of all those similarly situated,
Plaintiff, v. K&P Facilities Maintenance Inc. and Carlos Espinoza,
Defendants, Case No. 21-cv-09987, (S.D. N.Y., November 24, 2021),
seeks to recover earned but unpaid wages, liquidated damages,
liquidated and statutory damages pursuant to New York labor laws
and the federal Fair Labor Standards Act, reasonable attorneys'
fees, costs and interest, as well as declaratory relief for failure
to comply with New York Labor Law, and wage notice and wage
statement requirement violations.
K&P Facilities Maintenance Inc. is a large-scale commercial
cleaning company with major facilities in the New York metropolitan
area as well as in neighboring states. Martinez worked at several
of its job sites including Vassar Brothers Medical Center, Orange
County Hospital, a hospital in Pennsylvania, medical offices in
Goshen, NY and New Windsor, NY and K&P's own warehouse in Wappinger
Falls.
On July 2021, Martinez did not receive his owed wages and
complained to Espinoza. He claims to have received multiple
threatening messages from Espinoza, including threats of physical
violence and threats of reprisals through complaints to law
enforcement.
Cruz was employed by K&P from approximately March 2021 to August
2021, working at least in two of its job sites including Orange
County Hospital and a location in Pennsylvania. He typically worked
between six and seven days per week and his shifts were at least
seven hours in duration, but some days he worked as many as 16
hours straight. He claims to be never paid a premium rate for
overtime hours nor an additional hour of pay when he worked split
shifts or more than 10 hours in a day.
Elescano was employed by Defendants from approximately March 2020
to April 2021. He worked at least two of K&P's job sites including
Vassar Brother Medical Center and Orange County Hospital. He claims
to have routinely worked in excess of 40 hours per week and often
worked more than 10 hours in a day but was never paid a premium
rate for his overtime hours and never paid an extra hour of pay for
working more than ten hours in a day. [BN]
Plaintiff is represented by:
Robert McCreanor, Esq.
LAW OFFICE OF ROBERT D. MCCREANOR, PLLC
245 Saw Mill River Road, Suite 106
Hawthorne, NY 10532
Tel: (845) 202 1833
Email: rmccreanor@rdmclegal.com
- and -
Patricia Kakalec, Esq.
KAKALEC LAW PLLC
195 Montague Street, 14th Floor
Brooklyn, NY 11201
Tel: (212) 705-8730
Email: patricia@kakaleclaw.com
KASHI SALES: Faces Hoffman Suit Over Mislabeled Breakfast Bars
--------------------------------------------------------------
PETER HOFFMANN, individually and on behalf of all others similarly
situated, Plaintiff v. KASHI SALES, L.L.C., Defendant, Case No.
7:21-cv-09642 (S.D.N.Y., Nov. 21, 2021) alleges that the Defendant
mislabeled its Ripe Strawberry Soft Baked Breakfast Bars under the
Kashi brand.
According to the complaint, the front label shows a bar with bright
red filling, a background of various shades of red, defendant's
logo with a swaying stalk of wheat, the statements, "Ripe
Strawberry, 3g Fiber," "Made with Wildflower Honey," and "10g Whole
Grains," and a seal indicating "Non-GMO Project Verified."
The back of the package shows a similar red background, two fresh,
ripe strawberries, a smattering of freshly harvested oats, the
statements, "Simply Delicious," and Delightfully Nutritious,". The
representations are allegedly misleading because they give
consumers the impression the fruit filling contains a greater
relative and absolute amount of strawberry and honey ingredients
than it does.
Had the Plaintiff and proposed class members known the truth, they
would not have bought the Product or would have paid less for it.
The Product is sold for a price premium compared to other similar
products, no less than approximately $4.59 for six 1.2 OZ (35g), a
higher price than it would otherwise be sold for, absent the
misleading representations and omissions, added the suit.
KASHI SALES, L.L.C. produces healthy, whole-grain foods such as
breakfast cereals, frozen dinners, and granola bars. [BN]
The Plaintiff is represented by:
Spencer Sheehan, Esq.
SHEEHAN & ASSOCIATES, P.C.
60 Cuttermill Rd Ste 409
Great Neck NY 11021
Telephone: (516) 268-7080
Email: spencer@spencersheehan.com
KAYEM FOODS: Rodriguez Files ADA Suit in E.D. New York
------------------------------------------------------
A class action lawsuit has been filed against Kayem Foods, Inc. The
case is styled as Angel Rodriguez, individually and as the
representative of a class of similarly situated persons v. Kayem
Foods, Inc., Case No. 1:21-cv-06616 (E.D.N.Y., Nov. 29, 2021).
The lawsuit is brought over alleged violation of the Americans with
Disabilities Act.
Kayem Foods -- https://www.kayem.com/ -- is a family owned and
operated craft meat business that has been making New England's
favorite franks, sausages and prepared meats in Chelsea, MA.[BN]
The Plaintiff is represented by:
Dan Shaked, Esq.
SHAKED LAW GROUP, P.C.
14 Harwood Court, Suite 415
Scarsdale, NY 10583
Phone: (917) 373-9128
Email: shakedlawgroup@gmail.com
KAZ USA: Contreras Files ADA Suit in S.D. New York
--------------------------------------------------
A class action lawsuit has been filed against Kaz USA, Inc. The
case is styled as Yensy Contreras, individually and on behalf of
all others similarly situated v. Kaz USA, Inc., Case No.
1:21-cv-10164 (S.D.N.Y., Nov. 30, 2021).
The lawsuit is brought over alleged violation of the Americans with
Disabilities Act.
Kaz, Inc. -- https://www.kaz.com/ -- is a Marlborough,
Massachusetts-based manufacturer and distributor of health care
products.[BN]
The Plaintiff is represented by:
Jarrett Scott Charo, Esq.
MIZRAHI KROUB LLP
200 Vesey Street, Ste. 24th Floor
New York, NY 10281
Phone: (212) 595-6200
Email: jcharo@mizrahikroub.com
KELLOGG SALES: Class Settlement in Hadley Suit Wins Final Approval
------------------------------------------------------------------
In the case, STEPHEN HADLEY, et al., Plaintiffs v. KELLOGG SALES
COMPANY, Defendant, Case No. 16-CV-04955-LHK (N.D. Cal.), Judge
Lucy H. Koh of the U.S. District Court for the Northern District of
California, San Jose Division, granted the Plaintiffs' Motion for
Final Approval of Class Action Settlement, and Motion for
Attorneys' Fees.
Judge Koh has considered the Plaintiffs' Motion for Final Approval
and Motion for Attorneys' Fees, including the Nov. 22, 2021
Supplemental Declaration in Support of the Plaintiffs' Motion for
Final Approval, which includes an updated lodestar; the arguments
at the Nov. 18, 2021 Final Approval Hearing; and the record in the
case.
The Court has jurisdiction over the subject matter of the Action
and over the Parties, including all members of the following
Settlement Class certified for settlement purposes in the Court's
Preliminary Approval Order: "All persons in the United States who,
between August 29, 2012 and May 1, 2020 (the "Class Period"),
purchased in the United States, for household use and not for
resale or distribution, any of the Class Products identified in the
Settlement Agreement."
For purposes of settlement, Judge Koh finally certified the
Settlement Class.
A total of three Settlement Class Members submitted timely and
proper Requests for Exclusion, as reported in the declaration of
the Class Administrator submitted to the Court. Judge Koh ordered
that each of the individuals listed by the Class Administrator as
having submitted a valid Request for Exclusion is excluded from the
Settlement Class. Those individuals will not be bound by the
Settlement Agreement, and neither will they be entitled to any of
its benefits.
Judge Koh finally approved the Settlement Agreement, the exhibits,
and the Settlement contemplated thereby, and directed its
consummation pursuant to its terms and conditions. She approved the
Class Counsel's application for attorneys' fees and costs in the
amount of $3.9 million in fees and $1,157,501 in costs; and
approved service awards of $10,000 for Plaintiff Stephen Hadley,
and $5,000 each for Plaintiffs Melody DiGregorio, Eric Fishon,
Kerry Austin, and Nafeesha Madyun.
The Settlement Agreement provides for the Class Counsel's Fee Award
to be paid before the time to appeal the Order has expired. If the
Fee Award is voided or reduced on appeal, either directly or as a
result of the final approval of the Settlement as a whole being
vacated, overturned, reversed, or rendered void as a result of an
appeal, the Class Counsel will within 30 days repay either to the
Settlement Fund or to Kellogg the affected amount of the attorneys'
fees and costs paid to the Class Counsel, in an amount
proportionate to the distribution among the Class Counsel's firms,
in accordance with the directions in the Settlement Agreement.
By receiving any payments pursuant to the Settlement Agreement, The
Law Office of Jack Fitzgerald, PC and Jackson & Foster, LLC and
their shareholders, members, and/or partners submit to the
jurisdiction of the Court for the enforcement of the reimbursement
obligation set forth and in the Settlement Agreement. If the Class
Counsel fails to timely repay the attorneys' fees and costs that
are owed under this provision, the Court will be entitled, upon
application of Kellogg and notice to the Class Counsel, to
summarily issue orders, including but not limited to judgments and
attachment orders against each of Class Counsel.
Judge Koh dismissed with prejudice, without costs to any party,
except as expressly provided for in the Settlement Agreement, the
Action, as defined in the Settlement Agreement. Upon the Effective
Date as defined in the Settlement Agreement, the Plaintiffs and
each and every one of the Settlement Class Members unconditionally,
fully, and finally releases and forever discharges the Released
Parties from the Released Claims.
The Settlement Agreement and any and all negotiations, documents,
and discussions associated with it will not be deemed or construed
to be an admission or evidence of any violation of any statute,
law, rule, regulation, or principle of common law or equity, or of
any liability or wrongdoing by the Defendant, or the truth of any
of the claims. Evidence relating to the Agreement will not be
discoverable or admissible, directly or indirectly, in any way,
whether in this Action or in any other action or proceeding, except
for purposes of demonstrating, describing, implementing, or
enforcing the terms and conditions of the Agreement, the
Preliminary Approval Order, or the Order.
Judge Koh's findings and rulings in the Order are made for the
purposes of settlement only and may not be cited or otherwise used
to support the certification of any contested class or subclass in
any other action.
Judge Koh determined that the Final Order complies in all respects
with Federal Rule of Civil Procedure 65(d)(1).
Without affecting the finality of the Judgment, the Court reserves
jurisdiction over the implementation, administration, and
enforcement of the Judgment and the Agreement and all matters
ancillary to the same.
Within 21 days after the distribution of the settlement funds to
the Class Members, the parties should file a Post-Distribution
Accounting in accordance with the Northern District of California's
Procedural Guidance for Class Action Settlements.
A full-text copy of the Court's Nov. 23, 2021 Order is available at
https://tinyurl.com/wj5w2vap from Leagle.com.
KELLOGG SALES: N.D. California Enters Final Judgment in Hadley Suit
-------------------------------------------------------------------
Judge Lucy J. Koh of the U.S. District Court for the Northern
District of California, San Jose Division, entered Judgment in the
case, STEPHEN HADLEY, et al., Plaintiffs v. KELLOGG SALES COMPANY,
Defendant, Case No. 16-CV-04955-LHK (N.D. Cal.).
On Nov. 23, 2021, she granted the Plaintiffs' Motion for Final
Approval of Class Action Settlement and Plaintiffs' Motion for
Attorneys' Fees.
A full-text copy of the Court's Nov. 23, 2021 Order is available at
https://tinyurl.com/yc7s6mf8 from Leagle.com.
KIRKLAND'S STORES: Ct. Modifies August 10, 2021 Scheduling Order
----------------------------------------------------------------
In the class action lawsuit captioned as ARIANA MILES,
individually, and on behalf of other members of the general public
similarly situated and on behalf of other aggrieved employees
pursuant to the California Private Attorneys General Act, v.
KIRKLAND'S STORES, INC., Case No. 5:18-cv-01559-JWH-SHK (C.D.
Cal.), the Hon. Judge John W. Holcomb entered an order modifying
its August 10, 2021 Scheduling Order as follows:
-- All outstanding written discovery response deadlines are
continued until 30 calendar days after the court enters an
order on Plaintiff's Motion for Class Certification;
-- Hearing on Plaintiff's certification motion: January 14,
2022, at 9:00 a.m.;
-- Case Management Conference: February 11, 2022, at 11:00
a.m., at which time the Court will set deadlines for the
following:
-- Expert Disclosure (initial)
-- Non-Expert Discovery Cutoff
-- Expert Disclosure (rebuttal)
-- Expert Discovery Cutoff
-- Deadline for hearing non-discovery motions
-- Hearing on Motions in Limine
-- Pretrial conference
-- Trial
Kirkland's Stores operates as a home furnishing store.
A copy of the Court's order dated Nov. 29, 2021 is available from
PacerMonitor.com at https://bit.ly/3rmuJf7 at no extra charge.[CC]
KMD PARTNERS: Bradford Files FCRA Suit in S.D. Texas
----------------------------------------------------
A class action lawsuit has been filed against KMD Partners, LLC.
The case is styled as Radley Bradford, individually, and on behalf
of all others similarly situated v. KMD Partners, LLC doing
business as: CreditNinja, Case No. 4:21-cv-03881 (S.D. Tex., Nov.
29, 2021).
The lawsuit is brought over alleged violation of the Fair Credit
Reporting Act.
Partners, LLC doing business as CreditNinja --
https://www.creditninja.com/ -- offers personal installment loans
to borrowers in need.[BN]
The Plaintiff is represented by:
Jennifer Ann McLaughlin Filipiak, Esq.
Marwan Rocco Daher, Esq.
Omar Tayseer Sulaiman, Esq.
Victor Thomas Metroff, Esq.
Mohammed Omar Badwan, Esq.
SULAIMAN LAW GROUP, LTD.
2500 S. Highland Avenue, Suite 200
Lombard, IL 60148
Phone: (331) 307-7646
Fax: (630) 575-8188
Email: jennifer.a.filipiak@gmail.com
mdaher@sulaimanlaw.com
osulaiman@sulaimanlaw.com
vmetroff@sulaimanlaw.com
mbadwan@sulaimanlaw.com
KONINKLIJKE PHILIPS: Mallory Files Suit in W.D. Pennsylvania
------------------------------------------------------------
A class action lawsuit has been filed against Koninklijke Philips
N.V., et al. The case is styled as Carol Ann Mallory, individually
and on behalf of himself and all others similarly situated v.
Koninklijke Philips N.V., Philips North America LLC, Philips RS
North America LLC, Case No. 2:21-cv-01741-JFC (W.D. Pa., Nov. 30,
2021).
The nature of suit is stated as Personal Injury: Health
Care/Pharmaceutical Personal Injury Product Liability.
Koninklijke Philips N.V. -- https://www.philips.com/global -- is a
Dutch multinational conglomerate corporation that was founded in
Eindhoven.[BN]
The Plaintiff is represented by:
Arthur H. Stroyd, Jr., Esq.
DEL SOLE CAVANAUGH STROYD LLC
3 PPG Place, Suite 600
Pittsburgh, PA 15222
Phone: (412) 261-2172
Fax: (412) 261-2110
Email: astroyd@dscslaw.com
KROGER CO: Walker Files Suit in Cal. Super. Ct.
-----------------------------------------------
A class action lawsuit has been filed against The Kroger Co., et
al. The case is styled as Sandra Walker, an individual, on behalf
of herself and all others similarly situated v. The Kroger Co., a
foreign corporation, Does 1 through 100, Inclusive, Case No.
CGC21596857 (Cal. Super. Ct., San Francisco Cty., Nov. 30, 2021).
The case type is stated as "Business Tort."
The Kroger Company, or simply Kroger --
https://www.thekrogerco.com/ -- is an American retail company
founded by Bernard Kroger in 1883 in Cincinnati, Ohio.[BN]
The Plaintiff is represented by:
Mike Arias, Esq.
ARIAS SANGUINETTI WANG & TORRIJOS LLP
6701 Center Dr. W., Ste. 1400
Los Angeles, CA 90045-7504
Phone: 310-844-9696
Fax: 310-861-0168
Email: mike@aswtlawyers.com
LANDMARK INFRASTRUCTURE: Proposed Merger Lacks Info, Coffman Says
-----------------------------------------------------------------
CATHERINE COFFMAN, individually and on behalf of all others
similarly situated, Plaintiff v. LANDMARK INFRASTRUCTURE PARTNERS
LP; ARTHUR P. BREAZY JR.; KEITH BENSON; THOMAS CAREY WHITE, III;
GERALD A. TYWONIUK; STEVEN SONNENSTEIN; and SADIQ MALIK,
Defendants, Case No. 2:21-cv-09055 (C.D. Cal., Nov. 18, 2021) is a
class action suit against Landmark Infrastructure Partners LP
("Landmark" or the "Partnership") and the members of the Board of
Directors of Landmark's general partner, Landmark Infrastructure
Partners GP LLC (the "GP") (the "Board" or the "Individual
Defendants") for their violations of the Securities Exchange Act of
1934 (the "Exchange Act"), seeking to enjoin the vote on a proposed
transaction, pursuant to which Landmark will be acquired by
Landmark Dividend LLC ("LD") through its affiliates LM Infra
Acquisition Company, LLC ("LM Infra"), LM DV Infrastructure, LLC
("LM DV Infra"), Digital LD MergerCo LLC ("Merger Sub"), Digital LD
MergerCo II LLC ("Merger Sub II", and together with LM DV Infra, LM
Infra and Merger Sub, the "Buyer Parties") (the "Proposed
Transaction").
According to the complaint, on August 23, 2021, Landmark issued a
press release announcing that it had entered into a Transaction
Agreement dated August 21, 2021 (the "Transaction Agreement") to
sell Landmark to LD. Under the terms of the Transaction Agreement,
Landmark unitholders will receive $16.50 in cash for each Landmark
common unit they own. The Proposed Transaction is valued at
approximately $1 billion.
On October 26, 2021, Landmark filed a Schedule 14A Definitive Proxy
Statement (the "Proxy Statement") with the SEC. The Proxy
Statement, which recommends that Landmark unitholders vote in favor
of the Proposed Transaction, omits or misrepresents material
information concerning, among other things, the financial
projections for Landmark and the data and inputs underlying the
financial valuation analyses that support the fairness opinion
provided by the Conflicts Committee of the Board's ("Conflicts
Committee") financial advisor, Evercore Group L.L.C. ("Evercore").
The Defendants authorized the issuance of the false and misleading
Proxy Statement in violation of the Exchange Act, added the suit.
Unless remedied, Landmark's public unitholders will be irreparably
harmed because the Proxy Statement's alleged material
misrepresentations and omissions prevent them from making a
sufficiently informed voting decision on the Proposed Transaction.
LANDMARK INFRASTRUCTURE PARTNERS LP is a special purpose entity of
Landmark. The Company acquires, owns and manages a portfolio of
real property interests that are leased to companies in the
wireless communication, outdoor advertising and renewable power
generation industries. [BN]
The Plaintiff is represented by:
Joel E. Elkins, Esq.
WEISSLAW LLP
611 Wilshire Blvd., Suite 808
Los Angeles, CA 90017
Telephone: (310) 208-2800
Facsimile: (310) 209-2348
-and-
Richard A. Acocelli, Esq.
WEISSLAW LLP
305 Broadway, 7th Floor
New York, NY 10007
Telephone: (212) 682-3025
Facsimile: (212) 682-3010
LANDSEA HOMES: Green Sues Over Unpaid Minimum, Overtime Wages
-------------------------------------------------------------
Jennifer Ann Green, individually, and on behalf of all others
similarly situated v. LANDSEA HOMES CORPORATION, a Delaware
corporation; and DOES 1 through 10, inclusive, Case No.
30-2021-01232212-CU-OE-CXC (Cal. Super. Ct., Orange Cty., Nov. 17,
2021), is brought against the Defendants for California Labor Code
violations and unfair business practices stemming from the
Defendants' failure to pay minimum wages, failure to pay overtime
wages, failure to provide meal periods, failure to authorize and
permit rest periods, failure to maintain accurate records of hours
worked and meal periods, failure to timely pay all wages to
terminated employees, failure to indemnify necessary business
expenses, and failure to furnish accurate wage statements.
The complaint alleges that the Defendants maintained a policy and
practice of failing to pay Plaintiff and the Class the correct
amount of overtime pay in compliance with California law. The
Plaintiff and the Class earned non-discretionary bonuses,
commissions, and other remuneration. The Defendants, however,
failed to include all remuneration earned when determining the
correct regular rate of pay. As a result, the Defendants failed to
pay the correct overtime rate of pay, double-time rate of pay, meal
premium rate of pay, and sick day rate of pay, says the complaint.
The Plaintiff is a California resident that worked for the
Defendants in the County of Orange, State of California, as a sales
counsellor from July 2020 to July 2021.
The Defendants own/owned and operate/operated an industry,
business, and establishment within the State of California,
including Orange County.[BN]
The Plaintiff is represented by:
Kane Moon, Esq.
Allen Feghali, Esq.
Enzo Nabiev, Esq.
MOON & YANG, APC
1055 W. Seventh St., Suite 1880
Los Angeles, CA 90017
Phone: (213) 232-3128
Facsimile: (213) 232-3125
Email: kane.moon@moonyanglaw.com
allen.feghali@moonyanglaw.com
enzo.nabiev@moonyanglaw.com
LE-VEL: Weekes Files ADA Suit in S.D. New York
----------------------------------------------
A class action lawsuit has been filed against Le-Vel. The case is
styled as Robert Weekes, individually, and on behalf of all others
similarly situated v. Le-Vel, Case No. 1:21-cv-10217-VEC (S.D.N.Y.,
Dec. 1, 2021).
The lawsuit is brought over alleged violation of the Americans with
Disabilities Act.
Le-Vel -- https://le-vel.com/ -- is the fastest growing health and
wellness movement in the world.[BN]
The Plaintiff is represented by:
Edward Y. Kroub, Esq.
MIZRAHI KROUB LLP
200 Vesey Street, Ste. 24th Floor
New York, NY 10281
Phone: (212) 595-6200
Email: ekroub@mizrahikroub.com
LEXINFINTECH HOLDINGS: Securities Suit Dismissed Without Prejudice
------------------------------------------------------------------
In the case, In re LEXINFINTECH HOLDINGS LTD. SECURITIES
LITIGATION, Case No. 3:20-cv-1562-SI (D. Or.), Judge Michael H.
Simon of the U.S. District Court for the District of Oregon granted
Defendant Lexin's:
(i) Motion to Dismiss, made pursuant to Rules 9(b) and
12(b)(6) of the Federal Rules of Civil Procedure and
Section 21D(b)(1) of the Private Securities Litigation
Reform Act (PSLRA) of 1995; and
(ii) Request for Incorporation by Reference and Judicial
Notice.
Background
The putative class action securities fraud case is brought by
shareholders (the Plaintiffs) of Defendant Lexin. The Plaintiffs
allege that Lexin and certain of its current and former directors
and officers, Jay Wenjie Xiao, Craig Yan Zeng, Keyi Chen, Yibo
Shao, and Jared Yi Wu (Individual Defendants), made material
misrepresentations or omissions that artificially inflated Lexin's
stock price in violation the Securities Act of 1933 and the
Securities Exchange Act of 1934.
As alleged in the Amended Class Action Complaint, it is a putative
class action on behalf of persons or entities who purchased or
otherwise acquired publicly traded LexinFintech securities (a)
pursuant or traceable to the Company's initial public offering
conducted on Dec. 21, 2017 (the IPO); or (b) between Dec. 21, 2017
and Aug. 24, 2020, both dates inclusive (the Class Period).
A putative class seeks to recover compensable damages caused by the
Defendants' alleged violations of the Securities Act and the
Exchange Act. The claims asserted in the action arise under
Sections 11 and 15 of the Securities Act (15 U.S.C. Sections 77k
and 77o) and Sections 10(b) and 20(a) of the Exchange Act (15
U.S.C. Sections 78j(b) and 78t(a)) and Rule 10b-5 promulgated
thereunder by the Securities and Exchange Commissioner (SEC) (17
C.F.R. Section 240.10b-5).
The Amended Complaint alleges that Lexin, through its subsidiaries,
purports to operate as an online consumer finance platform for
young professionals in the People's Republic of China. Lexin
operates Fenqile.com, a retail and online consumer finance platform
that offers installment purchase loans, personal installment loans,
and other loan products, as well as provides online direct sales
with installment payment terms. Lexin also matches consumer loans
with diversified funding sources, including individual investors on
its Juzi Licai online investment platform and licensed financial
institutions. its securities trade on the NASDAQ exchange under the
ticker symbol "LX." Id. The Individual Defendants are or were
officers or directors of Lexin during the Class Period.
On Nov. 13, 2017, Lexin filed with the SEC a registration statement
on Form F-1 for the IPO, which, after an amendment, was declared
effective on Dec. 20, 2017. On Dec. 21, 2017, Lexin filed a
prospectus for the IPO on Form 424B4, which incorporated and formed
part of the registration statemen. The Offering Materials were used
to sell to the investing public approximately 12 million Lexin
American depository shares (ADSs),2 at $9 per ADS.
On Aug. 25, 2020, Grizzly Research published a report describing a
number of issues that it identified with Lexin's business
practices. Specifically, the Grizzly report claimed that, among
other things, Lexin: (i) reports artificially low delinquency
rates; (ii) issued loans with usurious interest rates, (iii) used
harassment to collect on outstanding loans, (iv) conducted
undisclosed related party transactions, and (v) was still
conducting direct peer-to-peer lending despite claiming otherwise.
The day that the Grizzly report was released, Lexin's ADSs fell
$0.47 per share, or 5.52%, to close at $8.04 per share on Aug. 25,
2020.
The Plaintiffs are investors in Lexin, who allege that Lexin's
Offering Materials were negligently prepared and, as a result,
contained untrue statements of material fact or omitted to state
other facts necessary to make the statements made not misleading
and were not prepared in accordance with the rules and regulations
governing its preparation. They additionally allege that,
throughout the Class Period, the Defendants made materially false
and misleading statements regarding Lexin's business, operational,
and compliance policies.
Before the Court is Defendant Lexin's Motion to Dismiss. Lexin
alleges that the Plaintiffs fail to state a claim under both
Section 10(b) of the Exchange Act and Section 11 of the Securities
Act. Also before the Court is Defendant Lexin's request for
judicial notice.
Analysis
A. Request for Incorporation by Reference and Judicial Notice
Lexin requests that the Court takes judicial notice of six
exhibits: (1) the Grizzly report, (2) a copy of Lexin's ADS stock
price data from August 24, 2020, to March 19, 2021, (3) excerpts of
Lexin's 2019 Form 20-F Annual Report, (4) excerpts of Lexin's 2018
Form 20-F Annual Report, (5) excerpts of Lexin's 2017 Form 20-F
Annual Report, and (6) excerpts of Lexin's Form F-1 Registration
Statement (all attached at ECF 36). It argues that each of these
exhibits may be considered by the Court because each either is
incorporated by reference in the Amended Complaint or is subject to
judicial notice under Rule 201 of the Federal Rules of Evidence.
The Plaintiffs do not specifically oppose Lexin's request.
Additionally, they submit similar materials, including different
excerpts of the same SEC filings, although the Plaintiffs do not
specifically request that the Court take judicial notice of those
materials. Those materials include excerpts of Lexin's 2017, 2018,
and 2019 Form 20-F Annual Reports, the same documents from which
different excerpts were submitted by Lexin, and the executed
Sarbanes-Oxley Act (SOX) Certification by Principal Executive
Officer for those same Forms 20-F.
First, because virtually all of Lexin's factual allegations are
based on information from the Grizzly report, Judge Simon finds it
appropriate to take judicial notice of the existence and contents
of the Grizzly report, but not the truth of its contents. Second,
there does not appear to be any dispute as to the accuracy of the
historic stock prices for which Lexin advocates judicial notice
and, given the nature of the Plaintiffs' claims, Judge Simon finds
it appropriate to take judicial notice of a copy of Lexin's stock
price data during a specific date range (Exhibit 2). Lastly, Judge
Simon finds that the various excerpts of Lexin's Forms 20-F
contained in Exhibits 3-6 are incorporated by reference in the
Amended Complaint.
B. Section 10(b) Claims
The Defendants argue that the Plaintiffs fail to allege a material
misrepresentation or omission, scienter, and loss causation.
1. Alleged Misrepresentations and Omissions
To state a claim under either Section 10(b) or Rule 10b-5, a
plaintiff must plead with particularity that a defendant has made a
material misrepresentation or omission, and such allegations are
subject to the heightened pleading standards of both Rule 9(b) and
the PSLRA. The Plaintiffs allege generally that the Defendants made
material misstatements or omissions regarding the following five
topics: a) growth metrics, b) usury and harassment, c)
related-party transactions, d) delinquency rates, and e)
peer-to-peer lending. Judge Simon finds that the Plaintiffs have
not alleged any of the purported misstatements or omissions with
sufficient particularity to state a claim under Section 10(b).
2. Scienter
In evaluating scienter, courts must look at the complaint in its
totality and not just the individual allegations of scienter.
First, Judge Simon holds that the Plaintiffs have not, for the most
part, made specific scienter allegations with respect to each
individual alleged misstatement. Rather, they allege generally that
"by virtue of their positions at Lexin, the Defendants had actual
knowledge of the materially false and misleading statements and
material omissions alleged herein" or, alternatively, that the
Defendants "acted with reckless disregard for the truth in that
they failed or refused to ascertain and disclose such facts as
would reveal the materially false and misleading nature of the
statements made, although such facts were readily available to"
them. Those general, non-specific allegations do not give rise to a
strong inference of scienter that is "as compelling as any opposing
inference of nonfraudulent intent."
Second, the Amended Complaint does not include particularized
allegations that representations made in SOX certifications or GAAP
violations give rise to inferences of scienter -- the Plaintiffs
make those assertions for the first time in their Response to the
Motion to Dismiss. This is insufficient to state a claim for
relief.
Third, Judge Simon opines that even if the Plaintiffs had
adequately alleged in the Amended Complaint that the SOX
certifications contained misrepresentations and that
representations in SOX certifications gave rise to an inference of
scienter, the Ninth Circuit, has previously rejected that argument.
Similarly, even if the Plaintiffs had adequately alleged in the
Amended Complaint that Defendants violated GAAP with respect to
alleged related-party "transactions" and that such violations give
rise to an inference of scienter, the Ninth Circuit has also
rejected that argument. The Plaintiffs do not make any
distinguishing arguments on either point. Neither alleged
misrepresentations in SOX certifications nor GAAP violations are
sufficient, standing alone, to give rise to an inference of
scienter and so the Plaintiffs' newly-raised contentions, even if
contained in the Amended Complaint, would be insufficient to show
scienter.
Finally, with respect to the remaining alleged misrepresentations,
Judge Simon holds that the Plaintiffs have not pleaded sufficient
facts to avail themselves of either exception to the general rule
that a management position alone is insufficient to establish
scienter. Notwithstanding his conclusion that the Plaintiffs have
not met the required pleading standard with regard to any of the
alleged misstatements, Judge Simon finds that none of those
misstatements are so clearly false or so integral to the company's
functioning that an inference of scienter is appropriate.
3. Loss Causation
The Plaintiffs allege that the Grizzly report constitutes a
"corrective disclosure" which "revealed new information to the
market that has not yet been incorporated into the price," causing
a decline in Lexin's stock price. Judge Simon concludes that even
if the Grizzly report revealed new information that the market had
not previously taken into account, it is not plausible that
investors would perceive the Grizzly report as revealing the
falsity of statements by Lexin and its officers and directors. The
Plaintiffs have not alleged sufficient facts that would allow the
Court to conclude otherwise.
C. Section 11 Claims
Section 11 of the Securities Act, 15 U.S.C. Section 77k, "gives
purchasers of securities a right of action against an issuer or
designated individuals, including securities underwriters, for any
material misstatements or omissions in a registration statement."
To prevail in a Section 11 action, "a plaintiff must prove '(1)
that the registration statement contained an omission or
misrepresentation, and (2) that the omission or misrepresentation
was material, that is, it would have misled a reasonable investor
about the nature of his or her investment.'"
Judge Simon opines that the Plaintiffs' Section 11 claims are not
barred by the statute of repose and turns now to the merits of
those claims. He also finds that the Plaintiffs have not adequately
alleged that the Offering Materials issued pursuant to Lexin's IPO
were materially false or misleading.
D. Sections 15 and 20(a) Claims
Section 15 of the Securities Act and Section 20(a) of the Exchange
Act permit causes of action against certain individuals based on
violations of Section 11 of the Securities Act and Section 10(b) of
the Exchange Act, respectively. In its Motion to Dismiss, Defendant
Lexin notes that, to the best of its knowledge, the remaining
Defendants -- individuals Xiao, Zeng, Chen, Shao, and Wu -- all
live in China, have not been served with the Amended Complaint, and
are not represented by counsel. Lexin clarifies that it brought the
Motion to Dismiss on behalf of itself only but that because, in its
view, the Amended Complaint fails to state a claim under either
Section 11 of the Securities Act or Section 10(b) of the Exchange
Act, the Plaintiffs' Section 15 and Section 20(a) claims must fail
as well.
In their response to the Motion to Dismiss, the Plaintiffs state
that they are still attempting to serve the Individual Defendants,
but do not respond to the Defendants' contention that, if their
Section 11 and Section 10(b) claims fail, then their Section 15 and
Section 20(a) claims necessarily do as well.
Judge Simon opines that Lexin is correct that claims under both
Section 15 and Section 20(a) require an underlying primary
violation of the securities laws. He says, the Plaintiffs offer no
other response than that they are attempting to serve the
individual defendants. Thus, the Plaintiffs concede any argument
that their Section 15 and Section 20 claims would not fail were
their Section 11 and Section 10(b) claims dismissed. Based on the
foregoing conclusions that the Plaintiffs' Section 10(b) and
Section 11 claims must be dismissed, Judge Simon also concludes
that the Plaintiffs' Section 15 and Section 20(a) claims will be
dismissed as well.
Conclusion
Judge Simon granted Defendant Lexin's Request for Incorporation by
Reference and Judicial Notice. He also granted without prejudice
Defendant Lexin's Motion to Dismiss. The Plaintiffs may file an
amended complaint within 30 days from the date of the Opinion and
Order if the Plaintiffs believe they can cure the deficiencies
identified therein.
A full-text copy of the Court's Nov. 24, 2021 Opinion & Order is
available at https://tinyurl.com/yckz92h5 from Leagle.com.
Jeffrey S. Ratliff -- rgmrl500@gmail.com -- RANSOM, GILBERTSON,
MARTIN, & RATLIFF, 5441 South Macadam Avenue, Suite 301, Portland,
OR 97239; Phillip Kim -- pkim@rosenlegal.com -- THE ROSEN LAW FIRM
PA, 275 Madison Avenue, 40th Floor, New York, NY 10016; Jeremy Alan
Lieberman -- jalieberman@pomlaw.com -- Joseph Alexander Hood, II --
ahood@pomlaw.com -- and Tamar A. Weinrib, POMERANTZ LLP, 600 Third
Avenue, 20th Floor, in New York, NY 10016, Of Attorneys for the
Plaintiffs.
Kasonni Marie Scales -- kasonni.scales@skadden.com -- Peter B.
Morrison -- peter.morrison@skadden.com -- and Virginia F. Milstead
-- virginia.milstead@skadden.com -- SKADDEN, ARPS, SLATE, MEAGHER
AND FLOM LLP, 300 South Grand Avenue, Suite 3400, in Los Angeles,
California 90071; Milo Petranovich, LANE POWELL PC, 601 SW Second
Avenue, Suite 2100, Portland, OR 97204; Peter D. Hawkes, ANGELI LAW
GROUP LLC, 121 SW Morrison St., Suite 400, in Portland, Oregon
97204, Of Attorneys for Defendant LexinFintech.
LIGHTNING EMOTORS: Cohen Sues Over Alleged Stock Price Drop
-----------------------------------------------------------
JUSTIN COHEN, Individually and On Behalf of All Others Similarly
Situated v. LIGHTNING EMOTORS, INC., TIMOTHY R. REESER, TERESA P.
COVINGTON, GIGACQUISITIONS3, LLC, GIGCAPITAL GLOBAL, AVI S. KATZ,
RALUCA DINU, and GIGFOUNDERS, LLC, Case No. 1:21-cv-03215 (D.
Colo., Dec. 1, 2021) is a federal securities class action brought
on behalf of all purchasers of Lightning eMotors securities (the
"Class") between December 10, 2020 and August 16, 2021, inclusive
(the "Class Period"), seeking to pursue remedies under the
Securities Exchange Act of 1934.
Lightning eMotors began as GigCapital3, a blank check company
formed by the Blank Check Sponsor Defendants. A blank check company
is sometimes referred to as a special purpose acquisition vehicle,
or "SPAC," and does not initially have any operations or business
of its own. Rather, it raises money from investors in an initial
public offering and then uses the proceeds from the offering to
acquire a business or operational assets, usually from a private
company that does not publicly report financial or operating
results. As a result, investors in blank check companies rely on
the skill, transparency and honesty of the blank check company's
sponsor to spend the offering proceeds to acquire a fundamentally
sound target company that offers attractive risk-adjusted returns
for investors.
On or about May 18, 2020, GigCapital3 completed its initial public
offering, selling 20 million ownership units to investors at $10
per unit for gross proceeds of $200 million (the "IPO"). Each unit
consisted of one share of common stock and three-fourths of one
redeemable warrant. The IPO was sponsored by defendant
GigAcquisitions3, a strategic advisory firm owned and controlled by
defendant Katz, which in turn was managed by defendant GigCapital
Global, an investment advisory group controlled by defendants Katz
and Dinu.
While GigCapital3 did not identify any target companies at the time
of the IPO, the IPO offering materials stated that the Company
planned to pursue an acquisition focused in the technology, media
and telecommunications ("TMT") industry.
The IPO offering materials claimed that GigCapital3's "management
team's distinctive background and record of acquisition and
operational success could have a significant impact on target
businesses," and the management team's "significant hands-on
experience helping TMT companies" would "optimize their existing
and new growth initiatives." The IPO offering materials also stated
that, utilizing the management team's "extensive experience" and
"network of contacts," would "enhance stockholder value."
On November 15, 2021, Lightning eMotors issued a release announcing
the Company's financial results for the third quarter ended
September 30, 2021. The release stated that Lightning eMotors had
generated only $16.8 million in revenue for the first nine months
of the year and was on track to generate only $4 million to $6
million more in revenue during the fourth quarter. Thus, even
assuming the best case revenue scenario, Lightning eMotors would
generate only 36% of the revenues purportedly "under firm purchase
orders" prior to the Merger.
The Company's net loss for the first nine months of the year
totaled $123 million, nearly five times more than during the
corresponding period in 2020.
As of market close on November 22, 2021, the price of Lightning
eMotors remained below $8 per share, over 50% below the Class
Period high. As a result of the decline in the price of Lightning
eMotors stock, investors have suffered millions of dollars in
losses, says the suit.
The Plaintiff purchased Lightning eMotors securities during the
Class Period and has been damaged thereby.
Lightning eMotors is an electric vehicle designer and manufacturer,
providing complete electrification solutions for commercial fleets.
Lightning eMotors common stock and warrants trade on the NYSE under
the ticker symbol "ZEV" and "ZEV.WS," respectively. Prior to the
Merger, Lightning eMotors was named GigCapital3, Inc.
("GigCapital3"), and its stock, warrants and ownership units traded
under the symbols "GIK," "GIK.WS," and "GIK.U," respectively. The
Individual Defendants are officers of the company.[BN]
The Plaintiff is represented by:
Jeffrey A. Berens, Esq.
Michael I. Fistel, Esq.
JOHNSON FISTEL, LLP
2373 Central Park Boulevard, Suite 100
Denver, CO 80238-2300
Telephone: (303) 861-1764
Facsimile: (303) 861-1764
E-mail: jeffb@johnsonfistel.com
michaelf@johnsonfistel.com
LOWE'S COMPANIES: Class Cert. Reply Deadlines in FLSA Suit Amended
------------------------------------------------------------------
In the class action lawsuit Re: Lowe's Companies, Inc., Fair Labor
Standards Act (FLSA) and Wage and Hour Litigation, Case No.
5:20-md-02947 (W.D.N.C.), the Hon. Judge Judge David S. Cayer
entered an order on Motion to amend/correct class certification
deadlines as follows:
-- All class certification reply briefs or brief(s) in
opposition to decertificaton due by March 4, 2022 limited
to 23 pages total.
-- Daubert replies due by March 4, 2022 and limited to 8
pages.
The suit alleges violation of the FLSA.
Lowe's Companies, Inc., often shortened to Lowe's, is an American
retail company specializing in home improvement. Headquartered in
Mooresville, North Carolina, the company operates a chain of retail
stores in the United States.[CC]
M2 MANAGEMENT: Laborers Slam Misclassification, Seek Overtime Pay
-----------------------------------------------------------------
Dwight McDonald, Christopher Atkins and Timothy Provost,
individually and on behalf of all others similarly situated, v. M2
Management, Inc. and Michael P. Trainor, Defendant, Case No.
21-cv-06260, (N.D. Ill., November 22, 2021) seeks declaratory
judgment, monetary damages, liquidated damages, costs and a
reasonable attorneys' fees, as a result of failure to pay
sufficient overtime wages under the Fair Labor Standards Act and
overtime provisions of the Illinois Minimum Wage Law.
Defendants own and operate an industrial and commercial project
management and consulting corporation where it employed McDonald as
a foreman, and Atkins and Provost as an industrial painters. They
claim to have been allegedly misclassified as exempt from overtime,
despite regularly working more than 40 hours per week. They also
claim to be unpaid for their final weeks of work prior to
termination. [BN]
Plaintiff is represented by:
Josh Sanford, Esq.
Colby Qualls, Esq.
SANFORD LAW FIRM, PLLC
Kirkpatrick Plaza
10800 Financial Centre Pkwy., Suite 510
Little Rock, AR 72211
Telephone: (501) 221-0088
Facsimile: (888) 787-2040
Email: josh@sanfordlawfirm.com
colby@sanfordlawfirm.com
MAGELLAN HEALTHCARE: Civil Rights Suit Removed to N.D. Illinois
---------------------------------------------------------------
The case styled M.F., on behalf of P.L. and R.L., a minor, and S.D.
and D.D., individually and on behalf of all others similarly
situated v. MAGELLAN HEALTHCARE, INC., Case No. 1:20-cv-3928, was
removed from the Circuit Court of Cook County, Illinois, County
Department, to the U.S. District Court for the Northern District of
Illinois on December 1, 2021.
The Clerk of Court for the Northern District of Illinois assigned
Case No. 1:21-cv-06433 to the proceeding.
The case arises from the Defendant's alleged violation of the
Plaintiffs' constitutional rights to due process under Title 42 of
the U.S. Code Section 1983 as well as their rights under federal
and state mental health parity laws by denying coverage for certain
behavioral health treatment provided to D.D. and R.L. on the basis
that such treatment was not medically necessary as required by the
Illinois Plan.
Magellan Healthcare, Inc. is a provider of behavioral health and
health management services, with its principal place of business in
Maryland. [BN]
The Defendant is represented by:
Dan J. Hofmeister, Jr., Esq.
Rebecca R. Hanson, Esq.
Timothy R. Carwinski, Esq.
REED SMITH LLP
10 S. Wacker Dr., 40th Floor
Chicago, IL 60606
Telephone: (312) 207-1000
Facsimile: (312) 207-6400
- and –
Lee E. Bains, Jr., Esq.
John David Collins, Esq.
Joshua R. Hess, Esq.
MAYNARD COOPER & GALE, P.C.
1901 Sixth Ave. North, Suite 1700
Birmingham, AL 35203
Telephone: (205) 254-1000
Facsimile: (205) 254-1999
MASON COMPANIES: LeCompte Files Suit in W.D. Wisconsin
------------------------------------------------------
A class action lawsuit has been filed against Mason Companies, Inc.
The case is styled as Connie LeCompte, individually and on behalf
of all others similarly situated v. Mason Companies, Inc., Case No.
3:21-cv-00747 (W.D. Wis., Nov. 29, 2021).
The nature if suit is stated as Other P.I. for Personal Injury.
Mason Companies -- https://www.masoncompaniesinc.com/ -- is an
Internet Retailer e-commerce and catalog company.[BN]
The Plaintiff is represented by:
Arun G. Ravindran, Esq.
Frank Hedin, Esq.
HEDIN HALL LLP
1395 Brickell Ave., Suite 1140
Miami, FL 33131
Phone: (305) 357-2107
Fax: (305) 200-8801
Email: fhedin@hedinhall.com
MASON COMPANIES: Lloyd Files Suit in W.D. Wisconsin
---------------------------------------------------
A class action lawsuit has been filed against Mason Companies, Inc.
The case is styled as Carol Lloyd, individually and on behalf of
all others similarly situated v. Mason Companies, Inc., Case No.
3:21-cv-00748 (W.D. Wis., Nov. 29, 2021).
The nature if suit is stated as Other P.I. for Personal Injury.
Mason Companies -- https://www.masoncompaniesinc.com/ -- is an
Internet Retailer e-commerce and catalog company.[BN]
The Plaintiff is represented by:
Arun G. Ravindran, Esq.
Frank Hedin, Esq.
HEDIN HALL LLP
1395 Brickell Ave., Suite 1140
Miami, FL 33131
Phone: (305) 357-2107
Fax: (305) 200-8801
Email: fhedin@hedinhall.com
MASON COMPANIES: Ross Files Suit in W.D. Wisconsin
--------------------------------------------------
A class action lawsuit has been filed against Mason Companies, Inc.
The case is styled as Franklin Ross, individually and on behalf of
all others similarly situated v. Mason Companies, Inc., Case No.
3:21-cv-00749 (W.D. Wis., Nov. 29, 2021).
The nature if suit is stated as Other P.I. for Personal Injury.
Mason Companies -- https://www.masoncompaniesinc.com/ -- is an
Internet Retailer e-commerce and catalog company.[BN]
The Plaintiff is represented by:
Arun G. Ravindran, Esq.
Frank Hedin, Esq.
HEDIN HALL LLP
1395 Brickell Ave., Suite 1140
Miami, FL 33131
Phone: (305) 357-2107
Fax: (305) 200-8801
Email: fhedin@hedinhall.com
MASON COMPANIES: Stevens Files Suit in W.D. Wisconsin
-----------------------------------------------------
A class action lawsuit has been filed against Mason Companies, Inc.
The case is styled as Sherry Stevens, individually and on behalf of
all others similarly situated v. Mason Companies, Inc., Case No.
3:21-cv-00750 (W.D. Wis., Nov. 29, 2021).
The nature if suit is stated as Other P.I. for Personal Injury.
Mason Companies -- https://www.masoncompaniesinc.com/ -- is an
Internet Retailer e-commerce and catalog company.[BN]
The Plaintiff is represented by:
Arun G. Ravindran, Esq.
Frank Hedin, Esq.
HEDIN HALL LLP
1395 Brickell Ave., Suite 1140
Miami, FL 33131
Phone: (305) 357-2107
Fax: (305) 200-8801
Email: fhedin@hedinhall.com
MASON COMPANIES: Tanenbaum Files Suit in W.D. Wisconsin
-------------------------------------------------------
A class action lawsuit has been filed against Mason Companies, Inc.
The case is styled as Ruth Tanenbaum, individually and on behalf of
all others similarly situated v. Mason Companies, Inc., Case No.
3:21-cv-00751 (W.D. Wis., Nov. 29, 2021).
The nature if suit is stated as Other P.I. for Personal Injury.
Mason Companies -- https://www.masoncompaniesinc.com/ -- is an
Internet Retailer e-commerce and catalog company.[BN]
The Plaintiff is represented by:
Arun G. Ravindran, Esq.
Frank Hedin, Esq.
HEDIN HALL LLP
1395 Brickell Ave., Suite 1140
Miami, FL 33131
Phone: (305) 357-2107
Fax: (305) 200-8801
Email: fhedin@hedinhall.com
MASTERCARD INC: Sells Cardholders' Personal Info, Rivera Alleges
----------------------------------------------------------------
PEDRO CARO RIVERA, individually and on behalf of all others
similarly situated, Plaintiff v. MASTERCARD INC., Defendant, Case
No. 7:21-cv-10181 (S.D.N.Y., November 30, 2021) is a class action
against the Defendant for violation of Puerto Rico's Right of
Publicity Act.
The case arises from the Defendant's practice of selling and
renting mailing lists containing the Plaintiff's and all of its
other customers' names, addresses, and other personal identifying
transactional data on the open market to data miners, data
aggregators, data appenders, data cooperatives, list brokers,
aggressive marketing companies, and various other parties
interested in purchasing them. MasterCard's action of monetizing
its customers' names and likenesses for commercial purposes without
their consent is not only unlawful, but also dangerous because it
allows any member of the public willing to purchase or rent this
data to target particular customers, alleges the suit.
MasterCard Inc. is an American multinational financial services
corporation, headquartered in Purchase, New York. [BN]
The Plaintiff is represented by:
Arun G. Ravindran, Esq.
Frank S. Hedin, Esq.
HEDIN HALL LLP
1395 Brickell Avenue, Suite 1140
Miami, FL 33131
Telephone: (305) 357-2107
Facsimile: (305) 200-8801
E-mail: aravindran@hedinhall.com
fhedin@hedinhall.com
- and –
Thomas L. Laughlin, IV, Esq.
Jonathan M. Zimmerman, Esq.
SCOTT+SCOTT ATTORNEYS AT LAW LLP
The Helmsley Building
230 Park Avenue, 17th Floor
New York, NY 10169
Telephone: (212) 223-6444
Facsimile: (212) 223-6334
E-mail: tlaughlin@scott-scott.com
jzimmerman@scott-scott.com
MATILDA GOURMET: Faces Ortega Wage-and-Hour Suit in S.D.N.Y.
------------------------------------------------------------
MARCO ANTONIO ORTEGA, individually and on behalf of all others
similarly situated, Plaintiff v. THE MATILDA GOURMET DELI INC. (DBA
GREEN GOURMET DELI), DE REIMER FOOD CORP. (DBA DE REIMER GOURMET
DELI & GRILL), NEREID GOURMET DELI INC., GREEN ARROW GOURMET DELI
CORP., OMAR TAREB, SAM TAREB and MOIMER MALIK MOHAMMED TAREB,
Defendants, Case No. 1:21-cv-10212 (S.D.N.Y., December 1, 2021) is
a class action against the Defendants for violations of the Fair
Labor Standards Act and the New York Labor Law including failure to
pay minimum wages, failure to pay overtime wages, failure to pay
spread-of-hours compensation, failure to comply with recordkeeping
requirements, and failure to provide accurate wage statements.
The Plaintiff was employed by the Defendants as a kitchen staff at
Green Gourmet Deli and De Reimer Gourmet Deli & Grill in Bronx, New
York from December 1, 2014 until November 12, 2021.
The Matilda Gourmet Deli Inc. is an owner and operator of a deli
under the name Green Gourmet Deli, located at 638 Nereid Ave.,
Bronx, New York.
De Reimer Food Corp. is an owner and operator of a deli under the
name De Reimer Gourmet Deli & Grill, located at 3821 Boston Rd.,
Bronx, New York.
Nereid Gourmet Deli Inc. is a deli owner and operator located in
Bronx, New York.
Green Arrow Gourmet Deli Corp. is a deli owner and operator located
in Bronx, New York. [BN]
The Plaintiff is represented by:
Lina F. Stillman, Esq.
STILLMAN LEGAL PC
42 Broadway, 12th Floor
New York, NY 10004
Telephone: (800) 933-5620
MATTHEW DUTCAVICH: Extension to File Class Cert Bid Sought
----------------------------------------------------------
In the class action lawsuit captioned as Murray v. Dutcavich, et
al., Case No. 7:17-cv-09121-PMH (S.D.N.Y.), the Parties ask the
Court to enter an order granting their request to extend the
deadlines as follows:
Deadline Current Proposed
Date Date
-- To Serve Rule 56.1 Statement, Dec 3, 2021 Jan. 18, 2022
Pursuant to Individual
Practice Rule 4.E
-- For Plaintiff to Respond to Dec. 20, 2021 Feb. 7, 2022
the Rule 56.1 Statement,
Pursuant to Rule 4.E.iv.
-- To file the Pre-Motion Dec. 22, 2021 Feb. 9, 2022
Conference Letter and
56.1 Statement via ECF
-- For Plaintiff to Respond Dec. 27, 2021 Feb. 14, 2022
-- To Move for Class Dec. 3, 2021 Jan. 7, 2022
Certification
-- To Oppose any Class Dec. 17, 2021 Jan. 28, 2022
Certification Motion
-- To File a Reply Dec. 24, 2021 Feb. 4, 2022
A copy of the Parties' motion dated Dec. 1, 2021 is available from
PacerMonitor.com at https://bit.ly/3ltYNBA at no extra charge.[CC]
The Plaintiff is represented by:
Garrett Kaske, Esq.
KESSLER MATURA P.C.
Telephone: (888) 605-0371
Facsimile: (631) 499-9120
MCCAFFREE-SHORT TITLE: FLSA Settlement in Craven Suit Approved
--------------------------------------------------------------
In the case, DIANA KAY CRAVEN, ET AL., Plaintiffs v.
McCAFFREE-SHORT TITLE COMPANY, INC., ET AL., Defendants, Case No.
2:21-cv-02003-TC-GEB (D. Kan.), Judge Toby Crouse of the U.S.
District Court for the District of Kansas approved the parties'
Joint Motion to Approve FLSA Settlement.
Introduction
Plaintiffs Diana Kay Craven and Debra Hutson brought a collective
action suit against their employer McCaffree-Short and one of its
directors, Carl McCaffree, for failure to pay overtime wages in
violation of the Fair Labor Standards Act (FLSA), 29 U.S.C. Section
201, et seq. The parties entered into a settlement agreement. By
joint motion, Doc. 30, they seek approval of that agreement.
Background
Plaintiffs Craven and Hutson worked for McCaffree-Short, providing
escrow services. They worked about 50 to 60 hours per week and
received a salary. Both allege that the Company misclassified them
as exempt from the FLSA's overtime requirements. As a result, the
Company failed to pay them overtime wages for their hours worked
above 40 each week. The Plaintiffs also allege that Defendant Carl
McCaffree is individually liable under the FLSA. The Defendants
deny these claims. Although the Plaintiffs originally brought suit
on behalf of themselves and similarly situated employees, they have
now elected to proceed only on their individual claims. After a
status conference and settlement negotiations, the parties filed a
Joint Notice of Settlement for Plaintiffs' individual claims. Two
months later, they moved to approve the settlement.
Discussion
When employees sue their employer to recover wages under the FLSA,
the parties must present any proposed settlement to the district
court for review and a determination of whether the settlement is
fair and reasonable. Requiring court approval of FLSA settlements
furthers the statute's purpose of "protecting certain groups from
substandard wages due to the unequal bargaining power" between
employers and employee. To approve an FLSA settlement, the district
court must find that the litigation involves a bona fide dispute
and that the proposed settlement is fair and equitable to all
parties. Also, any attorney's fees must be reasonable.
In the case, Judge Crouse will approve the settlement agreement.
First, he finds that the parties' pleading establishes that there
is a bona fide dispute about whether the Company owed Craven and
Hutson overtime wages under the FLSA. As a threshold matter, the
parties dispute whether the Plaintiffs' job duties were exempt from
overtime requirements. On the other hand, the Defendants claim that
the overtime requirements do not apply because the Plaintiffs
"performed the duties of an exempt executive, administrative,
and/or professional employee." They also claim that the Plaintiffs
did exercise independent judgment as to matters of significance,
including being asked to provide input on hiring and firing. Even
if the Plaintiffs were not exempt under the FLSA and were therefore
owed overtime wages, the parties dispute the amount of damages.
Finally, the parties dispute whether the Plaintiffs are entitled to
liquidated damages. All told, there remain serious questions of law
and fact about whether the Plaintiffs are owed overtime wages.
Next, Judge Crouse finds that the parties have also sufficiently
established that the settlement terms are fair and equitable. The
parties reached agreement only after engaging in the procedures in
the Court's Scheduling Order, including that the parties "meet and
confer in a good faith effort to settle all pending issues." For
relief, the settlement provides the Plaintiffs with reasonable
compensation in light of the damages sought and the time and
expense of uncertain litigation. The settlement provides
significant compensation relative to the amount in controversy. As
for other concerns, there is no indication that the proposed
settlement would thwart the purposes of the FLSA. Nor is there
anything in the record to suggest a history of non-compliance by
the Defendants or to raise concerns of recurrence. Nor does the
settlement purport to resolve other current or former employees'
claims against the Defendants. Thus, the settlement is fair and
equitable.
Lastly, Judge Crouse finds that the parties have sufficiently
established that the attorney's fees are reasonable in light of the
totality of the litigation. The Plaintiffs' counsel spent 60.7
hours litigating the case, with rates ranging from $90 to $470 per
hour, for a total value of $17,842.50 (plus $570 in costs).
Compared to this "lodestar," the proposed settlement agreement
would provide the counsel with $15,400 for fees and costs. This
represents 44% of the total settlement proceeds, and is consistent
with recent contingency fee settlements for FLSA misclassification
claims. On an hourly basis, the fees come out to an average of
$303.33. The parties allege that this rate is consistent with
prevailing rates in the relevant market. Finally, nothing in the
record indicates a conflict of interest between the counsel and the
Plaintiffs.
Conclusion
For these reasons, Judge Crouse approved the parties' Joint Motion
to Approve FLSA Settlement.
A full-text copy of the Court's Nov. 24, 2021 Memorandum & Order is
available at https://tinyurl.com/rwk5f235 from Leagle.com.
META PLATFORMS: Perez Hits Share Price Drop
-------------------------------------------
Juan Perez, individually and on behalf of all others similarly
situated, Plaintiffs, v. Meta Platforms, Inc., Mark Zuckerberg and
David M. Wehner, Defendants, Case No. 21-cv-09041, (N.D. Cal.,
November 22, 2021), seeks to recover compensable damages caused by
violations of the federal securities laws and to pursue remedies
under the Securities Exchange Act of 1934.
Meta Platforms, Inc. is the world's largest online social network
operating under the name "Facebook," with 3.3 billion monthly
active users. Mark Zuckerberg has been the Chief Executive Officer
while David M. Wehner has been the Chief Financial Officer.
Facebook's family of products encompasses the platforms and
applications called Facebook, Instagram, Messenger, WhatsApp and
Facebook Reality Labs.
Perez alleges that Facebook conducted detailed in-house research
that indicated that it exacerbated negative body image issues for
one in three teenage girl users on Instagram's platform and that
teens in Facebook's research blamed Instagram for increased rates
of anxiety and depression. Facebook allegedly collected up to than
a billion individual facial recognition templates. It touted its
AI's ability to identify and address hate speech, excessive
violence and underage users by implementing an algorithm designed
to heighten "meaningful social interaction" in a manner that stoked
division and discord, allowing known drug cartels, human
traffickers and armed groups to utilize Facebook's platforms to
encourage their violent and illegal activities.
Facebook was trading at approximately $376 per share in September
2021 prior to the publication of this information. By October 27,
2021, Facebook traded at $312, representing a drop of at least $64
a share, equating to a total drop in excess of hundreds of billions
of dollars.
Perez owns Facebook stocks. [BN]
Plaintiff is represented by:
Francis A. Bottini, Jr., Esq.
Albert Y. Chang, Esq.
BOTTINI & BOTTINI, INC.
7817 Ivanhoe Avenue, Suite 102
La Jolla, CA 92037
Telephone: (858) 914-2001
Facsimile: (858) 914-2002
E-mail: fbottini@bottinilaw.com
achang@bottinilaw.com
MICHIGAN: Amended Crawford Complaint v. MDOC, LCF & State Tossed
----------------------------------------------------------------
In the case, KENNETH CRAWFORD, Plaintiff v. GRETCHEN WHITMER et
al., Defendants, Case No. 1:21-cv-529 (W.D. Mich.), Judge Janet T.
Neff of the U.S. District Court for the Western District of
Michigan, Southern Division, dismissed the Plaintiff's amended
complaint for failure to state a claim.
The case is a civil rights action originally brought under 42
U.S.C. Section 1983 by 13 state prisoners housed at the Lakeland
Correctional Facility (LCF). On June 22, 2021, the Court denied the
request for a class action certification and severed the claims of
the 13 prisoner Plaintiffs into separate actions. Each Plaintiff,
including Plaintiff Crawford, was ordered to file an amended
complaint containing only the allegations relevant to that
Plaintiff.
Plaintiff Crawford now has filed an amended complaint, a motion to
amend and/or supplement the complaint, and a second amended
complaint. Under the Prison Litigation Reform Act, Pub. L. No.
104-134, 110 Stat. 1321 (1996) (PLRA), the Court is required to
dismiss any prisoner action brought under federal law if the
complaint is frivolous, malicious, fails to state a claim upon
which relief can be granted, or seeks monetary relief from a
defendant immune from such relief. The Court must read the
Plaintiff's pro se complaint indulgently, and accept the
Plaintiff's allegations as true, unless they are clearly irrational
or wholly incredible.
The Plaintiff is presently incarcerated with the Michigan
Department of Corrections (MDOC) at the Lakeland Correctional
Facility (LCF) in Coldwater, Branch County, Michigan. The events
about which he complains occurred at that facility, as well as at
the Muskegon Correctional Facility (MCF) in Muskegon, Muskegon
County, Michigan, which is where the Plaintiff was incarcerated
prior to being housed at LCF.
The Plaintiff sues Governor Gretchen Whitmer, MDOC Director Heidi
E. Washington, Warden Bryant Morrison, Deputy Warden Robert Ault,
Acting Administrative Assistant Janet Traore, Doctor Margaret
Quellete, Medical Provider E. Coe Hill, Registered Nurse Lori Blue,
Law Librarian Linda Thompson, Resident Unit Manager Timothy Shaw,
Resident Unit Manager Scott Cline, Corrections Officer Unknown
Part(y)(ies), and Corrections Officer Unknown Minor. He also names
Prisoner Counselors Karen Kowalski, Shawanda Cope, Patrick Daniels,
Kevin Dirchell, and Dennis Randall.
In his amended complaint, the Plaintiff alleges that in March 2020,
COVID-19 infections at LCF were rampant and the Defendants failed
to adequately protect inmates, including him, from infection. The
Plaintiff states that he became infected and suffered from
coughing, sneezing, diarrhea, fever, headaches, shortness of
breath, and chest pain. He also claims that he has not received any
testing to determine the extent of the damage caused to his body by
COVID-19.
The Plaintiff claims that from the beginning of the pandemic, the
Defendants failed to institute a true quarantine, and infected
staff members were free to move in and out of facilities, placing
prisoners in imminent danger of becoming infected. He asserts that
each of the named Defendants knew or should have known of the
imminent danger posed to the Plaintiff and other prisoners by
COVID-19, but failed to act in accordance with their duties to
protect him from the virus, or to ensure that he could access the
appropriate process to gain early release from prison.
In the Plaintiff's second amended complaint, he names each of the
Defendants previously named in his first amended complaint with the
exception of Prisoner Counselor Dennis Randall, who is no longer a
Defendant in the case. He also asserts additional factual
allegations regarding his experience with COVID-19.
In his motion to amend and supplement pleadings, the Plaintiff
seeks to add new Defendants to his action. His motion names Deputy
Warden Troy Chrisman, Kirsten Losinski, Counselor Markiyroe
Garrett, Business/Mailroom Manager Sue Middlestadt, Mailroom
Employees Christine Boden and Michael Stevens, Accounting Assistant
Jessica Jones, Lieutenant Christiana Borst, Lieutenant Frank
Sobrieski, and Health Unit Manager Nathan Mikel. However, the
Plaintiff's supplemental pleading is entirely conclusory. Nowhere
in his motion does he allege any specific facts against any of the
individuals he seeks to add to the action.
The Plaintiff appears to be claiming that the Defendants violated
his rights under the Eighth Amendment. He seeks compensatory and
punitive damages, as well as declaratory relief.
Having conducted the review required by the Prison Litigation
Reform Act, Judge Neff determines that the Plaintiff's complaint
will be dismissed for failure to state a claim, under 28 U.S.C.
Sections 1915(e)(2) and 1915A(b), and 42 U.S.C. Section 1997e(c).
She must next decide whether an appeal of the action would be in
good faith within the meaning of 28 U.S.C. Section 1915(a)(3).
Although she concludes that the Plaintiff's claims are properly
dismissed, Judge Neff does not conclude that any issue the
Plaintiff might raise on appeal would be frivolous. Accordingly,
she does not certify that an appeal would not be taken in good
faith. Should the Plaintiff appeal this decision, the Court will
assess the $505 appellate filing fee pursuant to Section
1915(b)(1), unless the Plaintiff is barred from proceeding in forma
pauperis, e.g., by the "three-strikes" rule of Section 1915(g). If
he is barred, he will be required to pay the $505 appellate filing
fee in one lump sum.
It is a dismissal as described by 28 U.S.C. Section 1915(g).
An order and judgment consistent with the opinion will be entered.
A full-text copy of the Court's Nov. 19, 2021 Opinion is available
at https://tinyurl.com/2p9e4j6p from Leagle.com.
MICHIGAN: Court Dismisses Anderson Suit for Failure to State Claim
------------------------------------------------------------------
In the case, MARK ANDERSON, Plaintiff v. GRETCHEN WHITMER et al.,
Defendants, Case No. 1:21-cv-525 (W.D. Mich.), Judge Janet T. Neff
of the U.S. District Court for the Western District of Michigan,
Southern Division, dismissed the Plaintiff's amended complaint for
failure to state a claim.
The case is a civil rights action originally brought under 42
U.S.C. Section 1983 by 13 state prisoners housed at the Lakeland
Correctional Facility (LCF). On June 22, 2021, the Court denied the
request for a class action certification and severed the claims of
the 13 prisoner Plaintiffs into separate actions. Each Plaintiff,
including Plaintiff Anderson, was ordered to file an amended
complaint containing only the allegations relevant to that
Plaintiff.
Plaintiff Anderson now has filed an amended complaint and a
document regarding "Separability of Provisions, Severability of
Defendants, Away from Executives Chief Officers of Government,
State, or Political Division." Under the Prison Litigation Reform
Act, Pub. L. No. 104-134, 110 Stat. 1321 (1996) (PLRA), the Court
is required to dismiss any prisoner action brought under federal
law if the complaint is frivolous, malicious, fails to state a
claim upon which relief can be granted, or seeks monetary relief
from a defendant immune from such relief. The Court must read the
Plaintiff's pro se complaint indulgently, and accept the
Plaintiff's allegations as true, unless they are clearly irrational
or wholly incredible.
The Plaintiff is presently incarcerated with the Michigan
Department of Corrections (MDOC) at the Lakeland Correctional
Facility (LCF) in Coldwater, Branch County, Michigan. The events
about which he complains occurred at that facility.
The Plaintiff sues Governor Gretchen Whitmer, MDOC Director Heidi
E. Washington, Warden Bryant Morrison, Deputy Warden Robert Ault,
Acting Administrative Assistant Janet Traore, Doctor Margaret
Quellete, Medical Provider E. Coe Hill, Registered Nurse Lori Blue,
Law Librarian Linda Thompson, Resident Unit Manager Timothy Shaw,
Resident Unit Manager Scott Cline, Corrections Officer Unknown
Part(y)(ies), and Corrections Officer Unknown Minor. He also names
Prisoner Counselors Karen Kowalski, Shawanda Cope, Patrick Daniels,
Kevin Dirchell, and Dennis Randall.
In his first amended complaint, the Plaintiff alleges that in March
2020, COVID-19 infections at LCF were rampant and the Defendants
failed to adequately protect inmates, including him, from
infection. He states that he became infected and suffered from loss
of taste and smell, loss of appetite, diarrhea, weight loss, fever,
low oxygen levels, and a near death experience due to his inability
to breathe. THe Plaintiff asserts that each of the named Defendants
knew or should have known of the imminent danger posed to the
Plaintiff and other prisoners by COVID-19, but failed to act in
accordance with their duties to protect him from the virus, or to
ensure that he could access the appropriate process to gain early
release from prison.
The Plaintiff claims that from the beginning of the pandemic, the
Defendants failed to institute a true quarantine, and infected
staff members were free to move in and out of facilities, placing
prisoners in imminent danger of becoming infected.
The Plaintiff appears to be claiming that the Defendants violated
his rights under the Eighth Amendment. He seeks compensatory and
punitive damages, as well as injunctive relief.
Having conducted the review required by the Prison Litigation
Reform Act, Judge Neff determines that the Plaintiff's complaint
will be dismissed for failure to state a claim, under 28 U.S.C.
Sections 1915(e)(2) and 1915A(b), and 42 U.S.C. Section 1997e(c).
She must next decide whether an appeal of the action would be in
good faith within the meaning of 28 U.S.C. Section 1915(a)(3).
Although she concludes that the Plaintiff's claims are properly
dismissed, Judge Neff does not conclude that any issue the
Plaintiff might raise on appeal would be frivolous. Accordingly,
she does not certify that an appeal would not be taken in good
faith. Should the Plaintiff appeal this decision, the Court will
assess the $505 appellate filing fee pursuant to Section
1915(b)(1), unless the Plaintiff is barred from proceeding in forma
pauperis, e.g., by the "three-strikes" rule of Section 1915(g). If
he is barred, he will be required to pay the $505 appellate filing
fee in one lump sum.
It is a dismissal as described by 28 U.S.C. Section 1915(g).
An order and judgment consistent with the opinion will be entered.
A full-text copy of the Court's Nov. 19, 2021 Opinion is available
at https://tinyurl.com/v5zzrn9w from Leagle.com.
MICHIGAN: District Court Tosses Jackson's Suit v. MDOC, LCF & State
-------------------------------------------------------------------
In the case, DREMARIS JACKSON, Plaintiff v. GRETCHEN WHITMER, et
al., Defendants, Case No. 1:21-cv-526 (W.D. Mich.), Judge Janet T.
Neff of the U.S. District Court for the Western District of
Michigan, Southern Division, dismissed the Plaintiff's amended
complaint for failure to state a claim.
It is a civil rights action originally brought under 42 U.S.C.
Section 1983 by 13 state prisoners housed at the Lakeland
Correctional Facility (LCF). On June 22, 2021, the Court denied the
request for a class action certification and severed the claims of
the 13 prisoner Plaintiffs into separate actions. Each Plaintiff,
including Plaintiff Jackson, was ordered to file an amended
complaint containing only the allegations relevant to that
Plaintiff.
Plaintiff Jackson now has filed an amended complaint, a motion to
amend and/or supplement the complaint, and a second amended
complaint. Under the Prison Litigation Reform Act, Pub. L. No.
104-134, 110 Stat. 1321 (1996) (PLRA), the Court is required to
dismiss any prisoner action brought under federal law if the
complaint is frivolous, malicious, fails to state a claim upon
which relief can be granted, or seeks monetary relief from a
defendant immune from such relief. The Court must read the
Plaintiff's pro se complaint indulgently, and accept the
Plaintiff's allegations as true, unless they are clearly irrational
or wholly incredible.
The Plaintiff is presently incarcerated with the Michigan
Department of Corrections (MDOC) at the Lakeland Correctional
Facility (LCF) in Coldwater, Branch County, Michigan. The events
about which he complains occurred at that facility. He sues
Governor Gretchen Whitmer, MDOC Director Heidi E. Washington,
Warden Bryant Morrison, Deputy Warden Robert Ault, Acting
Administrative Assistant Janet Traore, Doctor Margaret Quellete,
Medical Provider E. Coe Hill, Registered Nurse Lori Blue, Law
Librarian Linda Thompson, Resident Unit Manager Timothy Shaw,
Resident Unit Manager Scott Cline, Corrections Officer Unknown
Part(y)(ies), and Corrections Officer Unknown Minor. He also names
Prisoner Counselors Karen Kowalski, Shawanda Cope, Patrick Daniels,
Kevin Dirchell, and Dennis Randall.
In his amended complaint, the Plaintiff alleges that in March 2020,
COVID-19 infections at LCF were rampant and the Defendants failed
to adequately protect inmates, including him, from infection. He
asserts that each of the named Defendants knew or should have known
of the imminent danger posed to him and other prisoners by
COVID-19, but failed to act in accordance with their duties to
protect him from the virus, or to ensure that he could access the
appropriate process to gain early release from prison. The
Plaintiff states that the Defendants' conduct caused him to be
exposed to infected prisoners and staff, which ultimately led to
him contracting COVID-19.
In his motion to amend and supplement pleadings, the Plaintiff
seeks to add new Defendants to his action. His motion names Deputy
Warden Troy Chrisman, Kirsten Losinski, Counselor Markiyroe
Garrett, Business/Mailroom Manager Sue Middlestadt, Mailroom
Employees Christine Boden and Michael Stevens, Accounting Assistant
Jessica Jones, Lieutenant Christiana Borst, Lieutenant Frank
Sobrieski, and Health Unit Manager Nathan Mikel. However, the
Plaintiff's supplemental pleading is entirely conclusory. Nowhere
in his motion does he allege any specific facts against any of the
individuals he seeks to add to the action.
The Plaintiff appears to be claiming that the Defendants violated
his rights under the Eighth Amendment. He seeks compensatory and
punitive damages, as well as declaratory relief.
Having conducted the review required by the Prison Litigation
Reform Act, Judge Neff determines that the Plaintiff's complaint
will be dismissed for failure to state a claim, under 28 U.S.C.
Sections 1915(e)(2) and 1915A(b), and 42 U.S.C. Section 1997e(c).
She must next decide whether an appeal of this action would be in
good faith within the meaning of 28 U.S.C. Section 1915(a)(3).
Although she concludes that the Plaintiff's claims are properly
dismissed, Judge Neff does not conclude that any issue the
Plaintiff might raise on appeal would be frivolous. Accordingly,
she does not certify that an appeal would not be taken in good
faith. Should the Plaintiff appeal this decision, the Court will
assess the $505 appellate filing fee pursuant to Section
1915(b)(1), unless the Plaintiff is barred from proceeding in forma
pauperis, e.g., by the "three-strikes" rule of Section 1915(g). If
he is barred, he will be required to pay the $505 appellate filing
fee in one lump sum.
It is a dismissal as described by 28 U.S.C. Section 1915(g).
An order and judgment consistent with the opinion will be entered.
A full-text copy of the Court's Nov. 19, 2021 Opinion is available
at https://tinyurl.com/yckhjnrd from Leagle.com.
MICHIGAN: District Court Tosses Johnson's Suit v. MDOC, LCF & State
-------------------------------------------------------------------
In the case, WILLIAM JOHNSON, Plaintiff v. GRETCHEN WHITMER, et
al., Defendants, Case No. 1:21-cv-532 (W.D. Mich.), Judge Janet T.
Neff of the U.S. District Court for the Western District of
Michigan, Southern Division, dismissed the Plaintiff's amended
complaint for failure to state a claim.
The lawsuit is a civil rights action originally brought under 42
U.S.C. Section 1983 by 13 state prisoners housed at the Lakeland
Correctional Facility (LCF). On June 22, 2021, the Court denied the
request for a class action certification and severed the claims of
the 13 prisoner Plaintiffs into separate actions. Each Plaintiff,
including Plaintiff Johnson, was ordered to file an amended
complaint containing only the allegations relevant to that
Plaintiff.
Plaintiff Johnson now has filed an amended complaint and a motion
to amend and/or supplement the complaint. Under the Prison
Litigation Reform Act, Pub. L. No. 104-134, 110 Stat. 1321 (1996)
(PLRA), the Court is required to dismiss any prisoner action
brought under federal law if the complaint is frivolous, malicious,
fails to state a claim upon which relief can be granted, or seeks
monetary relief from a defendant immune from such relief. The Court
must read the Plaintiff's pro se complaint indulgently, and accept
the Plaintiff's allegations as true, unless they are clearly
irrational or wholly incredible.
The Plaintiff is presently incarcerated with the Michigan
Department of Corrections (MDOC) at the Lakeland Correctional
Facility (LCF) in Coldwater, Branch County, Michigan. The events
about which he complains occurred at that facility.
The Plaintiff sues Governor Gretchen Whitmer, MDOC Director Heidi
E. Washington, Warden Bryant Morrison, Deputy Warden Robert Ault,
Acting Administrative Assistant Janet Traore, Doctor Margaret
Quellete, Medical Provider E. Coe Hill, Registered Nurse Lori Blue,
Law Librarian Linda Thompson, Resident Unit Manager Timothy Shaw,
Resident Unit Manager Scott Cline, Corrections Officer Unknown
Part(y)(ies), and Corrections Officer Unknown Minor. He also names
Prisoner Counselors Karen Kowalski, Shawanda Cope, Patrick Daniels,
Kevin Dirchell, and Dennis Randall.
In his first amended complaint, the Plaintiff alleges that he was
born with bronchial asthma and a host of other respiratory
ailments. He has a long history as a chronic care patient and
should be routinely monitored by medical staff. Despite his status
as a high risk person, he was not monitored when COVID-19 was
spreading through LCF. Around the end of March and beginning of
April, the Plaintiff began to experience headaches and nosebleeds.
Although these were known symptoms of COVID-19, healthcare refused
to see the Plaintiff. Shortly thereafter, the Plaintiff was
administered a COVID-19 test by Unknown Nurse who refused to change
her gloves. On April 23, 2020, the Plaintiff was diagnosed with
COVID-19 and suffered from nosebleeds, fever, diarrhea, headaches,
dizziness, and weakness. The Plaintiff also claims that he has not
received any testing to determine the extent of the damage caused
to his body by COVID-19, nor has he received any mental health
intervention to help him cope with the psychological effects of the
disease.
The Plaintiff states that in March and April 2020, COVID-19
infections at LCF were rampant and Defendants failed to institute a
true quarantine. He asserts that each of the named Defendants knew
or should have known of the imminent danger posed to the Plaintiff
and the other prisoners by COVID-19, but failed to act in
accordance with their duties to protect him from the virus, or to
ensure that he could access the appropriate process to gain early
release from prison.
In his motion to amend and supplement pleadings, the Plaintiff
seeks to add new Defendants to his action. His motion names Deputy
Warden Troy Chrisman, Kirsten Losinski, Counselor Markiyroe
Garrett, Business/Mailroom Manager Sue Middlestadt, Mailroom
Employees Christine Boden and Michael Stevens, Accounting Assistant
Jessica Jones, Lieutenant Christiana Borst, Lieutenant Frank
Sobrieski, and Health Unit Manager Nathan Mikel.
The Plaintiff's motion to amend and/or supplement pleadings also
sets forth additional allegations regarding his experience with
COVID-19 at LCF. The Plaintiff alleges that when COVID-19 began
spreading at LCF, he lived in a dormitory setting with 8i2 other
prisoners. All the prisoners shared the same telephones,
microwaves, kiosks, toilets, and cleaning supplies. The Plaintiff
states that on Jan. 29, 2020, he witnessed the death of prisoner
Malone-Bey. He believes that the cause of death was COVID-19,
although prison officials deny this.
The Plaintiff appears to be claiming that the Defendants violated
his rights under the Eighth Amendment. He seeks compensatory and
punitive damages, as well as declaratory relief.
Having conducted the review required by the Prison Litigation
Reform Act, Judge Neff determines that the Plaintiff's complaint
will be dismissed for failure to state a claim, under 28 U.S.C.
Sections 1915(e)(2) and 1915A(b), and 42 U.S.C. Section 1997e(c).
She must next decide whether an appeal of this action would be in
good faith within the meaning of 28 U.S.C. Section 1915(a)(3).
Although she concludes that the Plaintiff's claims are properly
dismissed, Judge Neff does not conclude that any issue the
Plaintiff might raise on appeal would be frivolous. Accordingly,
she does not certify that an appeal would not be taken in good
faith. Should the Plaintiff appeal this decision, the Court will
assess the $505 appellate filing fee pursuant to Section
1915(b)(1), unless the Plaintiff is barred from proceeding in forma
pauperis, e.g., by the "three-strikes" rule of Section 1915(g). If
he is barred, he will be required to pay the $505 appellate filing
fee in one lump sum.
It is a dismissal as described by 28 U.S.C. Section 1915(g).
An order and judgment consistent with the opinion will be entered.
A full-text copy of the Court's Nov. 24, 2021 Opinion is available
at https://tinyurl.com/2p8cp4cm from Leagle.com.
MICHIGAN: Dulin Prisoners Suit Dismissed for Failure to State Claim
-------------------------------------------------------------------
In the case, DARRYL ARTES DULIN, Plaintiff v. GRETCHEN WHITMER et
al., Defendants, Case No. 1:21-cv-531 (W.D. Mich.), Judge Janet T.
Neff of the U.S. District Court for the Western District of
Michigan, Southern Division, dismissed the Plaintiff's amended
complaint for failure to state a claim.
The lawsuit is a civil rights action originally brought under 42
U.S.C. Section 1983 by 13 state prisoners housed at the Lakeland
Correctional Facility (LCF). On June 22, 2021, the Court denied the
request for a class action certification and severed the claims of
the 13 prisoner Plaintiffs into separate actions. Each Plaintiff,
including Plaintiff Dulin, was ordered to file an amended complaint
containing only the allegations relevant to that Plaintiff.
Plaintiff Dulin now has filed an amended complaint and a motion to
amend and/or supplement the complaint. Under the Prison Litigation
Reform Act, Pub. L. No. 104-134, 110 Stat. 1321 (1996) (PLRA), the
Court is required to dismiss any prisoner action brought under
federal law if the complaint is frivolous, malicious, fails to
state a claim upon which relief can be granted, or seeks monetary
relief from a defendant immune from such relief. The Court must
read the Plaintiff's pro se complaint indulgently, and accept the
Plaintiff's allegations as true, unless they are clearly irrational
or wholly incredible.
The Plaintiff is presently incarcerated with the Michigan
Department of Corrections (MDOC) at the Lakeland Correctional
Facility (LCF) in Coldwater, Branch County, Michigan. The events
about which he complains occurred at that facility.
The Plaintiff sues Governor Gretchen Whitmer, MDOC Director Heidi
E. Washington, Warden Bryant Morrison, Deputy Warden Robert Ault,
Acting Administrative Assistant Janet Traore, Doctor Margaret
Quellete, Medical Provider E. Coe Hill, Registered Nurse Lori Blue,
Law Librarian Linda Thompson, Resident Unit Manager Timothy Shaw,
Resident Unit Manager Scott Cline, Corrections Officer Unknown
Part(y)(ies), and Corrections Officer Unknown Minor. He also names
Prisoner Counselors Karen Kowalski, Shawanda Cope, Patrick Daniels,
Kevin Dirchell, and Dennis Randall.
In his first amended complaint, the Plaintiff alleges that in March
2020, COVID-19 infections at LCF were rampant and the Defendants
failed to adequately protect inmates, including him, from
infection. He states that he became infected and suffered from
headaches, fatigue, loss of taste and smell, diarrhea, shortness of
breath, coughing, and chills. Plaintiff also claims that he has not
received any testing to determine the extent of the damage caused
to his body by COVID-19.
The Plaintiff claims that from the beginning of the pandemic, the
Defendants failed to institute a true quarantine, and infected
staff members were free to move in and out of facilities, placing
prisoners in imminent danger of becoming infected. He asserts that
each of the named Defendants knew or should have known of the
imminent danger posed to the Plaintiff and other prisoners by
COVID-19, but failed to act in accordance with their duties to
protect him from the virus, or to ensure that he could access the
appropriate process to gain early release from prison.
In his motion to amend and supplement pleadings, the Plaintiff
seeks to add new Defendants to his action. His motion names Deputy
Warden Troy Chrisman, Kirsten Losinski, Counselor Markiyroe
Garrett, Business/Mailroom Manager Sue Middlestadt, Mailroom
Employees Christine Boden and Michael Stevens, Accounting Assistant
Jessica Jones, Lieutenant Christiana Borst, Lieutenant Frank
Sobrieski, and Health Unit Manager Nathan Mikel. However, the
Plaintiff's supplemental pleading is entirely conclusory. Nowhere
in his motion does he allege any specific facts against any of the
individuals he seeks to add to the action.
The Plaintiff appears to be claiming that the Defendants violated
his rights under the Eighth Amendment. He seeks compensatory and
punitive damages, as well as declaratory and injunctive relief.
Having conducted the review required by the Prison Litigation
Reform Act, Judge Neff determines that the Plaintiff's complaint
will be dismissed for failure to state a claim, under 28 U.S.C.
Sections 1915(e)(2) and 1915A(b), and 42 U.S.C. Section 1997e(c).
She must next decide whether an appeal of the action would be in
good faith within the meaning of 28 U.S.C. Section 1915(a)(3).
Although she concludes that the Plaintiff's claims are properly
dismissed, Judge Neff does not conclude that any issue the
Plaintiff might raise on appeal would be frivolous. Accordingly,
she does not certify that an appeal would not be taken in good
faith. Should the Plaintiff appeal this decision, the Court will
assess the $505 appellate filing fee pursuant to Section
1915(b)(1), unless the Plaintiff is barred from proceeding in forma
pauperis, e.g., by the "three-strikes" rule of Section 1915(g). If
he is barred, he will be required to pay the $505 appellate filing
fee in one lump sum.
It is a dismissal as described by 28 U.S.C. Section 1915(g).
An order and judgment consistent with the opinion will be entered.
A full-text copy of the Court's Nov. 19, 2021 Order is available at
https://tinyurl.com/3munmhzy from Leagle.com.
MICHIGAN: Gaskins v. Blue Dismissed for Failure to State Claim
--------------------------------------------------------------
In the case, JEFFREY GASKINS, Plaintiff v. LORI BLUE, et al.,
Defendants, Case No. 1:21-cv-534 (W.D. Mich.), Judge Janet T. Neff
of the U.S. District Court for the Western District of Michigan,
Southern Division, dismissed the Plaintiff's amended complaint for
failure to state a claim.
The lawsuit is a civil rights action originally brought under 42
U.S.C. Section 1983 by 13 state prisoners housed at the Lakeland
Correctional Facility (LCF). On June 22, 2021, the Court denied the
request for a class action certification and severed the claims of
the 13 prisoner Plaintiffs into separate actions. Each Plaintiff,
including Plaintiff Gaskins, was ordered to file an amended
complaint containing only the allegations relevant to that
Plaintiff.
Plaintiff Gaskins now has filed an amended complaint, a motion to
amend and/or supplement the complaint, and a motion for appointment
of counsel. Under the Prison Litigation Reform Act, Pub. L. No.
104-134, 110 Stat. 1321 (1996) (PLRA), the Court is required to
dismiss any prisoner action brought under federal law if the
complaint is frivolous, malicious, fails to state a claim upon
which relief can be granted, or seeks monetary relief from a
defendant immune from such relief. The Court must read the
Plaintiff's pro se complaint indulgently, and accept the
Plaintiff's allegations as true, unless they are clearly irrational
or wholly incredible.
The Plaintiff is presently incarcerated with the Michigan
Department of Corrections (MDOC) at the Lakeland Correctional
Facility (LCF) in Coldwater, Branch County, Michigan. The events
about which he complains occurred at that facility.
The Plaintiff Lori Blue, J. Traeore, Governor Gretchen Whitmer,
MDOC Director Heidi E. Washington, Doctor Margaret Quellete, Warden
Bryant Morrison, Deputy Warden Robert Ault, Resident Unit Manager
Timothy Shaw, Law Librarian Linda Thompson, Corrections Officer
Unknown Minor, Medical Provider-Corizon Health E. Coe Hill,
Resident Unit Manager Scott Cline, and Corrections Officers Unknown
Parties. Plaintiff also names Prisoner Counselors Kevin Kowalski,
Shawanda Cope, Patrick Daniels, Kevin Dirchell, and Denise
Randall.
In his amended complaint, the Plaintiff states that in March and
April of 2020, COVID-19 infections at LCF were rampant and
Defendants failed to institute a true quarantine. He states that he
became infected and suffered from headaches, coughing, diarrhea,
shortness of breath, and fatigue. The Plaintiff also claims that he
has not received any testing to determine the extent of the damage
caused to his body by COVID-19 and that LCF had new infections in
July of 2021. He finally asserts that another prisoner died of
COVID-19 on July 3, 2021.
The Plaintiff claims that from the beginning of the pandemic, the
Defendants failed to institute a true quarantine, and infected
staff members were free to move in and out of facilities, placing
prisoners in imminent danger of becoming infected. He asserts that
each of the named Defendants knew or should have known of the
imminent danger posed to Plaintiff and other prisoners by COVID-19,
but failed to act in accordance with their duties to protect him
from the virus, or to ensure that he could access the appropriate
process to gain early release from prison.
In his motions to amend and/or supplement pleadings, the Plaintiff
seeks to add new Defendants to his action. The Plaintiff's motion
names Deputy Warden Troy Chrisman, Kirsten Losinski, Counselor
Markiyroe Garrett, Business/Mailroom Manager Sue Middlestadt,
Mailroom Employees Christine Boden and Michael Stevens, Accounting
Assistant Jessica Jones, Lieutenant Christiana Borst, Lieutenant
Frank Sobrieski, and Health Unit Manager Nathan Mikel. However, his
supplemental pleading is entirely conclusory. Nowhere in his motion
does he allege any specific facts against any of the individuals he
seeks to add to the action.
The Plaintiff appears to be claiming that the Defendants violated
his rights under the Eighth Amendment. He is seeking compensatory
and punitive damages, as well as declaratory and injunctive
relief.
Having conducted the review required by the Prison Litigation
Reform Act, Judge Neff determines that the Plaintiff's complaint
will be dismissed for failure to state a claim, under 28 U.S.C.
Sections 1915(e)(2) and 1915A(b), and 42 U.S.C. Section 1997e(c).
She must next decide whether an appeal of this action would be in
good faith within the meaning of 28 U.S.C. Section 1915(a)(3).
Although she concludes that the Plaintiff's claims are properly
dismissed, Judge Neff does not conclude that any issue the
Plaintiff might raise on appeal would be frivolous. Accordingly,
she does not certify that an appeal would not be taken in good
faith. Should the Plaintiff appeal this decision, the Court will
assess the $505 appellate filing fee pursuant to Section
1915(b)(1), unless the Plaintiff is barred from proceeding in forma
pauperis, e.g., by the "three-strikes" rule of Section 1915(g). If
he is barred, he will be required to pay the $505 appellate filing
fee in one lump sum.
It is a dismissal as described by 28 U.S.C. Section 1915(g).
An order and judgment consistent with the opinion will be entered.
A full-text copy of the Court's Nov. 24, 2021 Opinion is available
at https://tinyurl.com/yckj8rdm from Leagle.com.
MICHIGAN: Merriweather Suit Dismissed for Failure to State Claim
----------------------------------------------------------------
In the case, WILLIE ALLEN MERRIWEATHER, Plaintiff v. GRETCHEN
WHITMER, et al., Defendants, Case No. 1:21-cv-530 (W.D. Mich.),
Judge Janet T. Neff of the U.S. District Court for the Western
District of Michigan, Southern Division, dismissed the Plaintiff's
amended complaint for failure to state a claim.
The lawsuit is a civil rights action originally brought under 42
U.S.C. Section 1983 by 13 state prisoners housed at the Lakeland
Correctional Facility (LCF). On June 22, 2021, the Court denied the
request for a class action certification and severed the claims of
the 13 prisoner Plaintiffs into separate actions. Each Plaintiff,
including Plaintiff Merriweather, was ordered to file an amended
complaint containing only the allegations relevant to that
Plaintiff.
Plaintiff Merriweather now has filed an amended complaint, a motion
to amend and/or supplement the complaint, and a second amended
complaint. Under the Prison Litigation Reform Act, Pub. L. No.
104-134, 110 Stat. 1321 (1996) (PLRA), the Court is required to
dismiss any prisoner action brought under federal law if the
complaint is frivolous, malicious, fails to state a claim upon
which relief can be granted, or seeks monetary relief from a
defendant immune from such relief. The Court must read the
Plaintiff's pro se complaint indulgently, and accept the
Plaintiff's allegations as true, unless they are clearly irrational
or wholly incredible.
The Plaintiff is presently incarcerated with the Michigan
Department of Corrections (MDOC) at the Lakeland Correctional
Facility (LCF) in Coldwater, Branch County, Michigan. The events
about which he complains occurred at that facility.
The Plaintiff sues Governor Gretchen Whitmer, MDOC Director Heidi
E. Washington, Warden Bryant Morrison, Deputy Warden Robert Ault,
Acting Administrative Assistant Janet Traore, Doctor Margaret
Quellete, Medical Provider E. Coe Hill, Registered Nurse Lori Blue,
Law Librarian Linda Thompson, Resident Unit Manager Timothy Shaw,
Resident Unit Manager Scott Cline, Corrections Officer Unknown
Part(y)(ies), and Corrections Officer Unknown Minor. He also names
Prisoner Counselors Karen Kowalski, Shawanda Cope, Patrick Daniels,
Kevin Dirchell, and Dennis Randall.
In his first amended complaint, the Plaintiff alleges that in March
2020, COVID-19 infections at LCF were rampant and the Defendants
failed to adequately protect inmates, including him, from
infection. He states that he became infected and suffered from
chest pain, chills, loss of taste and smell, diarrhea, shortness of
breath, coughing, headaches, and fatigue. The Plaintiff also claims
that he has not received any testing to determine the extent of the
damage caused to his body by COVID-19.
The Plaintiff claims that from the beginning of the pandemic, the
Defendants failed to institute a true quarantine, and infected
staff members were free to move in and out of facilities, placing
prisoners in imminent danger of becoming infected. He asserts that
each of the named Defendants knew or should have known of the
imminent danger posed to the Plaintiff and other prisoners by
COVID-19, but failed to act in accordance with their duties to
protect him from the virus, or to ensure that he could access the
appropriate process to gain early release from prison.
In his motion to amend and supplement pleadings, Plaintiff seeks to
add new Defendants to his action. His motion names Deputy Warden
Troy Chrisman, Kirsten Losinski, Counselor Markiyroe Garrett,
Business/Mailroom Manager Sue Middlestadt, Mailroom Employees
Christine Boden and Michael Stevens, Accounting Assistant Jessica
Jones, Lieutenant Christiana Borst, Lieutenant Frank Sobrieski, and
Health Unit Manager Nathan Mikel. However, Plaintiff's supplemental
pleading is entirely conclusory. Nowhere in Plaintiff's motion does
he allege any specific facts against any of the individuals he
seeks to add to the action.
The Plaintiff appears to be claiming that Defendants violated his
rights under the Eighth Amendment. He seeks compensatory and
punitive damages, as well as declaratory and injunctive relief.
Having conducted the review required by the Prison Litigation
Reform Act, Judge Neff determines that the Plaintiff's complaint
will be dismissed for failure to state a claim, under 28 U.S.C.
Sections 1915(e)(2) and 1915A(b), and 42 U.S.C. Section 1997e(c).
She must next decide whether an appeal of the action would be in
good faith within the meaning of 28 U.S.C. Section 1915(a)(3).
Although she concludes that the Plaintiff's claims are properly
dismissed, Judge Neff does not conclude that any issue the
Plaintiff might raise on appeal would be frivolous. Accordingly,
she does not certify that an appeal would not be taken in good
faith. Should the Plaintiff appeal this decision, the Court will
assess the $505 appellate filing fee pursuant to Section
1915(b)(1), unless the Plaintiff is barred from proceeding in forma
pauperis, e.g., by the "three-strikes" rule of Section 1915(g). If
he is barred, he will be required to pay the $505 appellate filing
fee in one lump sum.
It is a dismissal as described by 28 U.S.C. Section 1915(g).
An order and judgment consistent with the opinion will be entered.
A full-text copy of the Court's Nov. 19, 2021 Order is available at
https://tinyurl.com/2s4j2vrn from Leagle.com.
MICHIGAN: Stevens v. Whitmer Dismissed for Failure to State a Claim
-------------------------------------------------------------------
In the case, RANDY STEVENS, Plaintiff v. GRETCHEN WHITMER et al.,
Defendants, Case No. 1:21-cv-533 (W.D. Mich.), Judge Janet T. Neff
of the U.S. District Court for the Western District of Michigan,
Southern Division, dismissed the Plaintiff's amended complaint for
failure to state a claim.
The case is a civil rights action originally brought under 42
U.S.C. Section 1983 by 13 state prisoners housed at the Lakeland
Correctional Facility (LCF). On June 22, 2021, the Court denied the
request for a class action certification and severed the claims of
the 13 prisoner Plaintiffs into separate actions. Each Plaintiff,
including Plaintiff Stevens, was ordered to file an amended
complaint containing only the allegations relevant to that
Plaintiff.
Plaintiff Stevens now has filed an amended complaint, a motion for
appointment of counsel, and two motions to amend and/or supplement
the complaint. Under the Prison Litigation Reform Act, Pub. L. No.
104-134, 110 Stat. 1321 (1996) (PLRA), the Court is required to
dismiss any prisoner action brought under federal law if the
complaint is frivolous, malicious, fails to state a claim upon
which relief can be granted, or seeks monetary relief from a
defendant immune from such relief. The Court must read the
Plaintiff's pro se complaint indulgently, and accept the
Plaintiff's allegations as true, unless they are clearly irrational
or wholly incredible.
The Plaintiff is presently incarcerated with the Michigan
Department of Corrections (MDOC) at the Lakeland Correctional
Facility (LCF) in Coldwater, Branch County, Michigan. The events
about which he complains occurred at that facility.
The Plaintiff sues Governor Gretchen Whitmer, MDOC Director Heidi
E. Washington, Doctor Margaret Quellete, Registered Nurse Unknown
Blue, Warden Bryant Morrison, Deputy Warden Robert Ault, Acting
Administrative Assistant Janet Traore, Resident Unit Manager
Timothy Shaw, Law Librarian Linda Thompson, Corrections Officer
Unknown Doffing, Corrections Officer Unknown Donning, Corrections
Officer Unknown Minor, Corrections Officers Unknown Parties, and
Medical Provider E. Coe Hill. He also names Prisoner Counselors
Karen Kowalski, Unknown Randall, Unknown Dirchell, and Unknown
Daniels
In his amended complaint, the Plaintiff states that in March and
April of 2020, COVID-19 infections at LCF were rampant and
Defendants failed to institute a true quarantine. He asserts that
each of the named Defendants knew or should have known of the
imminent danger posed to the Plaintiff and the other prisoners by
COVID-19, but failed to act in accordance with their duties to
protect him from the virus, or to ensure that he could access the
appropriate process to gain early release from prison.
In his motions to amend and/or supplement pleadings, the Plaintiff
seeks to add new Defendants to his action. The Plaintiff's motions
name Deputy Warden Troy Chrisman, Kirsten Losinski, Counselor
Markiyroe Garrett, Business/Mailroom Manager Sue Middlestadt,
Mailroom Employees Christine Boden and Michael Stevens, Accounting
Assistant Jessica Jones, Lieutenant Christiana Borst, Lieutenant
Frank Sobrieski, and Health Unit Manager Nathan Mikel. However, the
Plaintiff's supplemental pleading is entirely conclusory. Nowhere
in his motion does he allege any specific facts against any of the
individuals he seeks to add to the action.
The Plaintiff appears to be claiming that the Defendants violated
his rights under the Eighth Amendment. However, he fails to specify
the relief he is seeking in the case.
Having conducted the review required by the Prison Litigation
Reform Act, Judge Neff determines that the Plaintiff's complaint
will be dismissed for failure to state a claim, under 28 U.S.C.
Sections 1915(e)(2) and 1915A(b), and 42 U.S.C. Section 1997e(c).
She must next decide whether an appeal of this action would be in
good faith within the meaning of 28 U.S.C. Section 1915(a)(3).
Although she concludes that the Plaintiff's claims are properly
dismissed, Judge Neff does not conclude that any issue the
Plaintiff might raise on appeal would be frivolous. Accordingly,
she does not certify that an appeal would not be taken in good
faith. Should the Plaintiff appeal this decision, the Court will
assess the $505 appellate filing fee pursuant to Section
1915(b)(1), unless the Plaintiff is barred from proceeding in forma
pauperis, e.g., by the "three-strikes" rule of Section 1915(g). If
he is barred, he will be required to pay the $505 appellate filing
fee in one lump sum.
It is a dismissal as described by 28 U.S.C. Section 1915(g).
An order and judgment consistent with the opinion will be entered.
A full-text copy of the Court's Nov. 24, 2021 Opinion is available
at https://tinyurl.com/2p8y5kud from Leagle.com.
MICHIGAN: Western District Court Dismisses MacKiehowell v. MDOC
---------------------------------------------------------------
In the case, FELTON MacKIEHOWELL, Plaintiff v. GRETCHEN WHITMER et
al., Defendants, Case No. 1:21-cv-535 (W.D. Mich.), Judge Janet T.
Neff of the U.S. District Court for the Western District of
Michigan, Southern Division, dismissed the Plaintiff's amended
complaint for failure to state a claim.
The case is a civil rights action originally brought under 42
U.S.C. Section 1983 by 13 state prisoners housed at the Lakeland
Correctional Facility (LCF). On June 22, 2021, the Court denied the
request for a class action certification and severed the claims of
the 13 prisoner Plaintiffs into separate actions. Each Plaintiff,
including Plaintiff Mackiehowell, was ordered to file an amended
complaint containing only the allegations relevant to that
Plaintiff.
Plaintiff Mackiehowell now has filed an amended complaint and a
motion to amend and/or supplement the complaint. Under the Prison
Litigation Reform Act, Pub. L. No. 104-134, 110 Stat. 1321 (1996)
(PLRA), the Court is required to dismiss any prisoner action
brought under federal law if the complaint is frivolous, malicious,
fails to state a claim upon which relief can be granted, or seeks
monetary relief from a defendant immune from such relief. The Court
must read the Plaintiff's pro se complaint indulgently, and accept
the Plaintiff's allegations as true, unless they are clearly
irrational or wholly incredible.
The Plaintiff is presently incarcerated with the Michigan
Department of Corrections (MDOC) at the Lakeland Correctional
Facility (LCF) in Coldwater, Branch County, Michigan. The events
about which he complains occurred at that facility.
The Plaintiff sues Governor Gretchen Whitmer, MDOC Director Heidi
E. Washington, Warden Bryant Morrison, Deputy Warden Robert Ault,
Acting Administrative Assistant Janet Traeore, Doctor Margaret
Quellete, Medical Provider E. Coe Hill, Registered Nurse Lori Blue,
Law Librarian Linda Thompson, Resident Unit Manager Timothy Shaw,
Resident Unit Manager Scott Cline, Corrections Officer Unknown
Part(y)(ies), and Corrections Officer Unknown Minor. Plaintiff also
names Prisoner Counselors Karen Kowalski, Shawanda Cope, Patrick
Daniels, Kevin Dirchell, and Denis Randell.
In his amended complaint, the Plaintiff alleges that beginning in
March of 2020, COVID-19 infections at LCF were rampant and
Defendants failed to adequately protect inmates, including the
Plaintiff, from infection. He states that he became infected and
suffered from shortness of breath, fatigue, loss of smell and
taste, diarrhea, fevers and cold sweats, abnormal heart beats, and
heart flutters. He also claims that he has not received any testing
to determine the extent of the damage caused to his body by
COVID-19. The Plaintiff asserts that LCF was again under quarantine
due to new positive cases of COVID on July 7, 2021, and that
another prisoner died of the virus on July 3, 2021.
The Plaintiff claims that from the beginning of the pandemic, the
Defendants failed to institute a true quarantine, and infected
staff members were free to move in and out of facilities, placing
prisoners in imminent danger of becoming infected. He asserts that
each of the named Defendants knew or should have known of the
imminent danger posed to Plaintiff and other prisoners by COVID-19,
but failed to act in accordance with their duties to protect him
from the virus, or to ensure that he could access the appropriate
process to gain early release from prison.
In his motions to amend and/or supplement pleadings, the Plaintiff
seeks to add new Defendants to his action. The Plaintiff's motion
names Deputy Warden Troy Chrisman, Kirsten Losinski, Counselor
Markiyroe Garrett, Business/Mailroom Manager Sue Middlestadt,
Mailroom Employees Christine Boden and Michael Stevens, Accounting
Assistant Jessica Jones, Lieutenant Christiana Borst, Lieutenant
Frank Sobrieski, and Health Unit Manager Nathan Mikel. However, his
supplemental pleading is entirely conclusory. Nowhere in his motion
does he allege any specific facts against any of the individuals he
seeks to add to the action.
The Plaintiff appears to be claiming that the Defendants violated
his rights under the Eighth Amendment. He seeks compensatory and
punitive damages, as well as declaratory and injunctive relief.
Having conducted the review required by the Prison Litigation
Reform Act, Judge Neff determines that the Plaintiff's complaint
will be dismissed for failure to state a claim, under 28 U.S.C.
Sections 1915(e)(2) and 1915A(b), and 42 U.S.C. Section 1997e(c).
She must next decide whether an appeal of this action would be in
good faith within the meaning of 28 U.S.C. Section 1915(a)(3).
Although she concludes that the Plaintiff's claims are properly
dismissed, Judge Neff does not conclude that any issue the
Plaintiff might raise on appeal would be frivolous. Accordingly,
she does not certify that an appeal would not be taken in good
faith. Should the Plaintiff appeal this decision, the Court will
assess the $505 appellate filing fee pursuant to Section
1915(b)(1), unless the Plaintiff is barred from proceeding in forma
pauperis, e.g., by the "three-strikes" rule of Section 1915(g). If
he is barred, he will be required to pay the $505 appellate filing
fee in one lump sum.
It is a dismissal as described by 28 U.S.C. Section 1915(g).
An order and judgment consistent with the opinion will be entered.
A full-text copy of the Court's Nov. 24, 2021 Opinion is available
at https://tinyurl.com/mtucwtau from Leagle.com.
MICHIGAN: Western District Court Tosses Amended Holloway Complaint
------------------------------------------------------------------
In the case, SPENCER HOLLOWAY, Plaintiff v. GRETCHEN WHITMER et
al., Defendants, Case No. 1:21-cv-527 (W.D. Mich.), Judge Janet T.
Neff of the U.S. District Court for the Western District of
Michigan, Southern Division, dismissed the Plaintiff's amended
complaint for failure to state a claim.
The lawsuit is a civil rights action originally brought under 42
U.S.C. Section 1983 by 13 state prisoners housed at the Lakeland
Correctional Facility (LCF). On June 22, 2021, the Court denied the
request for a class action certification and severed the claims of
the 13 prisoner Plaintiffs into separate actions. Each Plaintiff,
including Plaintiff Holloway, was ordered to file an amended
complaint containing only the allegations relevant to that
Plaintiff.
Plaintiff Holloway has now filed an amended complaint. Under the
Prison Litigation Reform Act, Pub. L. No. 104-134, 110 Stat. 1321
(1996) (PLRA), the Court is required to dismiss any prisoner action
brought under federal law if the complaint is frivolous, malicious,
fails to state a claim upon which relief can be granted, or seeks
monetary relief from a defendant immune from such relief. The Court
must read the Plaintiff's pro se complaint indulgently, and accept
the Plaintiff's allegations as true, unless they are clearly
irrational or wholly incredible.
The Plaintiff is presently incarcerated with the Michigan
Department of Corrections (MDOC) at the Lakeland Correctional
Facility (LCF) in Coldwater, Branch County, Michigan. The events
about which he complains occurred at that facility.
The Plaintiff sues Governor Gretchen Whitmer, MDOC Director Heidi
E. Washington, Warden Bryant Morrison, Deputy Warden Robert Ault,
Acting Administrative Assistant Janet Traore, Doctor Margaret
Quellete, Medical Provider E. Coe Hill, Registered Nurse Lori Blue,
Law Librarian Linda Thompson, Resident Unit Manager Timothy Shaw,
Resident Unit Manager Scott Cline, Corrections Officer Unknown
Part(y)(ies), and Corrections Officer Unknown Minor. He also names
Prisoner Counselors Karen Kowalski, Shawanda Cope, Patrick Daniels,
Kevin Dirchell, and Dennis Randall.
In his amended complaint, the Plaintiff claims that from the
beginning of the pandemic, the Defendants failed to follow CDC
directives or to institute a true quarantine, and that staff
members were free to move in and out of facilities as carriers,
which placed prisoners in imminent danger of infection. He alleges
that there was an initial exposure to a COVID-19 positive case from
the E2 unit on the Westside Yard in March of 2020 but that no
notice was given to the population until the virus had spread to
the Eastside Yard 48 hours later. The virus spread to B5 unit, C5
unit, Rec, and D-building, as infected prisoners were placed with
uninfected prisoners, all sharing the same common areas. The
Plaintiff eventually contracted the virus and experienced coughing,
sneezing, diarrhea, fatigue, fever, and headaches. He asserts that
over 800 prisoners at LCF contracted COVID-19, and that the named
Defendants knew, or should have known, of the danger to prisoners
such as the Plaintiff.
The Plaintiff appears to be claiming that Defendants violated his
rights under the Eighth Amendment. He seeks compensatory and
punitive damages, as well as equitable relief.
Having conducted the review required by the Prison Litigation
Reform Act, Judge Neff determines that the Plaintiff's complaint
will be dismissed for failure to state a claim, under 28 U.S.C.
Sections 1915(e)(2) and 1915A(b), and 42 U.S.C. Section 1997e(c).
She must next decide whether an appeal of the action would be in
good faith within the meaning of 28 U.S.C. Section 1915(a)(3).
Although she concludes that the Plaintiff's claims are properly
dismissed, Judge Neff does not conclude that any issue the
Plaintiff might raise on appeal would be frivolous. Accordingly,
she does not certify that an appeal would not be taken in good
faith. Should the Plaintiff appeal this decision, the Court will
assess the $505 appellate filing fee pursuant to Section
1915(b)(1), unless the Plaintiff is barred from proceeding in forma
pauperis, e.g., by the "three-strikes" rule of Section 1915(g). If
he is barred, he will be required to pay the $505 appellate filing
fee in one lump sum.
It is a dismissal as described by 28 U.S.C. Section 1915(g).
An order and judgment consistent with the opinion will be entered.
A full-text copy of the Court's Nov. 19, 2021 Opinion is available
at https://tinyurl.com/yc4zd5j5 from Leagle.com.
MICHIGAN: Western District Court Tosses Hart's Amended Complaint
----------------------------------------------------------------
In the case, LEWIS HART, Plaintiff v. GRETCHEN WHITMER, et al.,
Defendants, Case No. 1:21-cv-528 (W.D. Mich.), Judge Janet T. Neff
of the U.S. District Court for the Western District of Michigan,
Southern Division, dismissed the Plaintiff's amended complaint for
failure to state a claim.
The case is a civil rights action originally brought under 42
U.S.C. Section 1983 by 13 state prisoners housed at the Lakeland
Correctional Facility (LCF). On June 22, 2021, the Court denied the
request for a class action certification and severed the claims of
the 13 prisoner Plaintiffs into separate actions. Each Plaintiff,
including Plaintiff Hart, was ordered to file an amended complaint
containing only the allegations relevant to that Plaintiff.
Plaintiff Hart now has filed an amended complaint, a motion to
amend and/or supplement the complaint, and a second amended
complaint. Under the Prison Litigation Reform Act, Pub. L. No.
104-134, 110 Stat. 1321 (1996) (PLRA), the Court is required to
dismiss any prisoner action brought under federal law if the
complaint is frivolous, malicious, fails to state a claim upon
which relief can be granted, or seeks monetary relief from a
defendant immune from such relief. The Court must read the
Plaintiff's pro se complaint indulgently, and accept the
Plaintiff's allegations as true, unless they are clearly irrational
or wholly incredible.
The Plaintiff is presently incarcerated with the Michigan
Department of Corrections (MDOC) at the Lakeland Correctional
Facility (LCF) in Coldwater, Branch County, Michigan. The events
about which he complains occurred at that facility.
The Plaintiff sues Governor Gretchen Whitmer, MDOC Director Heidi
E. Washington, Warden Bryant Morrison, Deputy Warden Robert Ault,
Acting Administrative Assistant Janet Traore, Doctor Margaret
Quellete, Medical Provider E. Coe Hill, Registered Nurse Lori Blue,
Law Librarian Linda Thompson, Resident Unit Manager Timothy Shaw,
Resident Unit Manager Scott Cline, Corrections Officer Unknown
Part(y)(ies), and Corrections Officer Unknown Minor. He also names
Prisoner Counselors Karen Kowalski, Shawanda Cope, Patrick Daniels,
Kevin Dirchell, and Dennis Randall.
In his amended complaint, the Plaintiff alleges that in March 2020,
COVID-19 infections at LCF were rampant and the Defendants failed
to adequately protect inmates, including him, from infection. The
Plaintiff states that he became infected and suffered from
coughing, sneezing, diarrhea, fever, headaches, fatigue, body
aches, and loss of taste and smell.
The Plaintiff claims that from the beginning of the pandemic, the
Defendants failed to institute a true quarantine, and infected
staff members were free to move in and out of facilities, placing
prisoners in imminent danger of becoming infected. He asserts that
each of the named Defendants knew or should have known of the
imminent danger posed to the Plaintiff and other prisoners by
COVID-19, but failed to act in accordance with their duties to
protect him from the virus, or to ensure that he could access the
appropriate process to gain early release from prison.
In the Plaintiff's second amended complaint, he names each of the
Defendants previously named in his first amended complaint with the
exception of Prisoner Counselor Dennis Randall, who is no longer a
Defendant in the case. He also asserts additional factual
allegations regarding his experience with COVID-19.
In his motion to amend and supplement pleadings, the Plaintiff
seeks to add new Defendants to his action. His motion names Deputy
Warden Troy Chrisman, Kirsten Losinski, Counselor Markiyroe
Garrett, Business/Mailroom Manager Sue Middlestadt, Mailroom
Employees Christine Boden and Michael Stevens, Accounting Assistant
Jessica Jones, Lieutenant Christiana Borst, Lieutenant Frank
Sobrieski, and Health Unit Manager Nathan Mikel. However, the
Plaintiff's supplemental pleading is entirely conclusory. Nowhere
in his motion does he allege any specific facts against any of the
individuals he seeks to add to the action.
The Plaintiff appears to be claiming that the Defendants violated
his rights under the Eighth Amendment. He seeks compensatory and
punitive damages, as well as declaratory relief.
Having conducted the review required by the Prison Litigation
Reform Act, Judge Neff determines that the Plaintiff's complaint
will be dismissed for failure to state a claim, under 28 U.S.C.
Sections 1915(e)(2) and 1915A(b), and 42 U.S.C. Section 1997e(c).
She must next decide whether an appeal of the action would be in
good faith within the meaning of 28 U.S.C. Section 1915(a)(3).
Although she concludes that the Plaintiff's claims are properly
dismissed, Judge Neff does not conclude that any issue the
Plaintiff might raise on appeal would be frivolous. Accordingly,
she does not certify that an appeal would not be taken in good
faith. Should the Plaintiff appeal this decision, the Court will
assess the $505 appellate filing fee pursuant to Section
1915(b)(1), unless the Plaintiff is barred from proceeding in forma
pauperis, e.g., by the "three-strikes" rule of Section 1915(g). If
he is barred, he will be required to pay the $505 appellate filing
fee in one lump sum.
It is a dismissal as described by 28 U.S.C. Section 1915(g).
An order and judgment consistent with the opinion will be entered.
A full-text copy of the Court's Nov. 19, 2021 Order is available at
https://tinyurl.com/2ha5cbv7 from Leagle.com.
MIDWEST ARBOR: Zarate Can't File 1st Amended Complaint, Court Says
------------------------------------------------------------------
In the case, EDGAR ZARATE, on behalf of himself and all other
plaintiffs similarly situated, known and unknown, Plaintiff v.
MIDWEST ARBOR CORPORATION, an Illinois corporation Defendant, Case
No. 20-cv-0809 (N.D. Ill.), Judge Sharon Johnson Coleman of the
U.S. District Court for the Northern District of Illinois, Eastern
Division, denied Plaintiff Zarate's motion to vacate the stay and
for leave to file a first amended complaint.
Introduction
Plaintiff Zarate brings the putative class action against Defendant
Midwest Arbor, his former employer, alleging that it violated the
Fair Labor Standards Act ("FLSA"), the Portal-to-Portal Act, the
Illinois Minimum Wage Law, and the Illinois Wage Payment and
Collection Act ("IWPCA").
On Sept. 4, 2020, the Plaintiff voluntarily filed a motion to stay
proceedings pending arbitration given the arbitration agreements
between the parties. The Court granted the motion. After further
review of the arbitration agreements formed between the parties,
the Plaintiff now moves to vacate the stay and for leave to file a
first amended complaint.
Background
The Plaintiff was a seasonal landscaper employed by the Defendant
between February 2015 and December 2019. On Feb. 4, 2020, the
Plaintiff filed his initial complaint alleging that the Defendant
failed to pay all Plaintiffs overtime wages in violation of the
FLSA, the Portal-to-Portal Act, and the Illinois Minimum Wage Law.
The Plaintiff also claimed that the Defendant made unauthorized
deductions from his and other Plaintiffs' paychecks in violation of
the IWPCA.
After filing his complaint, the Plaintiff discovered that he signed
arbitration agreements in 2018 and 2019 requiring the parties
arbitrate any dispute or claim arising out of the parties'
temporary employment agreements. He then voluntarily filed a motion
to stay proceedings pending arbitration, which the Court granted.
After discovering an alleged flaw in the arbitration agreements,
the Plaintiff filed the current motions to vacate the stay and to
amend the complaint. A month after the Plaintiff filed this motion,
the Defendant sent him a previously undisclosed arbitration
agreement from 2017.
Discussion
A. Waiver
The parties initially agreed to proceed with arbitration based on
the 2018 and 2019 agreements. After minimal progress over
approximately six months, the Plaintiff filed the motion to vacate
the Court's order granting his motion to stay proceedings pending
arbitration. To prevail on his motion to vacate, the Plaintiff must
show that extraordinary circumstances justify the reopening of the
Court's order.
The Plaintiff argues that the stay should be vacated because (1)
the Defendant impliedly waived its rights under the arbitration
agreements by acting in bad faith and delaying arbitration
proceedings and 2) the vagueness and scope of the arbitration
agreements render them unenforceable.
To determine whether a party has impliedly waived its right to
arbitrate, the Court must consider the totality of the
circumstances and decide whether the party against whom the waiver
is to be enforced acted inconsistently with the right to arbitrate.
Factors to consider may include "a party's diligence, or lack
thereof, in asserting its rights under a contract," and "whether
the allegedly defaulting party participated in litigation,
substantially delayed its request for arbitration, or participated
in discovery."
Judge Coleman finds that the Defendant has consistently reflected
the desire to arbitrate. It did not issue discovery requests or
even file an appearance in this matter. Further, six months elapsed
between the order to stay and the motion to vacate the stay. While
the Defendant's responses to the Plaintiff may have been slow, the
delayed responses have not substantially prejudiced the Plaintiff
as he has been on notice since the Defendant informed him of the
arbitration agreements that defendant wants to arbitrate.
The Plaintiff also asserts that because the Defendant failed to
timely provide the signed 2017 arbitration agreement, it waived its
right to arbitration under that agreement. But the late disclosure
of the 2017 arbitration agreement did not prejudice the Plaintiff
or substantially impact his legal strategy; the parties had already
agreed to arbitration. Under the totality of the circumstances,
Judge Coleman holds that the Defendant has acted consistently with
its right to arbitrate and has not waived that right.
B. Enforceability of the Agreements
The Plaintiff also contends that his motion to vacate should be
granted because the arbitration agreement terms are vague and,
therefore, unenforceable. The Supreme Court has consistently
interpreted the Federal Arbitration Act ("FAA") to favor
arbitration and requires arbitration provisions to be enforced
according to their terms. Section 2 of the FAA makes arbitration
agreements "valid, irrevocable, and enforceable" as written, unless
the savings clause applies. The savings clause in the FAA allows
arbitration agreements to be invalidated only by "generally
applicable contract defenses, such as fraud, duress, or
unconscionability," but not by defenses that apply only to
arbitration or that derive their meaning from the fact that an
agreement to arbitrate is at issue.
The Plaintiff claims that the agreements are too vague because none
of them specify the types of disputes that should be arbitrated.
But Judge Coleman holds that each arbitration agreement clearly
indicates that any dispute arising out of "the application or
candidacy for employment, the employment, and the cessation of
employment that are based on local, state, or federal regulatory,
statutory or common law" are subject to arbitration.
Arbitration provisions such as this that cover a wide range of
disputes are not necessarily vague and vagueness is not a valid
contract defense under the FAA, Judge Coleman points out.
Additionally, she says, the language in the agreements has not
changed since the Plaintiff voluntarily agreed to arbitrate. The
Plaintiff himself chose to arbitrate. He cannot now feign ignorance
and argue that the language is vague.
The Plaintiff also argues that the Defendant is required to provide
information or documentation to show that the arbitration clauses
cover his claims and that the Defendant has not produced any. Judge
Coleman holds that document production is not a prerequisite for
enforcing arbitration provisions. Given the strong presumption in
favor of arbitration and the Plaintiff's failure to present a valid
contract defense under the savings clause, the arbitration
agreements are enforceable. Since the Defendant has not waived its
right to arbitrate and the agreements are enforceable, Judge
Coleman cannot grant the Plaintiff the extraordinary remedy of
vacating the stay. The Plaintiff's motion to vacate is denied.
Because she denies the motion to vacate and an amendment to the
complaint would be futile, Judge Coleman must also deny the motion
for leave to amend to add the state law claims. She cannot exercise
supplemental jurisdiction over the 2015 state law claims because
the remaining federal claims are in arbitration and, therefore, the
state law claims would be the only claims before the Court.
Conclusion
For the foregoing reasons, Judge Coleman denied the Plaintiff's
motion to vacate and for leave to file a first amended complaint.
A full-text copy of the Court's Nov. 19, 2021 Memorandum Opinion &
Order is available at https://tinyurl.com/yv5p53pb from
Leagle.com.
MOWI USA: $1.3MM Class Settlement in Neversink Suit Wins Final OK
-----------------------------------------------------------------
In the case, NEVERSINK GENERAL STORE, BRENDA TOMLINSON,
individually and on behalf of all others similarly situated,
Plaintiffs v. MOWI USA, LLC, MOWI DUCKTRAP, LLC, MOWI USA HOLDING,
LLC, and MOWI ASA, Defendants, Case No. 1:20-cv-09293-PAE
(S.D.N.Y.), Judge Paul A. Engelmayer of the U.S. District Court for
the Southern District of New York entered an Order granting:
a. the motion for final approval of the Class Action
Settlement Agreement and Release, dated March 16, 2021,
entered into by the Parties; and
b. the Settlement Class Counsel's motion for an Attorneys'
Fees and Costs Award and for a Class Representative Service
Award.
The matter came before the Court for a fairness hearing on Nov. 23,
2021, pursuant to the Court's Preliminary Approval Order dated May
13, 2021, and on the motion for final approval, as well as the Fee
Motion"). The Court set out its findings in full on the record of
that hearing.
The "Settlement Class" for purposes of the Final Approval Order
means: All persons or entities residing in the United States of
America that purchased a Ducktrap Product with packaging that
included "sustainably sourced," "all natural," and/or "from Maine"
during the period beginning March 1, 2017 and ending on the date of
entry of the Preliminary Approval Order.
Judge Engelmayer approved the Notice and Settlement Administration
Costs in the amount of $219,500, with such costs to be deducted
from the $1.3 million Total Class Consideration pursuant to Section
2.4 of the Settlement Agreement.
The Plaintiffs have represented that it has received an opt-out
from only one class member, Lindsey M. Staten. Accordingly, of the
Settlement Class Members, only Ms. Staten is not bound by the Final
Approval Order and Judgment and is entitled to no relief under the
Settlement. All other persons and entities who fall within the
definition of the Settlement Class are Settlement Class Members and
part of the Settlement Class, and will be bound by the Final
Approval Order and corresponding Judgment and the Settlement
Agreement.
Judge Engelmayer reaffirmed that the Litigation is properly
maintained as a class action, for settlement purposes only,
pursuant to Federal Rules of Civil Procedure 23(b)(3). He
reaffirmed the Court's its appointment of Plaintiff Neversink
General Store and Plaintiff Brenda Tomlinson as the Settlement
Class Representatives to represent the Settlement Class, and of the
Settlement Class Counsel to represent the Settlement Class.
Each Settlement Class Member will receive a payment of up to $2.50
for each Ducktrap Product package purchased in the United States
during the Class Period for which the Settlement Class Member has
provided valid Proof of Purchase, and up to $2.50 for up to ten
Ducktrap Product packages that the Settlement Class Member attests,
on the Claim Form, to have purchased in the United States during
the Class Period for which the Settlement Class Member cannot
provide valid Proof of Purchase.
The Motion for Final Approval is granted, and the Settlement
Agreement and its terms are found to be and approved as fair,
reasonable, and adequate and in the best interest of the Settlement
Class. The Parties and Settlement Administrator are directed to
consummate and implement the Settlement Agreement in accordance
with its terms, including distributing settlement payments to the
Settlement Class Members after deduction of the Notice and
Settlement Administration Costs and the Class Representative
Service Awards (discussed below) from the $1.3 million Total Class
Consideration.
The Second Amended Complaint is dismissed with prejudice and
without costs to any Party, other than as specified in the
Settlement Agreement, the Final Approval Order and corresponding
Judgment, and any order(s) by the Court regarding Settlement Class
Counsel's motion for an Attorneys' Fees and Costs Award and a Class
Representative Service Award.
As referenced at the Nov. 23, 2021 hearing, the release does not
bind Settlement Class Members as to claims based on conduct
occurring after the date of the Preliminary Approval Order.
All Settlement Class Members and Releasing Parties (including any
persons purporting to act on their behalf) have covenanted not to
sue any Released Party with respect to any Released Claim and will
be permanently barred and enjoined from instituting, commencing,
prosecuting, continuing, or asserting any Released Claim against
any Released Party, directly or indirectly (including in any action
purportedly brought on behalf of the general public of the United
States or of a particular state, district, or territory therein).
Pursuant to the terms of the Settlement Agreement, Plaintiffs,
Settlement Class Counsel, Mowi, and Mowi's Counsel have, and will
be deemed to have, released each other from any and all Claims
relating in any way to any Party or counsel's conduct in the
Litigation.
The Final Approval Order and corresponding Judgment is the final,
appealable judgment in the Litigation as to all Released Claims.
The Fee Motion is also granted. Judge Engelmayer approved: (a)
payment of Settlement Class Counsel's Attorneys' Fees and Costs
Award in the total amount of $360,000 (consisting of $353,754.30 in
attorneys' fees, plus $6,245.70 in reimbursement of litigation
expenses); and (b) payment of service awards in the amount of
$7,500 to Plaintiff Neversink General Store and $1,500 to Plaintiff
Brenda Tomlinson, to compensate them for their commitment and
effort on behalf of the Settlement Class, with such service awards
to be deducted from the $1.3 million Total Class Consideration
pursuant to Section 3.3 of the Settlement Agreement.
Pursuant to Rule 54, Judge Engelmayer found that there is no just
reason for delay and respectfully directed the Final Approval Order
and Judgment and immediate entry by the Clerk of the Court. The
Clerk of Court is also respectfully directed to terminate the
motions at Dockets 71, 79, 93, and 94, and to terminate the case.
A full-text copy of the Court's Nov. 23, 2021 Order is available at
https://tinyurl.com/acusjhnz from Leagle.com.
NATIONAL FOOTBALL: Denial of Gordon's Concussion Claim Affirmed
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In the case, IN RE: NATIONAL FOOTBALL LEAGUE PLAYERS' CONCUSSION
INJURY LITIGATION, AMON GORDON, Appellant, Case No. 19-2753 (3d
Cir.), the U.S. Court of Appeals for the Third Circuit affirmed the
District Court's order upholding the Special Master's denial of
Amon Gordon's settlement claim.
Introduction
Mr. Gordon, a retired National Football League ("NFL") linebacker,
seeks a monetary award through the NFL's concussion-settlement
program. Gordon submitted a claim through the settlement program,
but his claim was denied. He appealed the denial to the District
Court, arguing that the Special Master who denied his claim
misinterpreted the settlement agreement. The District Court
affirmed the Special Master's interpretation, and Gordon now
appeals to the Court.
Background
The case arises out of the class-action settlement resolving
retired NFL players' claims that the NFL "failed to inform them of
and protect them from the risks of concussions in football." In
2015, after years of negotiation, the NFL and the former players
reached a final agreement that was subsequently approved by the
District Court. On appeal, the Third Circuit affirmed the District
Court's approval of the agreement, and it became effective on Jan.
7, 2017.
After the effective date, all former players seeking a diagnosis
were required to go through the same Baseline Assessment Program
with physicians who were preapproved by the NFL. But the agreement
established a different set of requirements for former players who
had already received diagnoses from their personal physicians prior
to the effective date. Critical to this appeal, even though the
agreement established a different avenue for former players with
pre-effective-date diagnoses, the agreement explained that all
diagnoses were still required to be "based on evaluation and
evidence generally consistent with" the diagnostic criteria used in
the Baseline Assessment Program. To ensure that pre-effective-date
diagnoses are "generally consistent" with the Program's diagnostic
criteria, the agreement requires that all pre-effective-date
diagnoses be reviewed by an advisory panel of approved physicians.
After the panel makes its determination, former players and the NFL
have the right to appeal the decision to the District Court. The
District Court may refer appeals to a "Special Master," who may
reverse the panel "upon a showing by the appellant of clear and
convincing evidence." In the event of such referral, either party
may appeal the Special Master's decision to the District Court, but
the settlement agreement limits the court's review. The factual
determinations of the Special Master are "final and binding," and
the District Court's review is limited to questions of law.
The settlement agreement enables retired players to receive
monetary relief if they can show that they have a "Qualifying
Diagnosis." Such diagnoses include: (1) Early Dementia, (2)
Moderate Dementia, (3) Alzheimer's disease, (4) Parkinson's
disease, and (5) amyotrophic lateral sclerosis.
Early Dementia is the subject of this appeal. In 2017, Gordon
submitted a claim for a monetary award because, two years prior to
the settlement, his personal physicians diagnosed him with Early
Dementia. Because Gordon received the diagnosis before the
effective date, the diagnosis had to be reviewed by the advisory
panel. The panel approved Gordon's claim and concluded that his
pre-effective-date diagnosis was generally consistent with the
diagnostic criteria in the Baseline Assessment Program. But after
the panel had already issued its approval, a neuropsychology
consultant reviewed the application and recommended that the claim
be denied because Gordon's personal physicians did not properly
scale Gordon's scores. Gordon's claim was also flagged for an
audit. After the audit, the panel again approved Gordon's claim and
concluded that Gordon's pre-effective-date diagnosis met the
Baseline Assessment Program criteria. In response, the NFL appealed
to the Special Master.
The parties agreed that Gordon belonged in the Above Average
pre-injury baseline. They also agreed that Gordon's personal
physicians used many of the same tests that were part of the
Baseline Assessment Program. But the NFL claimed that Gordon's
personal physicians used improper "scaled scores" rather than the
T-scores required by the settlement, which skewed the results. The
NFL argued that when the scores were properly converted to
T-scores, Gordon failed to meet the Program's criteria for an Early
Dementia diagnosis. The Special Master agreed with the NFL,
concluding that the diagnosis from Gordon's personal physicians was
not "generally consistent" with the diagnostic standards in the
settlement agreement. Further, the Special Master concluded that
Gordon's test scores did not show the cognitive decline required
for a diagnosis, so he denied Gordon's claim.
Gordon appealed the Special Master's decision to the District
Court. Because the District Court's jurisdiction is limited to
legal issues, Gordon's appeal was confined to a single question:
Whether the Special Master erroneously required Gordon's
pre-effective-date diagnosis to be "generally consistent" with the
diagnostic standards listed in the settlement's Baseline Assessment
Program. In a well-reasoned and detailed opinion, the District
Court sided with the Special Master's interpretation. The court
explained that, under the settlement, "all Qualifying Diagnoses
must be made consistent with Exhibit 1," and Exhibit 1
unequivocally states that "Retired NFL Football Players diagnosed
outside of the Baseline Assessment Program" must be diagnosed
"based on evaluation and evidence generally consistent with the
Baseline Assessment Program diagnostic criteria." Thus, the
District Court concluded that "the terms of the Settlement
Agreement plainly state that the 'generally consistent' standard
applies to all Qualifying Diagnoses of Early and Moderate Dementia,
including pre-Effective Date diagnoses."
Mr. Gordon timely appealed. However, he now completely abandons his
argument presented to the District Court. He concedes that all
pre-effective-date diagnoses must be "generally consistent" with
the diagnostic criteria in the settlement's Baseline Assessment
Program. He repeated this concession in his reply brief, stating:
"Plaintiff-Appellant withdrew any objection he had over the
question of whether a pre-effective date claim must be generally
consistent with the other claim determinations set forth in the
Settlement Agreement, and never raised this issue again after he
raised it before Judge Brody and it was clarified." Instead, Gordon
now claims that the District Court abused its discretion by failing
to explain its reasoning for upholding the Special Master's
determination. Gordon presses no other arguments.
Discussion
Mr. Gordon made only one argument to the District Court: That his
claim was not required to be generally consistent with the Baseline
Assessment Program. Rather than press that argument, Gordon now
asks the Third Circuit to vacate and remand so the court "can
explain its reasoning." He claims that the court's analysis was an
abuse of discretion because he "cannot discern the factual basis
for the District Court's denial of his award."
The Third Circuit opines that Gordon's argument is meritless. The
court cogently resolved the only question before it: Whether the
diagnosis supporting Gordon's claim had to be generally consistent
with the standards in the Baseline Assessment Program. Although
Gordon claims that the court should have given a more detailed
account of the factual underpinnings of his claim, those issues
were not before the court and were not germane to its disposition
of Gordon's legal objection. The District Court gave a
well-reasoned and detailed analysis of the issue Gordon raised.
Thus, the Third Circuit discerns no abuse of discretion.
Conclusion
The Third Circuit concludes that Gordon's present argument fails
because the District Court fully analyzed and explained the
interpretive question that Gordon raised. The court's failure to
discuss background factual issues is irrelevant because those
issues were never presented to the court. Accordingly, the District
Court's order is affirmed.
A full-text copy of the Court's Nov. 24, 2021 Opinion is available
at https://tinyurl.com/2s35bdc5 from Leagle.com.
NATURAL ESSENTIALS: Class Deal in Savanich Labor Suit Gets Approval
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In the case, RUSTY SAVANICH, on behalf of himself and all other
similarly situated persons, Plaintiffs v. NATURAL ESSENTIALS,
INCORPORATED, Defendant, Case No. 5:20-cv-2088 (N.D. Ohio), Judge
Sara Lioi of the U.S. District Court for the Northern District of
Ohio, Eastern Division, grants the parties' Joint Sealed Motion for
Approval of Settlement and Stipulation of Dismissal with
Prejudice.
Background
Plaintiff Savanich, on behalf of himself and similarly situated
employees, filed a collective action against Defendant Natural
Essentials, alleging Natural Essentials violated the Fair Labor
Standards Act ("FLSA") (29 U.S.C. Section 201 et seq.) and a Rule
23 class action under the Ohio Minimum Fair Wage Standards Act
("Ohio Wage Laws") (Ohio Rev. Code Section 4111 et seq.).
Natural Essentials is an Ohio corporation with a manufacturing
facility located in Aurora, Ohio that manufactures cosmetics and
supplies natural ingredients to its customers. The Plaintiffs are
current and former employees of Natural Essentials and allege that
Natural Essentials violated the FLSA and Ohio Wage Laws by failing
to pay them for time spent changing into and out of personal
protective equipment, getting tools and equipment necessary to
perform their manufacturing jobs, and walking to their assigned
work stations.
Natural Essentials denies that it violated the FLSA and Ohio Wage
Laws and disputes the amount of time the Plaintiffs allege that
they spent engaging in pre- and post-shift work. It also disagrees
with the Plaintiffs on the appropriate limitations period to apply
to the Plaintiffs' claims and whether they can recover liquidated
damages under the FLSA.
On Nov. 17, 2020, the parties filed their Joint Stipulation of
Conditional Certification and Proposed Notice, in which the parties
stipulated to the following class: "All former and current
non-exempt manufacturing employees of Natural Essentials,
Incorporated between November 1, 2017 and the present."
On Nov. 20, 2020, the Court approved the Joint Stipulation of
Conditional Certification and Proposed Notice. The notice to all
potential class members was issued on Nov. 30, 2020, and the opt-in
period closed on Dec. 30, 2020. In addition to Savanich, 63
individuals opted into the class.
In order to avoid the burden, expense, and uncertainty of
litigation, the parties agreed to discuss early resolution. Between
November 2020 and June 2021, the parties engaged in an informal
exchange of information, including the production of time and pay
data for the opt-in parties and the calculation of potential
damages. The parties also engaged in extensive legal and
settlement discussions. Ultimately, they agreed to participate in a
mediation. On Oct. 21, 2021, at the conclusion of a mediation
session before Magistrate Judge Carmen E. Henderson, the parties
reached a settlement. On Nov. 3, 2021, the parties filed the
present Joint Motion.
Discussion
At the outset, Judge Lioi finds that the divergent views of the
facts and the law presented bona fide disputes that, had the
parties not reached settlement, would have necessitated resolution
by the Court and/or a jury. The Joint Motion confirms the same. As
set forth, the parties disagree as to whether plaintiffs were
properly compensated for any and all time spent performing pre- and
post-shift work. The parties further disagree as to the appropriate
limitations period that applied to the Plaintiffs' claims and
whether the Plaintiffs were entitled to liquidated damages.
Having reviewed the terms of the Settlement, Judge Lioi finds that
the Settlement represents a fair and reasonable resolution to bona
fide disputes. Further, she notes that the Settlement was the
result of arms-length negotiations between parties that were
represented by able counsel. As such, she finds no risk of fraud or
collusion.
With respect to the monetary awards to the Plaintiffs, the
Settlement provides that the Plaintiffs will receive individual
payments calculated proportionally on each class member's alleged
overtime damages during the relevant period and represent
compensation for 100% of each member's overtime work and 100% of
liquidated damages for the same during the relevant statutory
period for 10 minutes of unpaid pre-shift work. The individual
payments are provided as Appendix 1 to the Settlement.
Judge Lioi agrees with the parties that the anticipated individual
settlement payments represent an excellent result. Moreover, she
has taken into account the opinion of counsel in the collective
action, who has expressed the opinion that the proposed settlement
is a fair and adequate compromise of the disputed claims and in the
best interest of the Plaintiffs.
As for the award of attorney fees and costs to the Plaintiffs'
counsel, Judge Lioi finds that the award, which is supported by a
declaration of the counsel, is reasonable, taking into
consideration the fact that a settlement was reached early in the
litigation and the successful outcome provides substantial relief
to the Plaintiffs. Moreover, she notes that the attorneys' fee
award amount aligns with the amounts awarded in other FLSA
collective action cases in the Northern District of Ohio.
In addition, the Settlement provides for a service award to the
Plaintiffs' representative, Savanich. Such awards are not uncommon,
and "courts routinely approve incentive awards to compensate named
plaintiffs for the services they provided and the risks they
incurred during the course of the class action litigation."
Plaintiff Savanich played an active role in assisting the
Plaintiffs' counsel. As such, Judge Lioi approves the modest
service award set forth in the Settlement to the representative
plaintiff in recognition of his service in the action.
Conclusion
For all of the foregoing reasons, Judge Lioi approves the
Settlement. She orders that the settlement payments be distributed
in the manner, and subject to the terms and conditions, set forth
in the Settlement. The claims in the Plaintiffs' complaint are
dismissed with prejudice, and the case is closed. The Court will
retain jurisdiction to enforce the parties' Settlement.
A full-text copy of the Court's Nov. 19, 2021 Memorandum Opinion &
Order is available at https://tinyurl.com/bdhnjzzt from
Leagle.com.
NEW HORIZONS: Summary Judgment Order in Brockington Suit Affirmed
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In the case, ALVIN BROCKINGTON, Individually and On Behalf of All
Similarly-Situated, Appellant v. NEW HORIZONS ENTERPRISES, LLC,
Respondent, Case No. WD83838 (Mo. App.), the Court of Appeals of
Missouri for the Western District affirmed the circuit court's
grant of summary judgment to New Horizons.
Introduction
Appellant Brockington, individually and on behalf of all
similarly-situated, appeals the circuit court's grant of summary
judgment to New Horizons on his "Amended Class Action Petition,"
which alleged that New Horizons violated the Missouri Prevailing
Wage Act (Sections 290.210-290.340) and the Missouri Minimum Wage
Law (Sections 290.500-290.530). The Appellant contends that the
circuit court erred in granting New Horizons' motion for summary
judgment, arguing that a reasonable jury could find that the
prevailing wage act applied to Appellant in that evidence in the
record presents a genuine issue of material fact as to whether the
Commonwealth Project was performed "on behalf of" a public body.
Background
On Nov. 20, 2013, Laborers' International Union of North America,
Local 264, individually and on behalf of a class of all
similarly-situated, filed a Petition alleging New Horizons violated
the Missouri Prevailing Wage Act and the Missouri Minimum Wage Law.
On Jan. 17, 2017, Brockington was joined as a party and substituted
for the Union as the class representative. The Appellant's "Amended
Class Action Petition" was filed Jan. 17, 2017, and included the
same Missouri Prevailing Wage Act and Missouri Minimum Wage Law
allegations.
The Appellant alleged that he formerly worked for New Horizons, a
construction contractor based in Kansas City, Missouri, focused on
asbestos remediation. Beginning in 2011, New Horizons performed
work as a subcontractor on a project or series of projects,
generally known as the "Commonwealth Project." The Commonwealth
Project involved the comprehensive rehabilitation and refinishing
of multi-family housing units along Armour Boulevard and Locust
Street in midtown Kansas City. The Appellant alleged that the
Commonwealth Project was paid for in whole or in part with public
funds through tax abatements and incentives. He alleged that the
Commonwealth Project was constructed for public use, with the power
of eminent domain being conferred in connection with the project.
The Appellant alleged that the Commonwealth Project was overseen by
the Planned Industrial Expansion Authority ("PIEA"), a governmental
agency. He performed construction work on this project for New
Horizons. He alleged that New Horizons did not pay the prevailing
wages required for any possible applicable wage classification. The
Appellant received about $15 per straight-time hour of work.
Under Annual Wage Order No. 19, which went into effect in 2012, the
Jackson County prevailing wage rate for a second semiskilled
laborer -- the category covering asbestos removal -- was $26.55.
The fringe benefit amount was an additional $13.75, totaling an
hourly compensation of $40.30.
The Appellant regularly worked in excess of forty hours per week on
the Commonwealth Project. New Horizons only paid one-and-a-half
times the $15 hourly rate, and not one-and-a-half times the
prevailing wage rate. He alleged that employees complained about
the failure of New Horizons to pay prevailing wages, and New
Horizons retaliated against some of these employees, firing at
least one.
The Appellant alleged that New Horizons' semiskilled laborers were
employed by or on behalf of a public body engaged in the
construction of public works, exclusive of maintenance work. He
alleged that New Horizons violated the Missouri Prevailing Wage Act
when it paid the semiskilled laborers less than the applicable
prevailing wage. Further, he alleged that New Horizons violated the
Missouri Minimum Wage Law by failing to pay overtime based on the
prevailing wage rate.
New Horizons answered the Appellant's petition, denying that it
violated Missouri's prevailing or minimum wage laws. It ultimately
filed a Motion for Summary Judgment on Dec. 20, 2019. Therein, New
Horizons argued that it was undisputed that New Horizons' employees
performed work on privately owned property under work orders
entered into with a private entity, The Silliman Group, LLC.
Further, New Horizons argued that it was undisputed that New
Horizons did not enter into any construction contracts with the
City of Kansas City, Missouri ("City") or PIEA, for said work.
New Horizons argued that Appellant had not produced, and would not
be able to produce, evidence showing that its employees who
performed work under work orders entered into between New Horizons
and The Silliman Group, LLC, were employed by or on behalf of PIEA
or the City, which is required for statutory coverage under the
Missouri Prevailing Wage Act. Further, as the Appellant's Missouri
Minimum Wage Law claim required a finding that New Horizons
violated the Missouri Prevailing Wage Act by not paying overtime
consistent with the Missouri Prevailing Wage Act, this claim was
also unsupported.
The Appellant countered that the Prevailing Wage Act applied to the
work performed by New Horizons' employees because the Commonwealth
Project was publicly-funded.
The Appellant filed its own "Appellants' Motion for Partial Summary
Judgment on Liability" on the same date New Horizons filed its
motion, and noted therein that Appellant anticipated raising most
of Appellant's arguments in response to New Horizons' motion. In
his own motion, the Appellant argued that, because he performed
construction work on a public project, he was entitled to be paid
prevailing wage. Appellant asked that the circuit court decide the
issue of liability in his favor, and proceed to jury trial on the
issue of damages.
New Horizons responded that the public funding claimed to have been
received from the City was in the form of a grant that was
specifically designated to cover the cost of blight remediation
work performed by contractors engaged by the developer. It was
undisputed that New Horizons did not perform work for any
contractor engaged by the developer. Nor was there evidence that
New Horizons performed blight remediation work under the
controlling documents. New Horizons argued that Appellant had no
evidence that the work performed by New Horizons' employees was
performed on behalf of a public entity, a requisite showing to
establish liability under the Missouri Prevailing Wage Act.
On April 6, 2020, the circuit court entered an "Order Overruling
Defendant's Motion for Summary Judgment." On April 27, 2020, the
circuit court set aside that order, noting that the order was an
unfinished draft entered in error. On that same date, the circuit
court denied the Appellant's motion for partial summary judgment,
granted New Horizons' motion for summary judgment, and entered
Judgment for New Horizons.
The following day, the circuit court set aside that Judgment to
allow the Appellant to obtain a deposition that had previously been
ordered and scheduled, but not yet held, in connection with a
contempt motion. Following the deposition, the Appellant filed
additional exhibits and a supplemental response to New Horizons'
Statement of Material Facts. On May 11, 2020, the circuit court
again entered an order granting New Horizons' motion for summary
judgment, and entered Judgment against the Appellant and in favor
of New Horizons.
The appeal follows.
Discussion
In reviewing the summary judgment record, the Appellate Court
cannot conclude that the PIEA or the City was engaged in the
construction of the Commonwealth Project such that New Horizons'
workers could be considered employed by or on behalf of a public
body. Contractual provisions and oversight to ensure that public
works desired, encouraged, and incentivized by PIEA and the City
are completed in a timely manner and in compliance with existing
laws speak more to the City's accountability to its citizenry
rather than actual engagement in the construction of public works.
The Appellate Court finds that the circuit court correctly
concluded that there is nothing in the factual record showing that
PIEA or the City was involved in the construction of the
Commonwealth Project. The circuit court correctly noted that the
"factual record lacks any indication that the plans and
specification for the public works were supplied only by the City
or PIEA; no record that the City or PIEA retained the right to
change the plans; no record that the City or PIEA supervised the
construction work in the case."
The Appellate Court agrees with the circuit court that the facts in
this case are more akin to City of Sedalia, where the city issued
revenue bonds to finance or sponsor construction on behalf of a
private developer, than City of Camdenton, where a private
developer financed construction on behalf of the city. Because the
summary judgment record shows that neither the PIEA nor the City
were engaged in the construction of the Commonwealth Project, New
Horizons' workers employed under a contract with subcontractor, The
Silliman Group, LLC, were not employed "by or on behalf of any
public body engaged in the construction of public works."
Hence, the Appellant's point on appeal will be denied.
Conclusion
For the foregoing reasons, the Appellate Court concludes that the
circuit court did not err in granting New Horizons' motion for
summary judgment. The circuit court's Judgment is affirmed. All
concur.
A full-text copy of the Court's Nov. 23, 2021 Order is available at
https://tinyurl.com/2p8ry9td from Leagle.com.
NEW YORK CITY: Prelim. Injunction & TRO Bid in Broecker Suit Denied
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In the case, Nicole Broecker, et al., Plaintiffs v. New York City
Department of Education, City of New York, Meisha Porter, in her
official and individual capacities, United Federation of Teachers,
Local 2, American Federation of Teachers, AFL-CIO, Michael Mulgrew,
in his official and individual capacities, John Doe #1-10, in their
official and individual capacities, and Jane Doe #1-10 in their
official and individual capacities, Defendants, Case No. 21-CV-6387
(KAM) (RLM) (E.D.N.Y.), Judge Kiyo A. Matsumoto of the U.S.
District Court for the Eastern District of New York denied the
Plaintiffs' motion for a preliminary injunction and temporary
restraining order.
Background
The 83 named Plaintiffs are individuals, who have not received at
least a first dose of a COVID-19 vaccine and are employees at
schools operated by the New York City Department of Education ("NYC
DOE"). The Named Defendants are the NYC DOE, the City of New York,
Meisha Porter, the Chancellor of the NYC DOE, the United Federation
of Teachers, Local 2, American Federation of Teachers, AFL-CIO
("UFT"), and Michael Mulgrew, President of the UFT.
Defendants NYC DOE and the City of New York are entities
responsible for enacting and enforcing a COVID-19 vaccination
mandate issued on Aug. 24, 2021, requiring that all NYC DOE
employees receive at least a first dose of a COVID-19 vaccination
by Sept. 27, 2021, in order to work at NYC DOE schools. Defendant
UFT is a labor organization through which certain named Plaintiffs
are covered by a collective bargaining agreement ("CBA") with the
NYC DOE.
On Sept. 10, 2021, the UFT filed a Declaration of Impasse with the
Public Employment Relations Board ("PERB") over the impact of the
Vaccination Mandate. Following expedited mediation and discussions
between the NYC DOE, the City of New York, and the UFT, the
appointed arbitrator, on Sept. 10, 2021, the arbitrator issued a
binding arbitration decision ("Impact Arbitration Award"), which
established in relevant part (1) a processes for religious and
medical exemptions and accommodation requests, namely, processes
for staff to apply for, and appeal from adverse determinations for
medical and religious accommodations to an independent arbitration
panel (and the ability to remain on the DOE payroll and continued
medical benefits coverage while such applications and appeals are
pending); (2) options to voluntarily separate from DOE service with
certain compensation benefits, or to elect for an extended
non-disciplinary leave without pay ("LWOP"), all while maintaining
health benefits until Sept. 5, 2022; and (3) that as of Dec. 1,
2021, the DOE may seek to unilaterally separate employees who have
not complied with the Vaccination Mandate, or who have not obtained
an approved exemption or accommodation and have not opted for
either separation option.
The UFT-specific Impact Arbitration Award covers the majority, but
not all, of the named Plaintiffs. The UFT notified its members of
the Impact Arbitration Award on Sept. 10, 2021, by circulating the
Award and a "plain-language" explanation to UFT members.
Following the issuance of the Sept. 10, 2021, Impact Arbitration
Award, the City's Office of Labor Relations engaged in impact
bargaining with the remaining unions representing NYC DOE
employees, including the Council of Supervisors and Administrators
("CSA"), which represents NYC DOE principals and assistant
principals, and District Council 37 ("DC 37"), which represents
many school-based employees such as school aides, school food
workers and Parent Coordinators. This, all parties were subject to
similar terms regarding the Vaccine Mandate procedures.
The Plaintiffs were notified on Oct. 2, 2021, that lack of
compliance with the Vaccination Mandate would result in placement
on LWOP as of Oct. 4, 2021, and that NYC DOE would seek to separate
noncompliant employees as of Dec. 1, 2021 if they did not opt to
extend their LWOP status and remained out of compliance with the
Vaccination Mandate.
The Plaintiffs allege three categories of claims in their
Complaint. First, they allege that the Order violates their right
to procedural due process under the Due Process Clause of the
Fourteenth Amendment because the Plaintiffs have a property
interest in their pay. Second, the Plaintiffs allege that the
Vaccine Mandate violates their statutory and contractual rights, as
the Plaintiffs have a right to have charges proffered against them
and have a hearing before "discipline" is imposed pursuant to N.Y.
Education Law Section 3020-1, or N.Y. Civil Service Law Section 75,
or the applicable CBA. Third, they allege collusion and aiding and
abetting under 42 U.S.C. Section 1983 against the UFT, Mulgrew,
Porter, and unnamed Jane and John Doe Defendants.
The Plaintiffs seek a preliminary injunction to enjoin and restrain
(1) the Defendants from withholding pay from any and all tenured
principals, assistant principals, and teachers who have failed to
take a COVID-19 vaccine; (2) the Defendants from withholding pay
from any and all civil service employees entitled to N.Y. Civil
Service Law Section 75 rights who have failed to take a COVID-19
vaccine; (3) the Defendants from withholding pay from any and all
employees of the NYC DOE who have failed to take a COVID-19 vaccine
and who, as a term of their union's collective bargaining agreement
with the NYC DOE, allegedly cannot be terminated or disciplined
without a hearing; (4) the NYC DOE from disciplining, including but
not limited to terminating, tenured principals, assistant
principals, and teachers who have failed to take a COVID-19 vaccine
without proffering charges and specifications and granting the
tenured employees a hearing on the charges; (5) the NYC DOE from
disciplining, including but not limited to terminating, any and all
civil service employees entitled to N.Y. Civil Service Law Section
75 rights who have failed to take a COVID-19 vaccine, without
proffering charges and specifications; and, (6) the NYC DOE from
disciplining, including but not limited to terminating any and all
employees of the NYC DOE who have failed to take a COVID-19 vaccine
and who, as a term of their union's collective bargaining agreement
with the NYC DOE, allegedly cannot be terminated or disciplined
without proffering charges and specifications and a hearing.
The parties appeared before the Court on Nov. 23, 2021, for a show
cause hearing. During the show cause hearing, all parties requested
supplemental briefing as to the specific issue of due process
surrounding the forthcoming separation of nonexempt, unvaccinated
Plaintiffs by the NYC DOE on and after Dec. 1, 2021. Specifically,
the parties requested further briefing to address whether a
vaccination requirement constitutes a legitimate condition of
employment, and what, if any, due process requirements are
implicated.
Given the parties' request, Judge Matsumoto limit her analysis and
decision as to the processes and procedures currently in the record
governing the Plaintiffs' current LWOP period prior to separation,
from Oct. 4, 2021, up to and including Nov. 30, 2021.
Discussion
As a threshold matter, Judge Matsumoto notes that the Plaintiffs
failed completely in their papers to address the existence and
effect of the Impact Arbitration Award reached between the UFT, the
Council of Supervisors and Administrators, and District Counsel 37,
which provides critical context for evaluating the Plaintiffs'
request for preliminary injunction. She considers and incorporates
the Sept. 10, 2021, Impact Arbitration Award, raised by the
Defendants, into her analysis.
I. Preliminary Injunction
A. Likelihood of Success on the Merits
Judge Matsumoto holds that the Plaintiffs failed, in their motion
papers and at oral argument during the Nov. 23, 2021 show cause
hearing, to establish a "clear" or "substantial" likelihood of
success on the merits on any of their claims. First, it is dubious
whether the Plaintiffs have standing to challenge the terms of the
Impact Arbitration Award, and similar awards and agreements,
because their respective union representatives engaged on their
behalf with the NYC DOE, which process resulted in the arbitration
awards and agreement. Further, the Impact Arbitration Award
provides for an expedited review process for exemptions and
accommodations, providing an opportunity to be heard for Plaintiffs
challenging their placement on LWOP.
In short, Judge Matsumoto finds that the Plaintiffs had, and
continue to have, multiple avenues available to them to challenge
and address the actions taken against them as a result of the
Vaccination Mandate through the procedures established in the CBAs
governing the terms of the Plaintiffs' employment, including the
Impact Arbitration Award procedures, which provide grievance and
arbitration procedures, and undisturbed, well-established state
court procedures.
B. Irreparable Harm
Though the Plaintiffs need not make any further showing of
irreparable harm once constitutional deprivations have been
alleged, Judge Matsumoto is compelled to note that the harms
resulting from noncompliance with the NYC DOE Vaccination Mandate
identified by the Plaintiff are by no means irreparable. The
Plaintiffs' articulated harms are: Loss of income while on LWOP,
and their possible separation from NYC DOE, which they allege will
occur without adequate processes. These pecuniary harms are neither
irreparable nor sufficient to justify the presently requested
injunctive relief.
Further, Judge Matsumoto says the Plaintiffs' lengthy delay in
seeking to enjoin the NYC DOE's intent to seek separation of
noncompliant and nonexempt employees on Dec. 1, 2021 -- an
occurrence that was entirely known to the Plaintiffs at least by
Oct. 2, 2021, if not earlier -- greatly undermines the strength of
their "emergency" motion for preliminary injunction. There was a
delay of 44 days between the date of the Plaintiffs' actual
placement on LWOP status and the filing of their instant request
for preliminary injunction. The Plaintiffs' inaction does not
convey a looming, irreparable harm, and does not invoke the "urgent
need for speedy action to protect their rights," as is typical when
injunctions are sought on an expedited basis.
C. Balance of the Equities and D. The Public Interest
Judge Matsumoto finds that both the balance of equities and the
public interest disfavor the injunctive relief requested by the
Plaintiffs. As she has noted, the loss of income while on LWOP
status undoubtedly presents a hardship to the Plaintiffs. The
Plaintiffs face this continued hardship if they continue to refuse
to comply with the Vaccination Mandate. The role of the Court,
however, is to "balance the competing claims of injury on each
party of either granting or withholding the requested relief,
paying particular regard to the public consequences." On balance,
the equities at stake and the importance of safeguarding the public
health and safety, and the public interest weigh in favor of
denying the preliminary injunction.
Ultimately, Judge Matsumoto says "it is up to local government,
'not the courts, to balance the competing public health and
business interests,'" and in the case, the New York City government
and NYC DOE have done so in issuing and enforcing the COVID-19
Vaccination Mandate for employees of the Department of Education.
Conclusion
Accordingly, Judge Matsumoto denied the Plaintiffs' motion for a
preliminary injunction and temporary restraining order. Further,
she finds that the Plaintiffs' have not demonstrated that they have
standing to challenge the terms of the Impact Arbitration Award
between the NYC DOE and the UFT in federal court. Therefore, the
Plaintiffs are ordered to show cause by Dec. 15, 2021, why the
action should not be dismissed for lack of standing.
A full-text copy of the Court's Nov. 24, 2021 Memorandum & Order is
available at https://tinyurl.com/ypt43yv4 from Leagle.com.
NORTH CENTRAL: Delivery Drivers Win Class Status in Compton Suit
----------------------------------------------------------------
In the class action lawsuit captioned as MICHAEL DEREK COMPTON,
individually and on behalf of similarly-situated persons, v. NORTH
CENTRAL VIRGINIA RESTAURANTS, INC. d/b/a "Papa John's Pizza," Case
No. 5:20-cv-00073-TTC-JCH (W.D.Va.), the Hon. Judge Thomas T.
Cullen entered an order:
1. certifying a class action comprised of:
"all current and former delivery drivers employed in the
Commonwealth of Virginia by Defendant at any time rom
January 25, 2018 through the present;"
2. approving the form and content of the proposed notice
submitted with the proposed Order granting Plaintiff’s
Motion for Rule 23 Class Certification and authorizing
dissemination of the notice;
3. directing the Defendant to disclose by December 10, 2021
the last known street address of all class members, to the
extent that such contact information was not previously
disclosed to Plaintiff’s counsel;
4. appointing Michael Derek Compton as the class
representative; and
5. appointing Mark Potashnick of Weinhaus & Potashnick, Kevin
Dolley of Dolley Law LLC, and Cary Powell Moseley of the
Law Offices of Cary Powell Moseley, PLLC as class counsel;
A copy of the Court's order dated Dec. 1, 2021 is available from
PacerMonitor.com at https://bit.ly/3ofnfZo at no extra charge.[CC]
NSC TECHNOLOGIES: Hearing on Thompson Deal Prelim. Approval Vacated
-------------------------------------------------------------------
In the case, ARTHUR THOMPSON, an individual, and on behalf of
others similarly situated, Plaintiff v. NSC TECHNOLOGIES, LLC, et
al., Defendants, Case No. 20-cv-00371-JLS-MSB (S.D. Cal.), Judge
Janis L. Sammartino of the U.S. District Court for the Southern
District of California vacated the hearing on the Plaintiff's
unopposed Motion for Preliminary Approval of Class Action
Settlement set for Dec. 2, 2021.
The Court took the matter under submission without oral argument
pursuant to Civil Local Rule 7.1(d)(1).
A full-text copy of the Court's Nov. 24, 2021 Order is available at
https://tinyurl.com/2p8sfw65 from Leagle.com.
NYC MEDICAL: Court Approves Proposed Notices in Lawrence Class Suit
-------------------------------------------------------------------
In the case, KEYLEE LAWRENCE, COURTNEY BRACCIA, BRIA WARNER, and
WENDY ROSADO, individually and on behalf of all others similarly
situated, Plaintiffs v. NYC MEDICAL PRACTICE, P.C. d/b/a Goals
Aesthetics and Plastic Surgery, and SERGEY VOSKIN, M.D.,
Defendants, Case No. 1:18-cv-8649-GHW (S.D.N.Y.), Judge Gregory H.
Woods of the U.S. District Court for the Southern District of New
York issued an Order approving:
a. the parties' proposed Notice of Pendency of Class Action
form, which was submitted to the Court on Nov. 18, 2021;
and
b. the parties' proposed Notice of Lawsuit with Opportunity to
Join and Consent Form, which were submitted to the Court on
Nov. 22, 2021.
The Plaintiffs are directed, within 14 days following the date of
the Order, to distribute and transmit the Notice of Lawsuit with
Opportunity to Join and Consent Form to all individuals within the
definition of the FLSA collective action, by first class U.S. Mail
and electronically by personal and business email.
A full-text copy of the Court's Nov. 23, 2021 Order is available at
https://tinyurl.com/yp4xe5c4 from Leagle.com.
ONTARIO: Class Settlement Reached in Youth Inmates' Lawsuit
-----------------------------------------------------------
The Ontario Superior Court of Justice has approved a $15 million
settlement in a class action lawsuit involving the use of secure
isolation of youth inmates under the age of 18 in Ontario's Youth
Justice Facilities.
The lawsuit alleged that the Province of Ontario's use of secure
isolation in Youth Justice Facilities violated the Charter of
Rights and Freedoms as well as other legal duties owed to youth
inmates. The Province of Ontario has not admitted to these claims,
and they have not been decided by a court.
Under the court-approved settlement, persons who while under the
age of 18 were segregated for more than 6 consecutive hours at
Youth Justice Facilities in Ontario may qualify for damages
payments. The segregation must have occurred between April 1, 2004
and December 17, 2018 at one the following Ontario Youth Justice
Facilities:
-- Bluewater Youth Centre
-- Brookside Youth Centre
-- Cecil Facer Youth Centre
-- Donald Doucet Youth Centre
-- Invictus Youth Centre
-- Justice Ronald Lester Youth Centre
-- Roy McMurtry Youth Centre
-- Sprucedale Youth Centre
-- Toronto Youth Assessment Centre
Compensation for each qualifying placement in segregation is based
on duration, and ranges from $1000 per placement to $40,000 per
placement.
James Sayce, a partner at Koskie Minsky LLP, has stated that "the
settlement provides real compensation for a vulnerable class. We
believe it is a fair outcome after many years of hard-fought
litigation".
The deadline for class members to submit claims under the
settlement is August 26, 2022.
Claim forms and additional information are available online at
www.youthsegregationclassaction.ca. Class members may also contact
the Claims Administrator by email to
info@youthsegregationclassaction.ca or by calling toll-free
1-833-430-7538. [GN]
OWLET INC: Faces Cherian Securities Suit Over Stock Price Drop
--------------------------------------------------------------
JONES CHERIAN, Individually and on Behalf of All Others Similarly
Situated v. OWLET, INC. f/k/a SANDBRIDGE ACQUISITION CORPORATION,
KURT WORKMAN, KATE SCOLNICK, KEN SUSLOW, DOMENICO DE SOLE, RAMEZ
TOUBASSY, JAMIE WEINSTEIN, KRYSTAL KAHLER, and MICHAEL F. GOSS,
Case No. 2:21-cv-09293 (C.D. Cal., Nov. 30, 2021) is class action
complaint pursuing claims against the Defendants under the
Securities Exchange Act of 1934.
This is a class action on behalf of persons and entities: (a) that
purchased or otherwise acquired Owlet securities between March 31,
2021 and October 4, 2021, inclusive (the "Class Period"); and/or
(b) held Sandbridge common stock held as of June 1, 2021 and were
eligible to vote at Sandbridge's special meeting on July 14, 2021.
On July 15, 2021, Sandbridge combined with Owlet Baby Care Inc., a
company that designs and sells products and services for parents to
proactively monitor the health and wellness of their children, and
the combined company was renamed Owlet (the "Business
Combination").
Owlet's flagship product is called Smart Sock, which is a baby
monitor that allows parents to track an infant's oxygen levels,
heart rate, and sleep trends in real time using the Owlet
application.
On October 4, 2021, Owlet revealed that it had received a warning
letter from the U.S. Food and Drug Administration ("FDA"), which
stated that "the Company's marketing of its Owlet Smart Sock
product renders [it] a medical device requiring premarket clearance
or approval from FDA." Owlet has not obtained such clearance or
approval. Moreover, the FDA "requests the Company cease commercial
distribution of the Smart Sock for uses in measuring blood oxygen
saturation and pulse rate where such metrics are intended to
identify or diagnose desaturation and bradycardia using an alarm
functionality to notify users that measurements are outside of
preset values," added the suit.
On this news, Owlet's stock price fell $1.29, or 23%, to close at
$4.19 per share on October 4, 2021, on unusually heavy trading
volume. As a result, Sandbridge investors who could have voted
against the Business Combination and redeemed their shares at
$10.00 per share suffered a loss of $5.81 per share.
Throughout the Class Period, the Defendants allegedly made
materially false and/or misleading statements, as well as failed to
disclose material adverse facts about the Company's business,
operations, and prospects. Specifically, the Defendants failed to
disclose to investors that Owlet was reasonably likely to be
required to obtain marketing authorization for the Smart Sock
because the FDA concluded it was a medical device.
As a result of Defendants' wrongful acts and omissions, and the
precipitous decline in the market value of the Company's
securities, the Plaintiff and other Class members have suffered
significant losses and damages, says the suit.
The Plaintiff purchased Owlet securities during the Class Period,
and suffered damages as a result of the federal securities law
violations and false and/or alleged misleading statements and/or
material omissions.
Sandbridge was a special purpose acquisition company formed for the
purpose of effecting a merger, capital stock exchange, asset
acquisition, stock purchase, reorganization, or similar business
combination with one or more businesses. The Individual Defendants
are officers and directors of the Company.[BN]
The Plaintiff is represented by:
Jennifer Pafiti, Esq.
POMERANTZ LLP
1100 Glendon Avenue, 15th Floor
Los Angeles, CA 90024
Telephone: (310) 405-7190
E-mail: jpafiti@pomlaw.com
OXFORD HEALTH: Suit Seeks Mental Health Benefits Under ERISA
------------------------------------------------------------
MOLLY C. AND NAOMI L., ON BEHALF OF THEMSELVES AND ALL OTHERS
SIMILARLY SITUATED, v. OXFORD HEALTH INSURANCE, INC., Case No.
1:21-cv-10144 (S.D.N.Y., Nov. 30, 2021) involves claims by the
Plaintiffs for mental health benefits under an employee benefit
plan regulated and governed under Employee Retirement Income
Security Act of 1974.
According to the complaint, Oxford wrongfully denied both Molly and
Naomi's claims for outpatient nutritional counseling for their
eating disorders. Although Oxford denied Plaintiffs' nutrition
claims, the company provides coverage under Plaintiffs' health
plans for nutrition counseling for physical conditions such as
diabetes. Oxford's denials for mental health nutritional counseling
breached its fiduciary duties and its obligation to provide mental
health benefits at a level on par with physical condition benefits,
says the suit.
Molly C. is a 22 year old woman treated for an eating disorder in
2019 and 2020. Naomi L. is a 24 year old woman treated for an
eating disorder, bulimia nervosa, in 2019 and 2020. Both were
allegedly denied outpatient nutritional counseling for treatment of
their eating disorders under healthcare plans written and
administered in a deficient manner by Oxford.
Approximately 20 million women and 10 million men suffer from a
clinically significant eating disorder at some time in their life.
Eating disorders are the third most common chronic illness among
adolescents, and the incidence of eating disorders in the United
States has doubled since the 1960s. Eating disorders have the
highest mortality rate of any mental illness, in excess of 20
percent. They can lead to medical complications including cardiac
arrhythmia, heart failure, kidney stones and kidney failure,
cognitive impairment, osteoporosis, constipation, electrolyte
imbalance, muscle atrophy, amenorrhea, teeth erosion, irritation
and tears of the throat, esophagus and stomach, emetic toxicity,
infertility, and death. Suicide, depression, and severe anxiety are
common side effects throughout the illness and treatment.
This action is brought to obtain injunctive, declaratory, and other
equitable and remedial relief to enforce the rights of the named
Plaintiffs and all class members to have their benefit claims
administered in compliance with the requirements of ERISA and the
terms of their plans. Plaintiffs seek relief, including but not
limited to, payment of health benefits; declaratory and injunctive
relief clarifying the manner in which claims must be administered
in the future; injunctive relief requiring that claims denied
during the class period be re-reviewed in compliance with the law;
prejudgment and post-judgment interest; and attorneys' fees and
costs.
Oxford Health Insurance Inc operates as an insurance company. The
Company provides life, accident and health insurance services to
its clients.[BN]
The Plaintiffs are represented by:
Eugene Killian, Jr., Esq.
THE KILLIAN FIRM, P.C.
48 Wall Street, 11th Floor
New York, NY 10005
Telephone: (212) 537-3866
PARETEUM SHAREHOLDERS: Investors Seek to Certify Class Action
-------------------------------------------------------------
In the class action lawsuit RE PARETEUM SECURITIES LITIGATION, Case
No. 1:19-cv-09767-AKH (S.D.N.Y.), the Lead Plaintiffs ask the Court
to enter an order:
1. certifying this action pursuant to Rule 23 as a class
action;
2. appointing them as Class Representatives;
3. appointing Kahn Swick & Foti, LLC as Class Counsel; and
4. granting such other and further relief as the Court may
deem just and proper.
The Lead Plaintiffs, the Pareteum Shareholder Investor Group
(PSIG), comprised of Kevin Ivkovich, Stephen Jones, Keith Moore,
Nicholas Steffey, and Robert E. Whitley, Jr.
A copy of the Lead Plaintiffs' motion to certify class dated Dec.
1, 2021 is available from PacerMonitor.com at
https://bit.ly/3pnXd5k at no extra charge.[CC]
Lead Counsel for the Lead Plaintiff Pareteum Shareholder Investor
Group, are:
Kim E. Miller, Esq.
J. Ryan Lopatka, Esq.
Melissa H. Harris, Esq.
KAHN SWICK & FOTI, LLC
250 Park Avenue, 7th Floor
New York, NY 10177
Telephone: (212) 696-3730
Facsimile: (504) 455-1498
E-mail: kim.miller@ksfcounsel.com
j.lopatka@ksfcounsel.com
melissa.harris@ksfcounsel.com
PAX LABS INC: Ortega Sues Over Non-Blind-Friendly Website
---------------------------------------------------------
Juan Ortega, on behalf of himself and all others similarly
situated, Plaintiff, v. Pax Labs, Inc., Defendants, Case No.
21-cv-10070, (S.D. N.Y., November 24, 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 New York City Human Rights Law.
Pax Labs is an online retail company of vaporizer for wax and
cannabis oil that owns and operates the website www.paxlabs.com
offering products for delivery throughout the United States,
including New York State. Ortega is legally blind nd claims that
Pax Labs' website cannot be accessed by the visually-impaired.[BN]
Plaintiff is represented by:
Jonathan P. Rubin, Esq.
LAW OFFICE OF JONATHAN P. RUBIN, PLLC
3000 Marcus Ave. Suite 1E5
Lake Success, NY 11042
Telephone: (516) 918-9347
Email: jprubinesq@gmail.com
PETROQUEST ENERGY: Ct. Extends Class Cert. Reply Deadlines
----------------------------------------------------------
In the class action lawsuit captioned as Lee, et al., v. PetroQuest
Energy, LLC, et al., Case No. 6:16-cv-00516 (E.D. Okla.), the Hon.
Judge Ronald A. White entered an order granting joint motion to
extend class certification reply deadlines.
The replies are due by Jan. 14, 2022, says Judge White.
Petroquest engages in the acquisition and exploration of oil and
natural gas reserves in East Texas, Arkoma Basin, South Louisiana
and the Gulf of Mexico.[CC]
PICK-UP & GO: Pearson Sues Over Unpaid OT for Delivery Workers
--------------------------------------------------------------
CRYSTAL PEARSON, individually and on behalf of all others similarly
situated, Plaintiff v. PICK-UP & GO MOVING INTERNATIONAL, INC.,
Defendant, Case No. 1:21-cv-01595-SGC (N.D. Ala., December 2, 2021)
is a class action against the Defendant for its failure to
compensate the Plaintiff and similarly situated employees overtime
pay for all hours worked in excess of 40 hours in a workweek in
violation of the Fair Labor Standards Act.
The Plaintiff handled packages for the Defendant by picking them up
and delivering them.
Pick-Up & Go Moving International, Inc. is a warehousing company
based in North Carolina. [BN]
The Plaintiff is represented by:
Bernard R. Mazaheri, Esq.
MAZAHERI & MAZAHERI
P.O. Box 656
Frankfort, KY 40602
Telephone: (502) 475-8201
E-mail: bernie@thelaborfirm.com
PILOT TRAVEL: Waltrip's Reply to Dismissal Bid May Exceed 30 Pages
------------------------------------------------------------------
In the case, JUSTON WALTRIP, ET AL., Plaintiffs v. PILOT TRAVEL
CENTERS, LLC, and PILOT CORPORATION, Defendants, Civil No.
2:21-cv-00643-SMV-KRS (D. New Mexico), Magistrate Judge Stephan M.
Vidmar of the U.S. District Court for the District of New Mexico
granted the Plaintiffs' unopposed Motion for Leave to Exceed Page
Limitation with respect to their Response to Defendants' Motion to
Compel Arbitration, Motion to Enforce Class Action Waiver, and
Motion to Dismiss.
The Plaintiffs have leave to file a response not to exceed 30
pages.
A full-text copy of the Court's Nov. 23, 2021 Order is available at
https://tinyurl.com/2p8mk5tp from Leagle.com.
Benjamin W. Allen -- ballen@wallaceallen.com -- Wallace & Allen,
LLP, in Houston, Texas, COUNSEL FOR THE PLAINTIFFS.
Jessica D. Marshall -- Jessica.Marshall@lewisbrisbois.co -- LEWIS
BRISBOIS BISGAARD & SMITH LLP, in Albuquerque, New Mexico, Alan L.
Rupe -- Alan.Rupe@lewisbrisbois.com -- Pro Hac Vice LEWIS BRISBOIS
BISGAARD & SMITH LLP, in Witchita, Kansas, Attorney for Defendant
Pilot Travel Centers LLC and Pilot Corporation
PROCH.COM INC: Court Allows Preston to File 1st Amended Complaint
-----------------------------------------------------------------
In the case, ARIANA PRESTON, individually and on behalf of all
others similarly situated, Plaintiff v. PROCH.COM, INC., a Delaware
corporation; HIRE A HELPER LLC, a California limited liability
company; KERI MILLER, an individual; and DOES 1 through 50,
inclusive, Defendants, Case No. 21-CV-168 JLS (BLM) (S.D. Cal.),
Judge Janis L. Sammartino of the U.S. District Court for the
Southern District of California granted the Parties' Joint Motion
for Leave to File a First Amended Complaint.
Under Federal Rule of Civil Procedure 15(a), a plaintiff may amend
her complaint once as a matter of course within specified time
limits. Courts generally grant leave to amend absent a showing of
"undue delay, bad faith or dilatory motive on the part of the
movant, repeated failure to cure deficiencies by amendments
previously allowed, undue prejudice to the opposing party by virtue
of allowance of the amendment, or futility of amendment."
The Plaintiff seeks leave to amend the FAC to "(1) add additional
affiliated Defendants, (2) clarify the putative class definition to
conform to the Settlement, and (3) add additional claims that
pertain to newly discovered theories of liability that are to be
released in the proposed Settlement, including claims for Labor
Code Private Attorneys General Act ('PAGA') penalties premised on
alleged violations of California Labor Code, as permitted by
California Labor Code Section 2698 et seq.; the Defendants' alleged
failure to provide meal periods, and authorize and permit rest
periods; the Defendants' alleged failure to furnish accurate wage
statements; Defendants' alleged failure to reimburse business
related expenses; and the Defendants' alleged failure to pay vested
vacation wages at the time of separation of employment."
In light of the extremely liberal policy in favor of amendment and
the Defendants' non-opposition to the Plaintiff's request, Judge
Sammartino granted the Joint Motion.
In light of the foregoing, she granted the Parties' Joint Motion.
The Plaintiff will file the First Amended Class Action Complaint,
previously filed as Exhibit A at ECF No. 29, within three Court
days of the electronic docketing of the Order. Thereafter, the
Clerk of the Court will update the caption and docket accordingly.
Pursuant to the Parties' stipulation, the Defendants will not be
required to file a responsive pleading to the First Amended
Complaint pending approval of the Parties' proposed Settlement.
A full-text copy of the Court's Nov. 24, 2021 Order is available at
https://tinyurl.com/wc2265k from Leagle.com.
PROCTER & GAMBLE: Sued Over Benzene-Based Antiperspirant Products
-----------------------------------------------------------------
HALEY CANADAY, individually and on behalf of all others similarly
situated, v. THE PROCTER & GAMBLE COMPANY, Case No.
3:21-cv-02024-AJB-JLB (S.D. Cal., Dec. 1, 2021) is a proposed class
action complaint brought on behalf of a Class of California
consumers who purchased aerosol antiperspirant products
manufactured, marketed, advertised, sold and labeled by Defendant
under the brand names "Secret" and "Old Spice".
The Defendant allegedly failed inform Plaintiff and the Class
members that the Products are benzene, a known carcinogen. Making
matters worse, the Defendant discloses some ingredients, but failed
to disclose the presence of benzene.
The Defendant's misrepresentations and omissions about the Products
were uniform and were communicated to the Plaintiff, and every
other member of the Class, at every point of purchase and
consumption throughout the Class Period, says the suit.
This lawsuit seeks to enjoin Defendant's false and misleading
practices and to recover damages and restitution on behalf of the
class under applicable state laws.
The Plaintiff purchased Secret Powder Fresh Aerosol from Walmart in
San Diego, California, in or around October 2021.The label of the
Product she purchased did not identify benzene as an active or
inactive ingredient. In fact, it did not disclose the presence of
benzene at all.
Had Defendant not made the false, misleading, and deceptive
representations and omissions in failing to disclose the presence
of benzene in the Products, Plaintiff would not have been willing
to pay the same amount for the product, and, consequently, she
would not have been willing to purchase the Product at all, added
the suit.
The Defendant manufactures, markets, advertises and sells personal
care products, also known as PCPs, including the Products, one or
more of which were purchased by the Plaintiff and members of the
proposed Class. Defendant manufactured, marketed, advertised,
distributed and sold its Products widely throughout the State of
California and the Southern District of California during the Class
Period. The Defendant is a top manufacturer and distributor of
PCPs, including deodorant and antiperspirant products.[BN]
The Plaintiff is represented by:
Michael R. Reese, Esq.
Sue J. Nam, Esq.
George V. Granade, Esq.
REESE LLP
100 West 93 rd Street, 16 th Floor
New York, NY 10025
Telephone: (212) 643-0500
E-mail: mreese@reesellp.com
snam@reesellp.com
ggranade@reesellp.com
- and -
Charles D. Moore, Esq.
Kenneth D. Quat, Esq.
QUAT LAW OFFICES
100 South 5th Street, Suite 1900
373 Winch Street
Minneapolis, MN 55402
Framingham, Massachusetts 01701
Telephone: (212) 643-0500
Facsimile: (212) 253-4272
E-mail: ken@quatlaw.com
cmoore@reesellp.com
PRUDENTIAL FINANCIAL: New Jersey Court Dismisses Stone Class Suit
-----------------------------------------------------------------
In the case, DOYLE C. STONE, individually and on behalf of all
others similarly situated, Plaintiff v. PRUDENTIAL FINANCIAL, INC.
and PRUCO LIFE INSURANCE COMPANY, Defendants, Civil Action No.
21-14610(SDW)(ESK)(D.N.J.), Judge Susan D. Wigenton of the U.S.
District Court for the District of New Jersey granted the
Prudential Financial and Pruco's motion to dismiss the Plaintiff's
putative class action complaint.
Background
Defendant Prudential Financial is a Fortune 500 company
"incorporated under the laws of New Jersey." Defendant Pruco is a
wholly-owned subsidiary of Prudential Financial. The Defendants
provide "a variety of products and services to both individual and
institutional customers, including life and supplemental insurance,
annuities, retirement-related services, investment management, and
mutual funds."
The Plaintiff, a resident of Kentucky, broadly alleges that the
Defendants have "engaged in a scheme to deprive institutional
participants and their beneficiaries of the value of their
retirement, annuity, and insurance plans" by "utilizing deficient
notification and identification practices, along with purposefully
unclear descriptions of benefits, so that less than the full amount
of funds due are distributed to Plan participants and their
beneficiaries."
Although the Complaint is far from clear, it appears that the
Plaintiff is alleging that by failing to give proper notice, the
Defendants 1) can mark Plans as "abandoned" and "transfer the
unclaimed monies into their own accounts" instead of "transferring
the funds to state unclaimed property accounts, as required by
law," or 2) improperly invest "the retained funds for their own"
benefit. The Plaintiff specifically pleads that Defendants fail to
provide proper notice to holders of retirement plans, matured
annuities, and life insurance plans that are "transferred to
Prudential as a new administrator."
The Plaintiff alleges that he is a Plan participant who holds three
life insurance policies and one annuity plan and was promised, but
did not receive, proper notice of changes to his policies from
January 2010 through January 2021, causing him "to lose at least
$30,000 in benefits" and incur "thousands of dollars in fees." He
does not allege that he holds a retirement plan, a matured annuity,
or a transferred life insurance policy. Nor does the Plaintiff
identify the terms of his Plans, what changes were made to his
policies that required notice, the identities of the individuals
who made the alleged promises, or any facts supporting his claim
for monetary harm.
On Aug. 4, 2021, the Plaintiff filed suit in the Court, asserting
claims for: violation of the New Jersey Consumer Fraud Act
("NJCFA"), N.J. Stat. Sections 56:8-1, et seq. (Count I); breach of
fiduciary duty (Count II); unjust enrichment (Count III); and
common law fraud (Count IV).
The Plaintiff brings suit "on behalf of himself and all other
persons in the United States who were (1) Plan participants in the
retirement, annuity, and insurance Plans in or after January 2105
until the present date (the `Class Period') and were damaged by
Defendants' deficient notification practices and/or improper
transfer of funds to its own accounts or (2) the beneficiaries of
such Plans (the 'Class')."
The Defendants moved to dismiss pursuant to Federal Rules of Civil
Procedure 12(b)(6) and 9(b) on Sept. 24, 2021, and all briefing was
timely filed.
Discussion
A. Common Law Fraud (Count IV)
To bring a claim for common law fraud under New Jersey law, a party
must show: "(1) a material misrepresentation of a presently
existing or past fact; (2) knowledge or belief by the defendant of
its falsity; (3) an intention that the other person rely on it; (4)
reasonable reliance thereon by the other person; and (5) resulting
damages."
Judge Wigenton opines that the Plaintiff's broad allegations fall
far short of the specificity required by Rule 9(b). He alleges only
that when he signed up for his Plans, "each company promised,
through a Sales Representative and the Prudential Representatives
who signed the policies, that he would receive proper notices to
any changes in his policies." He does not identify who those
representatives were, what precisely he was told, what was
materially misleading or false about those statements, or that the
individuals involved intended him to rely on their statements in
order to misappropriate funds or benefits belonging to him. The
Plaintiff's allegation that his reliance on those statements cost
him $30,000 in benefits is not supported with any specific factual
allegations. Therefore, Judge Wigenton holds that the Plaintiff has
not sufficiently pled the elements for a claim of common law fraud
under New Jersey law and that claim will be dismissed.
B. NJCFA (Count I)
To state a claim under the NJCFA, a plaintiff must sufficiently
plead: "(1) unlawful conduct by the defendant; (2) an ascertainable
loss by the plaintiff; and (3) a causal connection between the
defendant's unlawful conduct and the plaintiff's ascertainable
loss." Unlawful conduct may consist of "affirmative acts, knowing
omissions, and violation of regulations promulgated under N.J.
Stat. Ann Sections 56:8-2, 56:8-4."
Because the NJCFA addresses fraudulent conduct, Judge Wigenton
holds that Rule 9(b)'s heightened pleading standards apply. Having
failed to satisfy the pleading requirements for common law fraud
under New Jersey law, she finds that the Plaintiff has also failed
to sufficiently plead a claim under the NJCFA and the Defendants'
motion to dismiss Count One will be granted.
C. Breach of Fiduciary Duty (Count II)
In order to establish a claim for breach of fiduciary duty, a
plaintiff must plead the following: (1) the defendant had a duty to
the plaintiff, (2) the duty was breached, (3) injury to plaintiff
occurred as a result of the breach, and (4) the defendant caused
that injury. In order for a fiduciary duty to exist, there must be
a 'special relationship of trust and confidence' between the
parties. An 'ordinary commercial transaction based in contract'
does not give rise" to such a relationship.
Judge Wigenton opines that the Plaintiff's position that the
Defendants owed him a fiduciary duty because they "performed all of
the decisions on whether to restrict the Plaintiff and the Class'
members benefits" is simply not enough to give rise to a special
relationship of trust or confidence. Because the relationship
between the Plaintiff and the Defendants is purely contractual,
Juduge Wigenton holds that the Defendants' motion to dismiss Count
Two will be granted with prejudice.
D. Unjust Enrichment (Count III)
Unjust enrichment is an equitable cause of action that imposes
liability when a defendant received a benefit and "retention of
that benefit without payment would be unjust." To state a claim for
unjust enrichment under New Jersey law, a plaintiff must allege
that '(1) at plaintiff's expense (2) defendant received benefit (3)
under circumstances that would make it unjust for defendant to
retain benefit without paying for it.'" However, restitution for
unjust enrichment is an equitable remedy, available only when there
is no adequate remedy at law. Where, in the case, the parties do
not dispute that they entered into a valid contract, an aggrieved
party's remedy is a breach of contract claim, not a claim for
unjust enrichment. Because the Plaintiff has an adequate remedy at
law, Count Three will be dismissed with prejudice.
Conclusion
For the reasons she set forth, Judge Wigenton granted the
Defendants' Motion to Dismiss. The Plaintiff will have 30 days
within which to file an amended complaint. The Defendants' pending
Motion for Sanctions will be addressed after that amendment and any
subsequent motion to dismiss is filed. An appropriate order
follows.
A full-text copy of the Court's Nov. 19, 2021 Opinion is available
at https://tinyurl.com/ycks63du from Leagle.com.
PUBLISHERS CLEARING: Sells Customers' Personal Info, Palmer Claims
------------------------------------------------------------------
BECKY PALMER, individually and on behalf of all others similarly
situated, Plaintiff v. PUBLISHERS CLEARING HOUSE, INC., Defendant,
Case No. 2:21-cv-06686 (E.D.N.Y., December 1, 2021) is a class
action against the Defendant for violation of Ohio's Right of
Publicity Law (ORPL).
The case arises from the Defendant's alleged disregard of the
Plaintiff's and Class members' statutorily protected rights under
ORPL by selling and renting mailing lists containing the
Plaintiff's and all of its other customers' names, addresses, and
other personal identifying transactional data on the open market to
data miners, data aggregators, data appenders, data cooperatives,
list brokers, aggressive marketing companies, and various other
parties interested in purchasing them. The Defendant's action of
monetizing its customers' names and likenesses for commercial
purposes without their consent is not only unlawful, but also
dangerous because it allows any member of the public willing to
purchase or rent this data to target particular customers, alleges
the suit.
Publishers Clearing House, Inc. is a direct marketing company, with
its headquarters and principal place of business in Jericho, New
York. [BN]
The Plaintiff is represented by:
Thomas L. Laughlin, IV, Esq.
Jonathan M. Zimmerman, Esq.
SCOTT+SCOTT ATTORNEYS AT LAW LLP
The Helmsley Building
230 Park Avenue, 17th Floor
New York, NY 10169
Telephone: (212) 223-6444
Facsimile: (212) 223-6334
E-mail: tlaughlin@scott-scott.com
jzimmerman@scott-scott.com
- and –
Frank S. Hedin, Esq.
Arun G. Ravindran, Esq.
HEDIN HALL LLP
1395 Brickell Avenue, Suite 1140
Miami, FL 33131
Telephone: (305) 357-2107
Facsimile: (305) 200-8801
E-mail: fhedin@hedinhall.com
aravindran@hedinhall.com
PUBLISHERS CLEARING: Sells Personal Transactional Data, Suit Says
-----------------------------------------------------------------
ATTILIO FIORDIROSA, individually and on behalf of all others
similarly situated v. PUBLISHERS CLEARING HOUSE, INC., Case No.
2:21-cv-06682 (E.D.N.Y., Dec. 1, 2021) alleges that Defendant sold,
rented, and continues to sell and rent, mailing lists containing
the Plaintiff's and all of its other customers' names and addresses
(as well as gender, and information pertaining to their purchase of
products from PCH (Personal Identifying Transactional Data)) on the
open market to data miners, data aggregators, data appenders, data
cooperatives, list brokers, aggressive marketing companies, and
various other parties interested in purchasing them.
Prior to monetizing the Plaintiff's and its other customers'
Personal Identifying Transaction Data in this way, PCH did not ask
for, much less obtain, consent from any of these individuals, the
lawsuit says.
The Plaintiff purchased products from PCH while residing in, being
a citizen of, and being physically present in, Illinois.
Publishers Clearing is a direct marketing company that markets
merchandise and magazine subscriptions with sweepstakes and
prize-based games.[BN]
The Plaintiff is represented by:
Thomas L. Laughlin, IV, Esq.
Jonathan M. Zimmerman, Esq.
SCOTT+SCOTT ATTORNEYS AT LAW LLP
The Helmsley Building
230 Park Avenue, 17th Floor
New York, NY 10169
Telephone: (212) 223-6444
Facsimile: (212) 223-6334
E-mail: tlaughlin@scott-scott.com
jzimmerman@scott-scott.com
- and -
Frank S. Hedin, Esq.
Arun G. Ravindran, Esq.
HEDIN HALL LLP
1395 Brickell Avenue, Suite 1140
Miami, FL 33131
Telephone: (305) 357-2107
Facsimile: (305) 200-8801
E-mail: fhedin@hedinhall.com
aravindran@hedinhall.com
PUBLISHERS CLEARING: Tanenbaum Sues Over Sale of Customers' Info
----------------------------------------------------------------
RUTH TANENBAUM, individually and on behalf of all others similarly
situated, Plaintiff v. PUBLISHERS CLEARING HOUSE, INC., Defendant,
Case No. 2:21-cv-06687 (E.D.N.Y., December 1, 2021) is a class
action against the Defendant for violation of Puerto Rico's Right
of Publicity Act (PRRPA).
The case arises from the Defendant's alleged disregard of the
Plaintiff's and Class members' statutorily protected rights under
PRRPA by selling and renting mailing lists containing the
Plaintiff's and all of its other customers' names, addresses, and
other personal identifying transactional data on the open market to
data miners, data aggregators, data appenders, data cooperatives,
list brokers, aggressive marketing companies, and various other
parties interested in purchasing them. The Defendant's alleged
action of monetizing its customers' names and likenesses for
commercial purposes without their consent is not only unlawful, but
also dangerous because it allows any member of the public willing
to purchase or rent this data to target particular customers.
Publishers Clearing House, Inc. is a direct marketing company, with
its headquarters and principal place of business in Jericho, New
York. [BN]
The Plaintiff is represented by:
Thomas L. Laughlin, IV, Esq.
Jonathan M. Zimmerman, Esq.
SCOTT+SCOTT ATTORNEYS AT LAW LLP
The Helmsley Building
230 Park Avenue, 17th Floor
New York, NY 10169
Telephone: (212) 223-6444
Facsimile: (212) 223-6334
E-mail: tlaughlin@scott-scott.com
jzimmerman@scott-scott.com
- and –
Frank S. Hedin, Esq.
Arun G. Ravindran, Esq.
HEDIN HALL LLP
1395 Brickell Avenue, Suite 1140
Miami, FL 33131
Telephone: (305) 357-2107
Facsimile: (305) 200-8801
E-mail: fhedin@hedinhall.com
aravindran@hedinhall.com
PUSHPAY USA: Blankers et al. Sue Over Failure to Pay Proper OT
--------------------------------------------------------------
AUDRA BLANKERS and W.B.T. ARNOLD, on behalf of themselves and
others similarly situated, Plaintiffs v. PUSHPAY USA, INC.,
Defendant, Case No. 2:21-cv-01549 (W.D. Wash., November 16, 2021)
bring this class and collective action complaint alleging the
Defendant of violations of the Fair Labor Standards Act.
The Plaintiffs and other similarly situated employees were employed
by the Defendant as inside salespeople in the job title of sales
development representative between March 1, 2018 and June 1, 2020.
The Plaintiffs claim that they were misclassified by the Defendant
as exempt from overtime compensation. Despite regularly working
more than 40 hours per week, the Defendant did not pay them
overtime compensation at the rate of one and one-half times their
regular rate of pay for all hours worked in excess of 40 per
workweek. Moreover, the Defendant has failed to keep true and
accurate time records for all hours worked by its SDRs, and failed
to provide them with meal and rest breaks.
Pushpay USA, Inc. is a "full mobile giving and engagement solution
that serves over 7,000 churches around the world." [BN]
The Plaintiffs are represented by:
Matthew Crotty, Esq.
CROTTY & SON LAW FIRM, PLLC
905 W. Riverside Ave. Ste. 404
Spoken, WA 99201
Tel: (509) 850-7011
E-mail: matt@crottyandson.com
- and –
Douglas M. Werman, Esq.
Michael T. Tresnowski, Esq.
WERMAN SALAS P.C.
77 West Washington, Suite 1402
Chicago, IL 60602
Tel: (312) 419-1008
E-mail: dwerman@flsalaw.com
mtresnowski@flsalaw.com
- and –
Sally J. Abrahamson, Esq.
WERMAN SALAS P.C.
335 18th P. NE
Washington, D.C. 20002
Tel: (202) 830-2016
E-mail: sabrahamson@flsalaw.com
Q LINK WIRELESS: Faces Brown Sues Over Unsolicited Voice Messages
-----------------------------------------------------------------
HADASSAH BROWN, individually and on behalf of all others similarly
situated, Plaintiff v. Q LINK WIRELESS, LLC, Defendant, Case No.
CACE-21-020554 (Fla. 17th Jud. Cir. Ct. November 16, 2021) is a
class action complaint brought against the Defendant for its
alleged violations of the Telephone Consumer Protection Act.
The Plaintiff claims that the Defendant sent a prerecorded voice
message to her cellular telephone number ending in 5288 on or about
June 28, 2021 in an attempt to encourage the Plaintiff to purchase
its products, goods and/or services. The Plaintiff asserts that she
never provided the Defendant with her prior express written consent
to call her on her cellular telephone utilizing a prerecorded voice
message. As a result of the Defendant's alleged unsolicited call,
the Plaintiff and other similarly situated individuals were harmed
in the form of invasion of their privacy, aggravation, annoyance,
intrusion on seclusion, trespass, and conversion, as well as
inconvenience and disruption to their daily life.
Q Link Wireless, LLC is a telecommunications company. [BN]
The Plaintiff is represented by:
Manuel S. Hiraldo, Esq.
HIRALDO P.A.
401 E. Las Olas Blvd., Suite 1400
Ft. Lauderdale, FL 33301
Tel: (954) 400-4713
E-mail: mhiraldo@hiraldolaw.com
- and –
Michael Eisenband, Esq.
EISENBAND LAW, P.A.
515 E. Las Olas Blvd., Suite 120
Fort Lauderdale, FL 33301
Tel: (954) 533-4092
E-mail: meisenband@eisenbandlaw.com
QIHOO 360: Second Circuit Vacates Dismissal of Altimeo Class Suit
-----------------------------------------------------------------
In the case, ALTIMEO ASSET MANAGEMENT AND ODS CAPITAL LLC,
INDIVIDUALLY AND ON BEHALF OF ALL OTHERS SIMILARLY SITUATED,
Plaintiffs-Appellants v. QIHOO 360 TECHNOLOGY CO. LTD., ERIC X.
CHEN, Defendants-Appellees, HONYI ZHOU, XIANGDONG QI, Defendants,
Case No. 20-3074 (2d Cir.), the U.S. Court of Appeals for the
Second Circuit vacates the district court's dismissal of the
Appellants' claim and remands for further proceedings.
Introduction
In the case, the Second Circuit must decide whether the Appellants,
representing a putative class of investors, plausibly alleged a
misstatement or omission of material fact sufficient to state a
claim for securities fraud and therefore to survive a motion to
dismiss. The Appellants claim that the appellees represented to
shareholders that there were no plans to relist the company
following a shareholder buyout, when in fact the company had such a
plan at the time of the buyout. Usually, to survive a motion to
dismiss a complaint need only plead "enough facts to state a claim
to relief that is plausible on its face." However, "for complaints
alleging securities fraud, the Second Circuit applies heightened
pleading requirements imposed by Federal Rule of Civil Procedure
9(b) and the Private Securities Litigation Reform Act." The
district court considered the sources and contents of the pleaded
facts, and it held that the Appellants' complaint did not meet
those requirements.
Background
Appellee Qihoo is an internet company, incorporated under the laws
of the Cayman Islands and headquartered in Beijing. It was founded
by Hongyi Zhou and Xiangdong Qi; Zhou served as the chairman and
chief executive officer of Qihoo, while Qi served as its president
and a director. In 2011, Qihoo listed its American depository
shares on the New York Stock Exchange. Zhou and Qi owned Qihoo
securities through their holding vehicles Global Village Associates
Limited and Young Vision Group Limited, respectively.
In May 2015, Zhou discussed with two investment funds the
possibility of taking Qihoo private. He also discussed the
possibility with Qi. On June 17, Zhou -- along with four investment
funds, Global Village, Young Vision, and other investors (the
"Buyer Group") -- provided Qihoo's board with a proposal to acquire
all outstanding shares not owned by the board (the "Merger"). The
proposal prompted the board to form a Special Committee chaired by
director Eric Chen, who is also an appellee in the case. The
Special Committee retained J.P. Morgan Securities (Asia Pacific)
Limited to evaluate the proposal. Ultimately, J.P. Morgan gave the
Special Committee its opinion that the proposal was fair, and in
December 2015 the Special Committee "expressly adopted" J.P.
Morgan's "analyses and opinion." The Special Committee and the
board approved the Merger, and the board recommended that the
shareholders approve it as well. On December 18, 2015, Qihoo
executed the Merger with the Buyer Group.
The Merger was approved with 99.8 percent of the votes cast at the
shareholder meeting, and it was closed on July 15, 2016. The
outstanding shares were purchased for $9.4 billion. After the
Merger, Qihoo spun off its main businesses into 360 Technology Co.
Ltd. On Nov. 2, 2017, SJEC -- an elevator-manufacturing company
listed on the Shanghai Stock Exchange -- "announced that it would
be conducting a backdoor listing," that is, a reverse merger, with
360 Technology Co. Ltd. I About four months later, on Feb. 28,
2018, the necessary asset restructuring was completed and Qihoo
shares effectively began trading on the Shanghai Stock Exchange. By
the end of the first trading day, Qihoo had a market capitalization
of $62 billion.
Altimeo Asset Management is a portfolio management company based in
France. ODS Capital LLC ("ODS") is a Florida limited liability
company with its primary office in Jupiter, Florida. Both Altimeo
and ODS, the Appellants in the case, traded Qihoo securities during
the period from December 2015 to June 2016.
In August 2019, Altimeo and ODS, on behalf of themselves and
similarly situated Plaintiffs, filed a putative class action
complaint in the U.S. District Court for the Central District of
California. The complaint alleged that Qihoo, Zhou, Qi, and Chen
violated Section 10(b), Section 20(a), and Section 20A of the
Exchange Act, as well as SEC Rule 10b-5. The complaint alleged that
the Buyer Group had a plan to relist Qihoo in the Chinese capital
market at the time of the Merger and that the financial projections
the appellees provided to the Buyer Group differed from the
projections provided in the Proxy Materials. Because the appellants
did not know of the plan to relist or these more optimistic
projections, they sold their securities at "artificially deflated
prices."
To support its allegations, the complaint refers to several
sources. It refers to a confidential witness who "worked in Qihoo's
Public Relations department" from 2014 to 2017 and "reported to a
senior editor in the department." Among other things, the witness
claims that, in mid-2015, the witness "attended a department
meeting where Defendant Qi directed the attendees that they needed
to keep a low profile concerning the relisting plan and should 'not
release this information outside the company.'"
The complaint also incorporates news articles in Chinese
publications from November and December 2015 in which the authors
report that the privatization plan Qihoo distributed to the Buyer
Group included plans to relist the company. And the complaint
further alleges that "it typically takes companies at least a full
year on the quickest possible timeline, and usually longer, from
the time they first start to consider a backdoor listing until they
reach agreement with a shell company to conduct a reverse merger."
Moreover, the complaint states that "Qihoo's fundamental
restructuring of its businesses was particularly complex and would
have required a significant amount of time to complete following
the Merger."
The case was transferred to the U.S. District Court for the
Southern District of New York on Oct. 30, 2019. The Appellees filed
a motion to dismiss for failure to state a claim under Federal Rule
of Civil Procedure 12(b)(6). The district court granted the motion,
holding that the complaint "does not adequately allege any material
misrepresentations or omissions by the Defendants." In particular,
the district court held that the complaint did not adequately plead
"that the Defendants, as of the Merger, had in place a concrete
plan to relist Qihoo" as opposed merely "to envisioning a possible
future relisting."
Altimeo and ODS now appeal.
Discussion
The Second Circuit reviews the district court's dismissal of a
complaint de novo. The Appellants' complaint contains three counts.
Count I alleges that the Appellees are liable for false or
misleading statements in violation of Section 10(b) of the Exchange
Act and SEC Rule 10b-5. Count II claims that Qihoo, Zhou, and Qi
traded Qihoo securities while in possession of insider information
in violation of Section 20A of the Exchange Act. Finally, Count III
asserts that Zhou, Qi, and Chen violated Section 20(a) of the
Exchange Act as controlling persons of Qihoo during the time Qihoo
violated Section 10(b). The district court dismissed the complaint
in its entirety.
I
First, the Second Circuit considers the Appellants' claim under
Section 10(b) and Rule 10b-5. The district court held that the
appellants failed adequately to allege the first element of a Rule
10b-5 claim -- specifically, the complaint "did not adequately
allege any material misrepresentations or omissions by the
Defendants."
The Second Circuit disagrees that the Appellants failed adequately
to allege any material misrepresentations or omissions. It finds
that the Appellants adequately alleged misstatements and omissions
on the part of the Appellees. The allegations create a plausible
inference that a concrete plan was in place at the time Qihoo
issued the Proxy Materials. The alleged misstatements and omissions
were also material.
In sum, "even securities plaintiffs need not prove their entire
case within the confines of the complaint." Regardless of whether
the Appellants ultimately prove that there are material
misstatements or omissions of fact, the Second Circuit holds that
they have alleged enough to survive a motion to dismiss on those
grounds.
II.
The Appellants also allege violations of Section 20(a) and Section
20A of the Exchange Act. The district court dismissed the
Appellants' claims under Section 20(a) and Section 20A because it
held that the appellants did not adequately allege an independent
Exchange Act violation -- in the case, the Section 10(b) claim.
As the Second Circuit has explained, the district court erred when
it held that the Appellants failed adequately to allege a material
misstatement or omission. It therefore vacates the district court's
dismissal of the Section 20(a) and Section 20A claims as well.
Conclusion
The Second Circuit concludes that the Appellants adequately alleged
a misstatement or omission of material fact. In the complaint, the
Appellants included facts from which the Second Circuit can infer
that, in order for the company to have been relisted when it was,
the Appellees must have been planning to relist at the time of the
shareholder vote. The Appellants also included references to news
articles indicating that, before the shareholder vote, the
Appellees were already planning to relist the company. The Second
Circuit therefore vacates the district court's dismissal of the
Appellants' claim and remands for further proceedings consistent
with its Opinion.
A full-text copy of the Court's Nov. 24, 2021 Opinion is available
at https://tinyurl.com/y4eybwty from Leagle.com.
JEREMY A. LIEBERMAN -- jalieberman@pomlaw.com -- (Michael Grunfeld
-- mgrunfeld@pomlaw.com -- on the brief), Pomerantz LLP, in New
York City, for the Plaintiffs-Appellants.
DAVID KISTENBROKER -- david.kistenbroker@dechert.com -- (Joni
Jacobsen -- joni.jacobsen@dechert.com -- Angela Liu --
angela.liu@dechert.com -- Brian Raphel -- brian.raphel@dechert.com
-- on the brief), Dechert LLP, in Chicago, Illinois, for the
Defendants-Appellees.
QUINSTREET PL: Faces Pizarro TCPA Suit Over Prerecorded Messages
----------------------------------------------------------------
Sharon Pizarro, Individually and on Behalf of All Others Similarly
Situated v. Quinstreet PL Inc. d/b/a AmOne, a California
corporation, Case No. 1:21-cv-10139 (S.D.N.Y., Nov. 30, 2021) is a
class action complaint for damages, injunctive relief, and any
other available legal or equitable remedies, resulting from the
illegal actions of Quinstreet, in negligently and/or willfully
using prerecorded messages to call Plaintiff on Plaintiff's
cellular telephone, without Plaintiff's express consent, in
violation of the Telephone Consumer Protection Act.
The Plaintiff seeks injunctive relief to halt Defendant's illegal
conduct, which has resulted in the invasion of privacy, harassment,
aggravation, and disruption of the daily life of thousands of
individuals. The Plaintiff also seeks statutory damages on behalf
of Plaintiff and members of the Class, and any other available
legal or equitable remedies.
The Defendant operates under the names AmOne and GuideToLenders and
is a wholly-owned subsidiary of QuinStreet, Inc. a publicly traded
company.
The Defendant offers debt consolidation, auto and home improvement
loans to consumers and charges an interest rate and/or other fees
for doing so.[BN]
The Plaintiff is represented by:
Rachel N. Dapeer, Esq.
DAPEER LAW, P.A.
20900 N.E. 30th Ave., Ste. 417
Aventura, FL 333180
Telephone: (305) 610-5223
E-mail: rachel@dapeer.com
- and -
Manuel S. Hiraldo, Esq.
HIRALDO P.A.
401 E. Las Olas Boulevard, Suite 1400
Ft. Lauderdale, FL 33301
Telephone: (954) 400-4713
E-mail: mhiraldo@hiraldolaw.com
RCI LLC: N.D. Ohio Dismisses Bryan TCPA Suit With Prejudice
-----------------------------------------------------------
Judge J. Philip Calabrese of the U.S. District Court for the
Northern District of Ohio, Eastern Division, dismissed the case,
TARA BRYAN, Plaintiff v. RCI, LLC, Defendant, Case No.
1:21-CV-00291 (N.D. Ohio), with prejudice pursuant to Rule
41(a)(2).
Background
Plaintiff Bryan filed the matter as a putative class action
alleging Defendant RCI, LLC violated the Telephone Consumer
Protection Act. After significant discovery limited to whether any
third parties were involved in making the alleged marketing calls
at issue, the Plaintiff withdrew the class allegations and now
moves to dismiss the case without prejudice under Rule 41(a)(2).
Analysis
After a defendant has filed an answer, as in the case, or motion
for summary judgment, a plaintiff may obtain a voluntary dismissal
"only by court order, on terms that the court considers proper."
This type of dismissal generally is without prejudice. Requiring
court approval "protects the nonmovant from unfair treatment."
I. Plain Legal Prejudice
Whether to grant dismissal rests "within the sound discretion of
the district court." In exercising this discretion, courts consider
whether "the defendant would suffer 'plain legal prejudice' as a
result of a dismissal without prejudice, as opposed to facing the
mere prospect of a second lawsuit." To determine whether a
defendant will suffer plain legal prejudice, a court considers
factors such as: (1) "the defendant's effort and expense of
preparation for trial," (2) "excessive delay and lack of diligence
on the part of the plaintiff in prosecuting the action," (3)
"insufficient explanation for the need to take a dismissal," and
(4) "whether a motion for summary judgment has been filed by the
defendant." On the record presented, Judge Calabrese opines that
these factors and the interests of justice favor dismissal with
prejudice.
A. Effort and Expense
The effort and expense of preparation for trial weighs in the
Defendant's favor. Although the Court did not schedule a trial
date, the proceedings advanced considerably toward class
certification and resolution on the merits through summary judgment
or trial. In addition to exchanging discovery, the Defendant
undertook an "extensive investigation of Plaintiff's claims and
RCI's business records" to find some factual connection between the
allegations and Defendant's conduct.
The Defendant moved to strike the class allegations, though the
Plaintiff's decision to withdraw her class allegations rendered
that motion moot. Further, the Defendant produced two witnesses for
deposition as well as a witness to testify under Rule 30(b)(6)
regarding a wide range of topics, including its practices and
procedures for solicitations, its vendors, and its services.
The Plaintiff directs the Court to Moran v. Ruan Logistics, No.
1:18-cv-223, 2020 WL 4732991 (S.D. Ohio Aug. 15, 2020), which held
that dismissal after two years of litigation did not prejudice the
defendants enough to preclude voluntary dismissal without
prejudice. The Moran Court reasoned that most of the discovery
could be reused in any re-filed action. Even if that is the case in
the matter, though it may not be, the Moran Court noted the "case
is a close call." On the different facts and circumstances in the
case, the case is not a close call. The Defendant's efforts and
expenses expended favor a finding of legal prejudice if the matter
is dismissed without prejudice.
B. Delay
The Plaintiff has not unreasonably delayed her prosecution of the
action, Judge Calabrese finds. He states that the Plaintiff has
diligently pursued evidence for her claims with targeted discovery
under the direction and supervision of the Court. The Defendant
argues she has unreasonably delayed in seeking dismissal, but that
is not quite what this factor examines. Whether or not the
Plaintiff delayed in seeking dismissal, Judge Calabrese opines that
she actively prosecuted the case. Under these circumstances, any
delay would not amount to plain legal prejudice to the Defendant.
C. Reason for Dismissal
The Plaintiff claims that she will need to subpoena the third-party
entity she believes is connected to Defendant and "hundreds if not
thousands" of other international entities to pursue her claims and
that such extensive discovery is disproportionate to a case without
class allegations. The additional discovery would be necessary to
connect the Defendant to the phone calls the Plaintiff allegedly
received in violation of the Telephone Consumer Protection Act.
As Defendant points out, Judge Calabrese holds that the discovery
so far has not yet connected Defendant to the calls, and there is
no indication that additional discovery will, no matter how much
fishing the Plaintiff undertakes. This factor also supports legal
prejudice from a dismissal without prejudice.
D. Summary Judgment
The Plaintiff is correct that no party has sought adjudication on
the merits or moved for summary judgment, Judge Calabrese holds.
But, he finds that the voluminous discovery to date indicates that
a motion for summary judgment is forthcoming and, as the Defendant
notes, but for the Court staying the case, the deadline for such
motions is Jan. 10, 2022. At most, this factor is neutral. In Judge
Calabrese's view, however, the substantial progress on the merits
of the case weigh in favor of dismissal with prejudice.
II. Fees
Alternatively, the Defendant requests an award of fees under Rule
41(a)(2) in the event the action is dismissed without prejudice.
Because he dismisses the matter with prejudice, Judge calabrese
declines to award Defendant its fees and costs. In any event,
nothing about the litigation justifies a departure from the
traditional American Rule under which each party bears its fees and
costs.
Conclusion
For the foregoing reasons, and on consideration of the record as a
whole and the parties' respective arguments, Judge Calabrese
exercises discretion to dismiss the action with prejudice. In doing
so, he finds that the Defendant would suffer plain legal prejudice,
not merely the prospect of a second lawsuit. Between the efforts
and expense expended already, the Plaintiff's admission that
extensive additional international discovery would be necessary to
pursue her case against the Defendant, and the progress of the case
toward dispositive motions, the record shows the legal prejudice
the Defendant would suffer from a dismissal without prejudice.
Accordingly, Judge Calabrese granted in part and denied in part the
Plaintiff's motion. He dismissed the case with prejudice pursuant
to Rule 41(a)(2). The Clerk will enter judgment accordingly.
A full-text copy of the Court's Nov. 19, 2021 Opinion & Order is
available at https://tinyurl.com/yckzuftk from Leagle.com.
REPROSOURCE FERTILITY: Faces Bickham Suit Over Personal Data Breach
-------------------------------------------------------------------
JASMYN BICKHAM, individually and on behalf of all others similarly
situated, Plaintiff v. REPROSOURCE FERTILITY DIAGNOSTICS, INC.,
Defendant, Case No. 1:21-cv-11879-GAO (D. Mass., Nov. 19, 2021) is
a class action against the Defendant for its failure to exercise
reasonable care in securing and safeguarding its patients'
sensitive personal data, including names, addresses, email
addresses, dates of birth, Social Security numbers, health
insurance billing information, and treating physician information,
collectively known as personally identifiable information ("PII" or
"Private Information").
According to the complaint the sensitive PII of the Plaintiff and
the Class were stolen by cybercriminals in a cyber-attack that
accessed sensitive patient information through ReproSource's
services on or around August 8, 2021 (the "Data Breach"). The
alleged Data Breach affected at least 350,000 individual customers
of ReproSource's services. ReproSource reported to the Plaintiff
that information compromised in the Data Breach included her PII.
The Plaintiff was not notified of the data breach until October 21,
2021, more than two months after her information was first
accessed. As a result of the Data Breach, the Plaintiff and the
Class will experience various types of misuse of their PII in the
coming months and years, including but not limited to unauthorized
credit card charges, unauthorized access to email accounts,
identity theft, and other fraudulent use of their financial
accounts, says the suit.
There has been no assurance offered by ReproSource that all
personal data or copies of data have been recovered or destroyed.
ReproSource offered to provide Kroll credit monitoring, which does
not guarantee the security of Plaintiff's or Class members'
information. To mitigate further harm, the Plaintiff chose not to
disclose any more information in order to receive services
connected with ReproSource, added the suit.
REPROSOURCE FERTILITY DIAGNOSTICS, INC. specializes in diagnostic
services, such as genetics-based ovarian health and recurrent
pregnancy loss assessments. [BN]
The Plaintiff is represented by:
David Pastor, Esq.
PASTOR LAW OFFICE, LLP
63 Atlantic Avenue, 3rd Floor
Boston, MA 02110
Telephone: (617) 742-9700
Facsimile: (617) 742-9701
Email: dpastor@pastorlawoffice.com
-and-
Nicholas A. Migliaccio, Esq.
Jason S. Rathod, Esq.
MIGLIACCIO & RATHOD, LLP
412 H Street, NE, Suite 302
Washington, DC 20002
Telephone: (202) 470-520
Facsimile: (202) 800-2730
Email: nmigliaccio@classlawdc.com
RESIDEO TECH: Entwistle & Cappucci Reminds of Jan. 27 Deadline
--------------------------------------------------------------
IN RE RESIDEO TECHNOLOGIES, INC. SECURITIES LITIGATION
Case No. 19-cv-02863 (WMW/KMM)
SUMMARY NOTICE OF PENDENCY AND PROPOSED SETTLEMENT OF
CLASS ACTION AND MOTION FOR ATTORNEYS' FEES AND EXPENSES
To: All persons and entities who or which purchased or otherwise
acquired the common stock of Resideo Technologies, Inc. ("Resideo"
or the "Company") during the period from October 15, 2018 through
November 6, 2019, inclusive, and were damaged thereby ("Settlement
Class").
YOU ARE HEREBY NOTIFIED, pursuant to Rule 23 of the Federal Rules
of Civil Procedure and an Order of the United States District Court
for the District of Minnesota, that Court-appointed Lead Plaintiffs
The Gabelli Asset Fund, The Gabelli Dividend & Income Trust,
Gabelli Focused Growth and Income Fund f/k/a The Gabelli Focus Five
Fund, The Gabelli Multimedia Trust Inc., The Gabelli Value 25 Fund
Inc., GAMCO International SICAV, GAMCO Asset Management Inc., Naya
1740 Fund Ltd., Naya Coldwater Fund Ltd., Naya Master Fund LP and
Nayawood LP, and additional plaintiff Oklahoma Firefighters Pension
and Retirement System, on behalf of themselves and all members of
the proposed Settlement Class, and defendants Resideo, Michael G.
Nefkens, Joseph D. Ragan III and Niccolo de Masi (collectively,
"Defendants"), have reached a proposed settlement of the claims in
the above-captioned class action (the "Action") in the amount of
$55,000,000 (the "Settlement").
A hearing will be held before the Honorable Wilhelmina M. Wright,
either in person or remotely in the Court's discretion, on January
27, 2022, at 9:00 a.m. in Courtroom 7A of the United States
District Court for the District of Minnesota, Warren E. Burger
Federal Building and U.S. Courthouse, 316 North Robert Street,
Saint Paul, MN 55101 (the "Settlement Hearing") to determine
whether the Court should: (i) approve the proposed Settlement as
fair, reasonable and adequate; (ii) dismiss the Action with
prejudice as provided in the Stipulation and Agreement of
Settlement, dated August 17, 2021; (iii) approve the proposed Plan
of Allocation for distribution of the proceeds of the Settlement
(the "Net Settlement Fund") to Settlement Class Members; and (iv)
approve Co-Lead Counsel's Fee and Expense Application. The Court
may change the date of the Settlement Hearing, or hold it remotely,
without providing another notice. You do NOT need to participate at
the Settlement Hearing to receive a distribution from the Net
Settlement Fund.
IF YOU ARE A MEMBER OF THE SETTLEMENT CLASS, YOUR RIGHTS WILL BE
AFFECTED BY THE PROPOSED SETTLEMENT AND YOU MAY BE ENTITLED TO A
MONETARY PAYMENT. If you have not yet received a full Notice and
Claim Form, you may obtain copies of these documents by visiting
the website for the Settlement,
www.ResideoTechnologiesSettlement.com, or by contacting the Claims
Administrator at:
Resideo Technologies Settlement c/o JND Legal Administration
P.O. Box 91250
Seattle, WA 98111
www.ResideoTechnologiesSettlement.com
833-823-0043
Inquiries, other than requests for information about the status of
a claim, may also be made to Co-Lead Counsel:
ENTWISTLE & CAPPUCCI LLP
Andrew J. Entwistle, Esq.
Frost Bank Tower
401 Congress Avenue, Suite 1170
www.entwistle-law.com
512-710-5960
LABATON SUCHAROW LLP
Ira A. Schochet, Esq.
140 Broadway
New York, NY 10005
www.labaton.com
settlementquestions@labaton.com
888-219-6877
If you are a Settlement Class Member, to be eligible to share in
the distribution of the Net Settlement Fund, you must submit a
Claim Form postmarked or submitted online no later than March 4,
2022. If you are a Settlement Class Member and do not timely submit
a valid Claim Form, you may not be eligible to share in the
distribution of the Net Settlement Fund, but you will nevertheless
be bound by all of the terms of the Stipulation and Agreement of
Settlement, and all of the terms of the Judgment or any Alternative
Judgments or orders entered by the Court relating to the
Settlement, whether favorable or unfavorable.
If you are a Settlement Class Member and wish to exclude yourself
from the Settlement Class, you must submit a written request for
exclusion in accordance with the instructions set forth in the
Notice so that it is received no later than January 6, 2022. If you
properly exclude yourself from the Settlement Class, you will not
be bound by any judgments or orders entered by the Court relating
to the Settlement, whether favorable or unfavorable, and you will
not be eligible to share in the distribution of the Net Settlement
Fund.
Any objections to the proposed Settlement, Co-Lead Counsel's Fee
and Expense Application and/or the proposed Plan of Allocation must
be filed with the Court, either by mail or in person, and be mailed
to counsel for the Parties in accordance with the instructions in
the Notice, such that they are received no later than January 6,
2022.
PLEASE DO NOT CONTACT THE COURT, DEFENDANTS OR DEFENDANTS' COUNSEL
REGARDING THIS NOTICE.
BY ORDER OF THE COURT
UNITED STATES DISTRICT COURT DISTRICT OF MINNESOTA [GN]
ROBINHOOD MARKETS: Fails to Protect Customers' Info, Glinoga Says
-----------------------------------------------------------------
MARK GLINOGA, individually and on behalf of all others similarly
situated, Plaintiff v. ROBINHOOD MARKETS, INC.; ROBINHOOD CRYPTO,
LLC; ROBINHOOD FINANCIAL LLC; and ROBINHOOD SECURITIES, LLC,
Defendants, Case No. 4:21-cv-09290-KAW (N.D. Cal., December 1,
2021) is a class action against the Defendants for negligence,
breach of contract, breach of implied contract, unjust enrichment,
and violations of California Unfair Competition Law and
California's Consumer Privacy Act.
The case arises from the Defendants' failure to safeguard the
Personal Identifying Information (PII) of their customers,
including the Plaintiff, from unauthorized access. The Defendants
failed to implement adequate and reasonable cyber-security
procedures and protocols necessary to protect PII. As a result, an
alleged data breach occurred on the Defendants' customer support
systems which compromised the confidential information of its
customers.
Robinhood Markets, Inc. is a financial services company,
headquartered in Menlo Park, California.
Robinhood Crypto, LLC is a wholly-owned subsidiary of Robinhood
Markets, Inc., with its principal place of business located at 85
Willow Road, Menlo Park, California.
Robinhood Financial LLC is a wholly-owned subsidiary of Robinhood
Markets, Inc., with its principal place of business located at 85
Willow Road, Menlo Park, California.
Robinhood Securities, LLC is a wholly-owned subsidiary of Robinhood
Markets, Inc., with its principal place of business located at 85
Willow Road, Menlo Park, California. [BN]
The Plaintiff is represented by:
Jonathan Shub, Esq.
Kevin Laukaitis, Esq.
SHUB LAW FIRM LLC
134 Kings Hwy. E., 2nd Floor
Haddonfield, NJ 08033
Telephone: (856) 772-7200
E-mail: jshub@shublawyers.com
klaukaitis@shublawyers.com
SANDERSON FARMS: Court Tosses All Remaining Claims in La Fosse Suit
-------------------------------------------------------------------
Judge Richard Seeborg of the U.S. District Court for the Northern
District of California, San Francisco Division, dismissed with
prejudice all remaining claims in the case, PAM La FOSSE, et al.,
Plaintiffs v. SANDERSON FARMS, INC., Defendant, Case No.
3:19-CV-06570 (RS) (N.D. Cal.).
After a considerable expenditure of legal resources and a detailed
review of the facts and law -- including the Ninth Circuit's
decision in Cohen v. ConAgra Brands, Inc., No. 20-55969, 2021 WL
4956243 (9th Cir. Oct. 26, 2021) -- Plaintiff Pam La Fosse has
determined to voluntarily dismiss her claims against Sanderson with
prejudice.
The Plaintiff and her counsel no longer seek to certify a class in
the action and withdraw any class allegations.
Sanderson has not paid and will not pay to the Plaintiff any
consideration in respect of this dismissal, nor has Sanderson
provided nor will it provide any other form of relief, and the
Plaintiff acknowledges she has not received and will not receive
any compensation or relief in voluntarily deciding to dismiss her
claims.
The Parties all consent to dismissal of the Plaintiff's claims in
accordance with and in recognition of the representations.
Although the matter was filed as a class action, the class was not
certified nor proposed to be certified, such that Court approval of
the dismissal pursuant to Rule 23(e) of the Federal Rules of Civil
Procedure is not required.
The Parties agree to bear their own costs and legal fees as
incurred.
In recognition of the foregoing, and pursuant to Federal Rule of
Civil Procedure 41(a)(1)(A)(ii), Plaintiff La Fosse and Defendant
Sanderson stipulate that all remaining claims should be dismissed
with prejudice. The Parties agree to bear all costs as incurred.
Judge Seeborg so ordered.
A full-text copy of the Court's Nov. 19, 2021 Order is available at
https://tinyurl.com/2p8as88d from Leagle.com.
SCHEAR CONSTRUCTION: Fails to Pay Proper Wages, Book Suit Alleges
-----------------------------------------------------------------
MICHAEL BOOK, individually and on behalf of all others similarly
situated, Plaintiff v. SCHEAR CONSTRUCTION, LLC, Defendant, Case:
3:21-cv-00080 (D.V.I., Nov. 18, 2021) seeks to recover from the
Defendant unpaid wages and overtime compensation, interest,
liquidated damages, attorneys' fees, and costs under the Fair Labor
Standards Act.
Plaintiff Book was employed by the Defendant as laborer.
SCHEAR CONSTRUCTION, LLC is a contractor providing stucco, drywall
and metal framing. [BN]
The Plaintiff is represented by:
Nathan J. Mirocha, Esq.
MIROCHALAW LLC
1138 King Street, 108
Christiansted, VI 00820
Telephone: (340) 715-7790
Email: nate@mirochalawvi.com
SER ENTERPRISES: Hernandez Files Labor Class Action
---------------------------------------------------
Gabriel Hernandez, individually and on behalf of all those
similarly situated Plaintiff, v. SER Enterprises, Inc. and DHL
Express (USA) Inc., Defendant, Case No. 21-cv-01174 (W.D. Tex.,
November 23, 2021), seeks all available remedies under the Fair
Labor Standards Act.
DHL is a logistics that transport goods to customers across the
United States, as well as in other countries and territories. SER
provides last-mile delivery services to DHL. SER employs courier
rrivers, such as Hernandez, to deliver packages to DHL's customers.
Hernandez was hired in April 2018 and worked as a Courier Driver
for Defendants until August 2019 in DHL's ServicePoint facility in
San Antonio, TX, delivering packages on behalf of DHL. He regularly
worked more than 40 hours per week without being paid overtime
premiums. He also claims to be denied meal breaks yet Defendants
automatically deducted 30 minutes for a meal break from each shift
worked, regardless of whether he took a break during the workday,
asserts the complaint. [BN]
Plaintiff is represented by:
Shanon J. Carson, Esq.
Camille Fundora Rodriguez, Esq.
Alexandra K. Piazza, Esq.
Daniel F. Thornton, Esq.
BERGER & MONTAGUE, P.C.
1818 Market Street, Suite 3600
Philadelphia, PA 19103
Tel: (215) 875-3000
Fax: (215) 875-4620
Email: scarson@bm.net
crodriguez@bm.net
apiazza@bm.net
dthornton@bm.net
SOCLEAN INC: Philips Devices Contain PE-PUR Foam, Bradley Suit Says
-------------------------------------------------------------------
LEONARD BRADLEY & CHINEDU EKWEOZOH, on behalf of themselves and all
others similarly situated v. SOCLEAN, INC., Case No. 1:21-cv-01029
(D.N.H., Dec. 1, 2021) is a class action complaint brought by the
Plaintiffs on behalf of themselves and proposed class and
subclasses of purchasers and users of SoClean's ozone cleaning
devices (the "SoClean Devices"), which are used to clean Continuous
Positive Airway Pressure (CPAP), Bi-Level Positive Airway Pressure
(BiPAP) devices, and mechanical ventilators manufactured by Philips
(the "Philips Devices").
The Philips Devices contain polyester-based polyurethane sound
abatement foam ("PE-PUR Foam"). The Philips Devices are commonly
used to treat sleep apnea (CPAP and BiPAP) and respiratory failure
(ventilators). In general, Philips Devices blow air into patients'
airways. CPAP and BiPAP machines are intended for daily use, and
ventilators are used continuously while needed. Without these
devices, some patients may experience severe symptoms, including
heart attack, stroke, and death by asphyxiation.
On April 26, 2021, Philips made a public announcement disclosing it
had determined there were risks that the PE-PUR Foam used in
certain Philips Devices it manufactured may degrade or off-gas
under certain circumstances.
On June 14, 2021, Philips issued a recall (the "Recall Notice") in
the United States of its Philips Devices containing PE-PUR Foam,
because Philips had determined that (a) the PE-PUR Foam was at risk
for degradation into particles that may enter the devices' pathway
and be ingested or inhaled by users, and (b) the PE-PUR Foam may
off-gas certain chemicals during operation. The Philips further
disclosed the potential risks created by the degradation and
off-gassing include "headache, irritation, inflammation,
respiratory issues, hypersensitivity, nausea/vomiting, and possible
toxic and carcinogenic effects."
The Plaintiffs seek to recover damages based on, inter alia,
SoClean's misrepresentations, omissions, and breaches of state
consumer protection laws in connection with its manufacture,
marketing, and sales of the SoClean Devices on behalf of themselves
and the proposed Class Members.
In addition, the Plaintiffs seek medical monitoring damages for
users of the SoClean Devices, who are at risk of suffering from
serious injury, including irritation (skin, eye, and respiratory
tract), inflammatory response, headache, asthma, adverse effects to
other organs (e.g., kidneys and liver) and toxic carcinogenic
affects, added the suit.
CPAP therapy is a common nonsurgicaltreatment primarily used to
treat sleep apnea. CPAP therapy typically involves the use of a
hose and a nasal or facemask device that delivers constant and
steady air pressure to an individual's throat to help individuals
breathe.
Sleep apnea is a common sleep disorder characterized by repeated
interruptions in breathing throughout an individual's sleep cycle.
These interruptions, called "apneas," are caused when the soft
tissue in an individual's airway collapses. The airway collapse
prevents oxygen from reaching the individual's lungs which can
cause a buildup of carbon dioxide.
BiPAP therapy is a common alternative to CPAP therapy for treating
sleep apnea. Similar to CPAP therapy, BiPAP therapy is nonsurgical
and involves the use of a nasal or facemask device to maintain air
pressure in an individual's airway.
Philips developed, marketed, and sold a variety of CPAP and BiPAP
respirator devices and mechanical ventilators under its "Sleep &
Respiratory Care" segment of its business designed to assist
individuals with a number of sleep, breathing, and respiratory
conditions, including obstructive sleep apnea, central sleep apnea,
complex sleep apnea syndrome, and Chronic Obstructive Pulmonary
Disease ("COPD"), as well as to assist those individuals requiring
invasive and non-invasive ventilators for acute and sub-acute
hospital environments. Philips's CPAP and BiPAP respirator devices
and its mechanical ventilators typically cost hundreds, if not
thousands, of dollars. Philips has sold millions of these devices
in the United States.[BN]
The Plaintiffs are represented by:
Matthew V. Burrows, Esq.
GALLAGHER, CALLAHAN &
GARTRELL, P.C.
214 North Main Street
Concord, NH 03301
Telephone: (603) 545-3643
Facsimile: (603) 224-7588
E-mail: burrows@gcglaw.com
- and -
Gary E. Mason, Esq.
Gary M. Klinger, Esq.
MASON LIETZ & KLINGER LLP
5101 Wisconsin Avenue NW, Suite 305
Washington, D.C. 20016
Telephone: (202) 429-2290
Facsimile: (202) 429-2294
E-mail: gmason@masonllp.com
gklinger@masonllp.com
- and -
Jonathan Shub, Esq.
Kevin Laukaitis, Esq.
SHUB LAW FIRM LLC
134 Kings Hwy E., Fl. 2
Haddonfield, NJ 08033
Telephone: (856) 772-7200
E-mail: jshub@shublawyers.com
klaukaitis@shublawyers.com
- and -
Jonathan M. Jagher, Esq.
FREED KANNER LONDON
& MILLEN LLC
923 Fayette Street
Conshohocken, PA 19428
Telephone: (610) 234-6486
E-mail: jjagher@fklmlaw.com
SONY INTERACTIVE: Majo Slams Gender Discrimination in Workplace
---------------------------------------------------------------
Emma Majo, individually and on behalf of all others similarly
situated, Plaintiff, v. Sony Interactive Entertainment LLC,
Defendant, Case No. 21-cv-09054 (N.D Cal., November 22, 2021),
seeks declaratory judgment that Sony has engaged in systemic gender
discrimination against female employees, permanent injunction
against such continuing discriminatory conduct, injunctive relief
that effects a restructuring of Sony's policies, practices and
procedures for promoting and awarding compensation to female
employees, equitable relief that effects a restructuring of Sony's
compensation system so female employees receive the compensation
they would have been paid in the absence of Sony's alleged
discrimination, back pay, front pay, reinstatement and other
equitable remedies necessary, compensatory and punitive damages to
deter similar discriminatory practices in the future, and
attorneys' fees, costs and expenses pursuant to the Fair Labor
Standards Act of 1938, as amended by the Equal Pay Act of 1963
(denial of equal pay for equal work), the California Equal Pay Act
and the California Business and Professions Code.
Sony, formerly known as Sony Computer Entertainment, operateS in
the consumer technology industry and is headquartered in Tokyo.
Majo was an employee of Sony Computer Entertainment America, the
America's regional office, regional HQ in San Mateo. Global offices
and Sony companies merged to become Sony Interactive Entertainment
in April 2016, with global headquarters in San Mateo.
Majo claims that she lost her job and was terminated because she is
female and because she spoke up about discrimination against
females. [BN]
Plaintiff is represented by:
Stephen Noel Ilg, Esq.
George L. Lin, Esq.
ILG Legal Office, P.C.
156 South Spruce Ave., Unit 206A
South San Francisco, CA 94080
Tel: (415)580-2574
Fax: (415)735-3454
Email: silg@ilglegal.com
glin@ilglegal.com
SOUTHERN CALIFORNIA: Beltran Labor Suit Goes to S.D. California
---------------------------------------------------------------
The case styled GUILLERMO BELTRAN, LUIS JIMENEZ, FRANK ANICOCHE,
JR., LOUIS DAWKINS, PAGANINI LOUISSAINT, JOSHUA BOLDEN, and RUDY
DELAO, individually and on behalf of all others similarly situated
v. SOUTHERN CALIFORNIA EDISON COMPANY, and DOES 1 through 20,
inclusive, Case No. 37-2021-00044411-CU-OE-CTL, was removed from
the Superior Court of California for the County of San Diego to the
U.S. District Court for the Southern District of California on
November 29, 2021.
The Clerk of Court for the Southern District of California assigned
Case No. 3:21-cv-01995-MMA-WVG to the proceeding.
The case arises from the Defendant's alleged violations of the
California Labor Code.
Southern California Edison Company is an electricity supply
company, headquartered in Rosemead, California. [BN]
The Defendant is represented by:
John Buchanan, Esq.
Amy Gantvoort, Esq.
SCE LAW DEPARTMENT
2244 Walnut Grove Avenue
Rosemead, CA 91770
Telephone: (626) 302-3712
Facsimile: (626) 302-1910
E-mail: john.buchanan@sce.com
amy.gantvoort@sce.com
SOUTHERN FARM: Breach of Contract Judgment in Smith Suit Affirmed
-----------------------------------------------------------------
In the case, Shawn Smith, on behalf of himself and all others
similarly situated, Plaintiff-Appellant v. Southern Farm Bureau
Casualty Insurance Company, Defendant-Appellee, Case No. 20-2486
(8th Cir.), the U.S. Court of Appeals for the Eighth Circuit issued
an order:
a. affirming the judgment of the district court on the breach
of contract claim for violation of Regulation 43;
b. reversing and remanding on the common law breach of
contract claim; and
c. denying the Plaintiff's motion to certify questions to the
Arkansas Supreme Court.
Background
Mr. Smith claims that Farm Bureau undervalued his totaled pickup
truck -- a Ford F-150 -- insured by Farm Bureau. The truck was
totaled in an accident.
The policy said that "for each accident Farm Bureau will pay actual
cash value of loss or damage less your deductible amount." The
policy also said that "actual cash value will include consideration
of fair market value, age, and condition of the item in question at
the time of loss or damage."
To calculate the truck's actual cash value, Farm Bureau used a
valuation report prepared by a third party, Mitchell International.
The report included prices (pulled from dealers' websites) for
three "comparable vehicles" -- 2006 F-150s for sale within 150
miles of Smith's home.
For each comparable vehicle, Mitchell adjusted the dealer's listed
price to account for features -- trim, mileage, and the like --
different from Smith's F-150. Mitchell also applied a "Projected
Sold Adjustment," lowering each comparable vehicle's value by 9% of
the listed price. The report explained that the Projected Sold
Adjustment "reflected consumer purchasing behavior (negotiating a
different price than the listed price)." In other words, Mitchell
assumed that most car buyers pay less than the sticker price.
Mitchell assigned a "market value" to Smith's F-150 based on the
adjusted values for the three comparable vehicles, and Farm Bureau
relied on this when it calculated how much it would pay.
Mr. Smith says that Farm Bureau breached its duty to pay him the
truck's actual cash value. He argues that the Projected Sold
Adjustment was made-up and unrealistic, so Farm Bureau undervalued
his truck.
Mr. Smith filed a class action complaint for breach of contract and
declaratory judgment. His breach of contract claim was based, in
part, on an alleged violation of Arkansas Insurance Rule and
Regulation 43, which he claimed was incorporated into the policy.
The district court granted Farm Bureau's motion to dismiss for
failure to state a claim, holding that Regulation 43 was not part
of the policy. Smith filed a motion to clarify whether the Order
also disposed of the common law breach of contract theory. The
district court dismissed the motion in a one-sentence minute
order.
On appeal, Smith argues that the district court improperly
dismissed his case by incorrectly applying Arkansas law and by
failing to address his common law breach of contract claim. He says
that although his complaint included only one breach of contract
count, he alleged two different theories: (1) that Farm Bureau
breached a duty established by Arkansas Insurance Rule and
Regulation 43, which is incorporated into the contract under
Arkansas law and the policy's "Conformity Clause"; and (2) that
Farm Bureau breached ifocuts contractual obligation to pay actual
cash value by applying the Projected Sold Adjustment to the listed
price of comparable vehicles, resulting in a lower fair market
value.
Discussion
A.
The first question is whether Arkansas Insurance Rule and
Regulation 43 is incorporated into the policy. If it is, a
violation of the regulation is also a breach of contract. Smith's
first theory is that Regulation 43 is automatically incorporated
into the policy, based on the "general rule" that a statute
governing insurance coverage becomes part of policies affected by
it. The Eighth Circuit already held that Regulation 43 does not
create a private right of action and is not automatically
incorporated into Arkansas insurance policies.
Mr. Smith's second theory is that the policy's "Conformity Clause"
incorporates Regulation 43 into the policy. The Conformity Clause
limits its application to (1) policy terms or conditions that (2)
conflict with state law.
So the Eighth Circuit must focus on the policy terms, not the
challenged practice. It finds that the regulation is more specific
about what insurers should disclose about their actual cash value
calculations, but it does not say that insurers can't consider the
factors mentioned in the policy. And other parts of the same
section suggest that insurers should use a car's condition and
market value to determine actual cash value. There is no conflict
between the policy term and Regulation 43. Because the Conformity
Clause isn't triggered, it cannot operate to incorporate Regulation
43 into the policy.
B.
Mr. Smith argues that his complaint also alleges a common law
breach of contract claim. The district court thought Smith's breach
of contract claim was based only on Regulation 43. The complaint is
not a model of clarity, but a fair read shows that Smith made two
distinct breach of contract theories. Although it lists only one
breach of contract count, it discusses both Farm Bureau's alleged
failure to base its payment on "fair market value" (policy language
that is not in Regulation 43) and its failure to use "measurable,
discernible, itemized and specified" deductions (Regulation 43
language).
So the Eighth Circuit analyzes his common law breach of contract
theory to see if it should have survived the motion to dismiss,
taking factual allegations as true. It explains that the elements
of a common law breach of contract claim in Arkansas are: (1) an
enforceable contract exists, (2) the defendant has a duty under the
contract, (3) the defendant violated that duty, and (4) the
plaintiff was damaged. Farm Bureau does not challenge the
contract's existence or enforceability.
Under the policy, Farm Bureau had a duty to pay the "actual cash
value" of Smith's F-150, based on "consideration of the truck's
fair market value, age, and condition at the time of loss." The
Complaint says that Farm Bureau breached its duty to consider the
truck's fair market value because it based its valuation on "values
of comparable vehicles that have been artificially reduced by an
unjustified 'Projected Sold Adjustment' that is (a) arbitrary, and
(b) contrary to industry practices and consumer experiences (and
therefore not reflective of the vehicle's fair market value)."
To support this, Smith alleges that "a 9% reduction on a used
vehicle is not typical and does not reflect market realities," and
that dealers' actual practice is not to inflate prices above market
value because of the "intense competition in the context of
internet pricing and comparison shopping." If this is true, then
Farm Bureau did not consider the truck's fair market value; it
considered an artificially lower value, in breach of its
contractual duty, so Smith stated a claim for breach of contract
based on the policy language.
Based on its review of the record, and accepting the Plaintiff's
allegations as true, the Eighth Circuit believes that Smith has
stated a plausible claim. It does not opine on the ultimate merits
of his claim.
C.
Finally, Smith asked this Court to certify two questions to the
Arkansas Supreme Court:
(i) Whether under Arkansas law, Arkansas Insurance Rule and
Regulation 43, which sets forth the minimum standards for
determining a total loss vehicle's actual cash value, can serve as
a basis for construing the insurance policy term actual cash value,
where that term was undefined in the policy itself; and
(ii) Whether, under Arkansas law, an insurance contract's
conformity clause, i.e. a clause stating that the insurance
policy's provisions will be amended to conform with applicable laws
of the State of Arkansas, can serve as a basis for reforming the
insurance policy term actual cash value, so that it conforms with
the minimum standards for adjusting total loss claims as expressed
under Arkansas Insurance Rule and Regulation 43.
Because the issues before it are resolved by existing law and the
policy, the Eighth Circuit declines to certify to the Arkansas
Supreme Court.
Disposition
The Eighth Circuit agrees that the Arkansas regulation that Farm
Bureau allegedly violated is not incorporated into his policy, so
Smith can't use it as the basis for a breach of contract claim. But
because he also states a breach of contract claim based on the
policy language, it reverses in part.
Accordingly, the Eighth Circuit affirmed the judgment of the
district court on the breach of contract claim for violation of
Regulation 43, and reverses and remands on the common law breach of
contract claim. It denies Smith's motion to certify questions to
the Arkansas Supreme Court.
A full-text copy of the Court's Nov. 19, 2021 Order is available at
https://tinyurl.com/yc3jjxc6 from Leagle.com.
SOUTHWEST GAS: Tender Offer Lacks Info, City Pension Alleges
------------------------------------------------------------
CITY PENSION FUND FOR FIREFIGHTERS AND POLICE OFFICERS IN THE CITY
OF MIAMI BEACH, individually and on behalf of all others similarly
situated, Plaintiff v. ROBERT L. BOUGHNER; JOSE A. CARDENAS;
STEPHEN C. COMER; JOHN P. HESTER; JANE LEWIS-RAYMOND; ANNE L.
MARIUCCI; MICHAEL J. MELARKEY; A. RANDALL THOMAN; THOMAS A. THOMAS;
LESLIE T. THORNTON; and SOUTHWEST GAS HOLDINGS, INC., Defendants,
Case No. 2021-0990 (Del. Ch., Nov. 18, 2021) alleges breach of
fiduciary duty to the Plaintiff and the Class in relation to the
Tender Offer of Icahn Enterprises L.P.
According to the complaint, Icahn Enterprises L.P. ("Icahn
Enterprises") has launched a hostile tender offer to acquire
Southwest Gas for $75 per share (the "Tender Offer" or "Offer").
Expressly relying on inadequacy opinions (the "Inadequacy
Opinions") from Lazard Frères & Co. LLC ("Lazard") and Moelis &
Company LLC ("Moelis"), the Southwest Gas Board is recommending
that Company stockholders reject the Tender Offer.
Southwest Gas stockholders face a critical decision: whether to (a)
tender their shares in support of the Offer, which would provide
stockholders with a premium to the Company's current stock price or
(b) accept the Board's recommendation that they ultimately will do
better by rejecting the Tender Offer.
In alleged breach of their fiduciary duties, however, the Board has
declined to provide the requisite "fair summary" of the analysis
underlying the Inadequacy Opinions on which the Board's
recommendation rests. The Board's paternalistic "trust us" approach
is currently depriving Southwest Gas stockholders of their
fundamental right to make an informed decision whether to support
the Tender Offer.
Southwest Gas Holdings, Inc. operates as a holding company. The
Company, through its subsidiaries, provides natural gas operation,
construction, and distribution services. Southwest Gas Holdings
serves customers in North America. [BN]
The Plaintiff is represented by:
Gregory V. Varallo, Esq.
BERNSTEIN LITOWITZ BERGER
& GROSSMANN LLP
500 Delaware Avenue, Suite 901
Wilmington, DE 19801
Telephone: (302) 364-3601
-and-
Mark Lebovitch, Esq.
Daniel E. Meyer, Esq.
Joseph W. Caputo, Esq.
BERNSTEIN LITOWITZ BERGER
& GROSSMANN LLP
1251 Avenue of the Americas
New York, NY 10020
Telephone: (212) 554-1400
-and-
Jeremy S. Friedman, Esq.
David F.E. Tejtel, Esq.
FRIEDMAN OSTER &
TEJTEL PLLC
493 Bedford Center Road, Suite 2D
Bedford Hills, NY 10507
Telephone: (888) 529-1108
SOUTHWESTERN & PACIFIC: Court Wants More Briefing on Arredondo Deal
-------------------------------------------------------------------
In the case, ALICIA ARREDONDO, Plaintiff v. SOUTHWESTERN & PACIFIC
SPECIALTY FINANCE, INC., dba Check (Doc. 'N Go of California,
Defendant, Case No. 1:18-cv-01737-DAD-SKO (E.D. Cal.), Judge Dale
A. Drozd of the U.S. District Court for the Eastern District of
California issued an Order directing the filing of supplemental
briefing.
The matter is before the Court on Plaintiff Arredondo's motion for
preliminary approval of the parties' class action settlement.
Judge Drozd directed the parties to file supplemental briefing or
declarations addressing the following issues:
1. A clarification as to the correct class period. The
Plaintiff's pending motion for preliminary approval, the proposed
notice to the class members, and the second amended complaint
identify a class period of Feb. 25, 2018 through Dec. 31, 2020, but
the parties' proposed settlement agreement attached as an exhibit
to the pending motion provides for a class period of Feb. 25, 2018
through the date of Preliminary Approval.
2. An explanation of and the authority supporting the breadth
of the class member's release, as provided in the parties' proposed
settlement agreement. In particular, the settlement agreement
provides for the release of claims that are not asserted in the
second amended complaint or even mentioned in the Plaintiff's
pending motion and that do not appear to have been litigated in the
action, including: All claims for expense reimbursements and
failure to provide suitable seating, and claims under two
regulations implementing the Fair Labor Standards Act. In this
regard, Judge Drozd has concerns about the apparent overbreadth of
this release.
3. Judge Drozd also is concerned that the proposed class
notice may not sufficiently inform putative class members as to the
claims that are being released under the proposed settlement
agreement. To address this concern, the parties will file a
proposed amended notice that clearly identifies the claims that are
being released. For example, on page five of the class notice
under, WHAT AM I GIVING UP TO GET A PAYMENT?, the notice lists only
the claims that are asserted in the complaint. Given that the
release of claims is not limited to the claims brought in the
second amended complaint, the notice should reference the
settlement agreement's release provision and provide a link to the
settlement agreement so that a class member can view the release,
including the location within the settlement agreement where the
release provision can be found.
4. Next, Judge Drozd is concerned that the parties did not
comply with the Class Action Fairness Act's (CAFA) notice
requirement. In actions subject to CAFA -- as the Plaintiff's
counsel contends this one is -- the Defendant must serve notice of
the proposed settlement on appropriate state and federal officials,
and the settlement may not be finally approved until 90 days
thereafter.
Accordingly, the parties will file a supplemental brief or
declarations addressing these issues with 14 days from the date of
service of the Order and are directed to attach to their
supplemental briefing as exhibits any proposed amended settlement
agreement and/or class notice.
A full-text copy of the Court's Nov. 23, 2021 Order is available at
https://tinyurl.com/55jxeva5 from Leagle.com.
STAMPS.COM INC: $100MM Class Settlement to be Heard on Jan. 24
--------------------------------------------------------------
Robbins Geller Rudman & Dowd LLP issued this statement regarding
the Stamps.com Securities Settlement:
UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA
MATT KARINSKI, Individually and on Behalf of All Others Similarly
Situated,
Plaintiff,
vs.
STAMPS.COM, INC., et al.,
Defendants.
CLASS ACTION
SUMMARY NOTICE
IF YOU PURCHASED OR ACQUIRED STAMPS.COM INC. ("STAMPS.COM") COMMON
STOCK FROM MAY 3, 2017 THROUGH AND INCLUDING MAY 8, 2019, AND WERE
DAMAGED THEREBY (THE "CLASS"), YOU COULD RECEIVE A PAYMENT FROM A
CLASS ACTION SETTLEMENT. CERTAIN PERSONS ARE EXCLUDED FROM THE
DEFINITION OF THE CLASS AS SET FORTH IN THE STIPULATION OF
SETTLEMENT.
PLEASE READ THIS NOTICE CAREFULLY. YOUR RIGHTS MAY BE AFFECTED BY A
CLASS ACTION LAWSUIT PENDING IN THIS COURT.
YOU ARE HEREBY NOTIFIED, pursuant to Rule 23 of the Federal Rules
of Civil Procedure and Order of the United States District Court
for the Central District of California that the above-captioned
litigation (the "Litigation") has been certified as a class action
and that a Settlement has been proposed for $100,000,000 in cash. A
hearing will be held on January 24, 2022, at 10:00 a.m., before the
Honorable Michael W. Fitzgerald at the United States District Court
for the Central District of California, First Street Courthouse,
350 West First Street, Courtroom 5A, Los Angeles, California 90012,
for the purpose of determining whether: (1) the proposed Settlement
should be approved by the Court as fair, reasonable and adequate;
(2) the proposed Plan of Allocation for distribution of the
Settlement proceeds is fair, reasonable and adequate and therefore
should be approved; and (3) the application of Lead Plaintiff's
counsel for the payment of attorneys' fees and expenses should be
approved.
IF YOU ARE A MEMBER OF THE CLASS DESCRIBED ABOVE, YOUR RIGHTS MAY
BE AFFECTED BY THE SETTLEMENT OF THE LITIGATION, AND YOU MAY BE
ENTITLED TO SHARE IN THE SETTLEMENT FUND. If you have not received
a detailed Notice of Pendency and Settlement of Class Action (the
"Notice") and a copy of the Claim Form, you may obtain a copy of
these documents by contacting the Claims Administrator: Stamps.com
Securities Settlement, c/o Gilardi & Co. LLC, P.O. Box 43315,
Providence, RI 02940-3315. You may also obtain copies of the
Stipulation of Settlement, Notice and Claim Form at
www.StampsSecuritiesSettlement.com.
If you are a Class Member, to be eligible to share in the
distribution of the Net Settlement Fund, you must submit a Claim
Form by mail postmarked no later than February 2, 2022, or submit
it online by that date. If you are a Class Member and do not submit
a valid Claim Form, you will not be eligible to share in the
distribution of the Net Settlement Fund, but you will still be
bound by any judgment entered by the Court in this Litigation
(including the releases provided for therein).
To exclude yourself from the Class, you must submit a written
request for exclusion so that it is received by January 3, 2022, in
accordance with the instructions set forth in the Notice. If you
are a Class Member and do not exclude yourself from the Class, you
will be bound by any judgment entered by the Court in this
Litigation (including the releases provided for therein) whether or
not you submit a Claim Form. If you submit a written request for
exclusion, you will have no right to recover money pursuant to the
Settlement.
Any objection to the proposed Settlement, the Plan of Allocation,
or the fees and expenses application must be filed with the Court
and delivered such that it is received by each of the following no
later than January 3, 2022:
CLERK OF THE COURT
UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA
First Street Courthouse
350 West First Street, Suite 4311
Los Angeles, CA 90012
Lead Counsel:
ROBBINS GELLER RUDMAN & DOWD LLP
ERIC I. NIEHAUS
655 West Broadway, Suite 1900
San Diego, CA 92101
Defendants' Counsel:
KATTEN MUCHIN ROSENMAN LLP
RICHARD H. ZELICHOV
2029 Century Park East,
Suite 2600
Los Angeles, CA 90067
PLEASE DO NOT CONTACT THE COURT, THE CLERK'S OFFICE, DEFENDANTS, OR
DEFENDANTS' COUNSEL REGARDING THIS NOTICE. If you have any
questions about the Settlement, or your eligibility to participate
in the Settlement, you may contact Lead Counsel at the address
listed above or by calling 1-800-449-4900.
DATED: October 14, 2021
BY ORDER OF THE COURT
UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA
STARBUCKS CORPORATION: Faces Oden Suit Over Age Discrimination
--------------------------------------------------------------
MARKEL ODEN, individually and on behalf of all others similarly
situated, Plaintiff v. STARBUCKS CORPORATION, Defendant, Case No.
1:21-cv-04869-AT-WEJ (N.D. Ga., November 29, 2021) is a class
action against the Defendant for violation of the Age
Discrimination in Employment Act of 1967 and the Georgia Age
Discrimination Act.
According to the complaint, the Defendant discriminated against the
Plaintiff and similarly situated older employees by utilizing a
biased recruitment system that deters prospective applicants ages
40 and older from applying for covered positions and implementing a
mandatory early retirement policy.
As a result of Defendant's alleged unlawful and discriminatory
practices, the Plaintiff has suffered loss of income, pain and
suffering and humiliation.
Starbucks Corporation is an American multinational chain of
coffeehouses and roastery reserves headquartered in Seattle,
Washington. [BN]
The Plaintiff is represented by:
Mitchell L. Feldman, Esq.
FELDMAN LEGAL GROUP
6916 W. Linebaugh Ave., Ste. 101
Tampa, FL 33625
Telephone: (813) 639-9366
Facsimile: (813) 639-9376
E-mail: mfeldman@flandgatrialattorneys.com
STATE FARM: Reduces Loss Vehicles' Cash Value, Chadwick Suit Says
-----------------------------------------------------------------
ROSE CHADWICK, individually and on behalf of all others similarly
situated, Plaintiff v. STATE FARM MUTUAL AUTOMOBILE INSURANCE
COMPANY, Defendant, Case No. 4:21-cv-01161-DPM (E.D. Ark., November
29, 2021) is a class action against the Defendant for breach of
contract and declaratory judgment.
The case arises from the Defendant's breach of its insurance
contracts with the Plaintiff and similarly situated insureds in
Arkansas by improperly reducing the actual cash value of insureds'
loss vehicles when adjusting total loss claims. The Defendant used
typical negotiation adjustments instead of using the fair market
price in determining the actual cash value of loss vehicles. These
adjustments are based on the factually erroneous assumption that
insureds would be able to negotiate a reduction in the list price
of comparable used automobiles, which would be highly atypical and
contrary to the modern used car industry's market pricing and
inventory management practices. As a result of the Defendant's
alleged misconduct, the Plaintiff and Class members received an
amount less than the actual cash value required by State Farm's
insurance contracts.
State Farm Mutual Automobile Insurance Company is an automobile
insurance company, headquartered in Bloomington, Illinois. [BN]
The Plaintiff is represented by:
Joseph Henry Bates, III, Esq.
Tiffany Wyatt Oldham, Esq.
Jake G. Windley, Esq.
CARNEY BATES & PULLIAM, PLLC
519 W. 7th St.
Little Rock, AR 72201
Telephone: (501) 312-8500
Facsimile: (501) 312-8505
E-mail: hbates@cbplaw.com
toldham@cbplaw.com
jwindley@cbplaw.com
STRATEGIC DELIVERY: Opposition to Class Cert. Extended to Dec. 13
-----------------------------------------------------------------
In the class action lawsuit captioned as Zambrano, et al. v.
Strategic Delivery Solutions, LLC, et al., Case No.
1:15-cv-08410-ER (S.D.N.Y.), the Hon. Judge Edgardo Ramos entered
an order extending to December 13, 2021, Defendants' deadline to
file an opposition to Plaintiffs' Motion for Conditional
Certification.
The deadline for Plaintiffs' reply brief is extended to December
22, 2021.
The Defendants' counsel says that the Defendants' opposition is due
on December 3, 2021. "This is the first request for an extension of
this deadline. We seek this extension for two reasons. First,
Defendants are in the process of providing Defense Counsel certain
information necessary to Defendants' opposition in this matter."
"However, Thanksgiving-related vacations of certain individuals key
to the information gathering process have resulted in a delay.
Second, our office has been short staffed due to pre-arranged
vacations planned around our office's closure on November 25 and
November 26 for the Thanksgiving holiday. The Plaintiffs' Counsel,
Hugh Baran, Esq. consents to this request. Should the Court
determine to grant the instant request, we would also ask that the
deadline for Plaintiffs reply be extended to Wednesday, December
22, 2021," the counsel adds.
A copy of the Court's order dated Nov. 29, 2021 is available from
PacerMonitor.com at https://bit.ly/3G6h3Zx at no extra charge.[CC]
The Defendants are represented by:
David F. Jasinski, Esq.
JASINSKI, P.C.
2 Hance Avenue, 3 rd floor
Tinton Falls, NJ 07724
Telephone: (973) 824-9700
Facsimile: (732) 842-1805
SUNDA NASHVILLE: Tamminga Suit Alleges Unpaid Wages for Servers
---------------------------------------------------------------
CHRISTOPHER TAMMINGA, individually and on behalf of all others
similarly situated, Plaintiff v. SUNDA NASHVILLE, LLC and SUNDA
NASHVILLE MANAGEMENT, LLC, Defendants, Case No. 3:21-cv-00889 (M.D.
Tenn., December 1, 2021) is a class action against the Defendants
for their failure to pay the Plaintiff and similarly situated
tipped employees minimum wages and overtime wages for all hours
worked in violation of the Fair Labor Standards Act.
The Plaintiff has been employed as a server and bartender at Sunda
New Asian in Nashville, Tennessee since approximately March 2021.
Sunda Nashville, LLC is an owner and operator of a restaurant known
as Sunda New Asian, located at 592 12th Avenue South, Nashville,
Tennessee.
Sunda Nashville Management, LLC is an owner and operator of a
restaurant known as Sunda New Asian, located at 592 12th Avenue
South, Nashville, Tennessee. [BN]
The Plaintiff is represented by:
Charles P. Yezbak, Esq.
N. Chase Teeples, Esq.
YEZBAK LAW OFFICES PLLC
2002 Richard Jones Road, Suite B-200
Nashville, TN 37215
Telephone: (615) 250-2000
Facsimile: (615) 250-2020
E-mail: yezbak@yezbaklaw.com
teeples@yezbaklaw.com
- and –
Patrick Barrett, Esq.
BARRETT LAW OFFICE, PLLC
4205 Hillsboro Pike, Suite 303
Nashville, TN 37215
Telephone: (615) 463-4000
E-mail: pbarrett@barrettlawofficetn.com
TEXAS: Court Rules on Objections to Four Orders in Aiello v. TDCJ
-----------------------------------------------------------------
Judge Nelva Gonzales Ramos of the U.S. District Court for the
Southern District of Texas, Corpus Christi Division, entered an
Order on objections to U.S. Magistrate Judge Jason B. Libby's
determinations in the case, DANIEL AIELLO, Plaintiff v. BRIAN
COLLIER, et al., Defendants, Civil Action No. 2:21-CV-00067 (S.D.
Tex.).
Introduction
Plaintiff Aiello filed the action against Brian Collier, the
Executive Director of the Texas Department of Criminal Justice
(TDCJ) in his official capacity, complaining of the prison policy
requiring him to wear his hair cut short. He claims that his
religion requires that he wear his hair long. He asserts claims for
(a) violation of his right to equal protection under the Civil
Rights Act, 42 U.S.C. Section 1983; and (b) for discrimination
under the Religious Land Use and Institutionalized Persons Act
(RLUIPA), 42 U.S.C. Section 2000cc, et seq.
Before the Court are four matters which U.S. Magistrate Judge Libby
has addressed and the Plaintiff's objections.
Discussion
I. Nondispositive Order Denying Judicial Notice
The Plaintiff's first objection challenges a nondispositive order.
The Plaintiff's complaint was subject to initial screening pursuant
to the Prison Litigation Reform Act (PLRA). On May 17, 2021,
Magistrate Judge Libby issued a memorandum and recommendation
(M&R-1), recommending that the Court retains the Plaintiff's equal
protection and RLUIPA challenges to the TDCJ hair policy. Before
the Court had an opportunity to adopt or reject the recommendations
the Plaintiff filed a "Motion of Judicial Notice," suggesting that
M&R-1 contained factfindings in his favor. Because the Defendant
did not file an objection to M&R-1 within the time for doing so,
the Plaintiff claimed not only that his claims survived initial
screening, but that he had prevailed on the merits by default and
that the Magistrate Judge should take judicial notice of that
fact.
On July 12, 2021, Magistrate Judge Libby issued a nondispositive
order, denying judicial notice and explaining that the Court would
apply appropriate standards of review and rules of procedure before
the Plaintiff would be entitled to relief on the merits and that
judicial notice was not appropriate under the circumstances.
On July 23, 2021, the Plaintiff timely filed objections to the
order. His objections restate the motion with greater emphasis on
the time deadline for objections to M&R-1 and the Defendant's
failure to object. As such the objections are not proper. They do
not focus the Court on a material factfinding or legal conclusion
in the Magistrate Judge's order that is challenged as erroneous.
Additionally, M&R-1 did not make any factfindings in favor of the
Plaintiff's claims on their merits. It only stated that the claims
were not subject to immediate dismissal as frivolous, malicious, or
failing to state a claim upon which relief can be granted. The
allegations (not the evidence) were adequate to allow the Plaintiff
to go forward with discovery and a trial at which he must present
evidence.
Further, at the time the Magistrate Judge issued M&R-1, the
Defendant was not a party to the case. The order requiring that the
Defendant be served was not entered until after the M&R was issued.
And the Defendant did not file an answer, entering his first
appearance in the case, until June 29, 2021 -- well after any
deadline for objecting to M&R-1. Not only were there no binding
factfindings in M&R-1, but the Defendant was not a party and not
bound by the screening recommendation in M&R-1.
Regarding the Magistrate Judge's order on the Plaintiff's motion
for judicial notice, Judge Ramos finds that there are no clearly
erroneous findings of fact and the decision is not contrary to law.
She overruled the Plaintiff's objections and affirms the Magistrate
Judge's order denying the motion seeking judicial notice.
II. Two Memoranda and Recommendations to Deny Motions on the
Merits
On Aug. 5, 2021, the Plaintiff filed a document entitled,
"Plaintiff's - Dispositive Motion." In that motion, he claims that
he should prevail, analogizing his case to that of Goodman v.
Davis, No. 2:12-cv-166 (S.D. Tex. 2019), in which prisoners who
practice a Native American faith tradition succeeded, under RLUIPA,
in enforcing a right to wear long hair during TDCJ incarceration.
The Plaintiff asserts that he is entitled to the same right under
RLUIPA and that any violation of that right is also an equal
protection violation because he is being discriminated against on
the basis of his nationality or religion.
On Aug. 31, 2021, Magistrate Judge Libby issued a memorandum and
recommendation (M&R-2), construing the motion as one for summary
judgment under Federal Rule of Civil Procedure 56 and recommending
its denial without prejudice as premature and as unaccompanied by
evidence to support the necessary factfindings. The Plaintiff did
not object to M&R-2. After due consideration, Judge Ramos now
adopts the findings and conclusions of M&R-2 and the motion is
denied without prejudice.
Instead of objecting to M&R-2, on Sept. 16, 2021, the Plaintiff
filed a second "Plaintiff's Dispositive Motion," making the same
arguments and again failing to support them with evidence. On Sept.
17, 2021, Magistrate Judge Libby issued a memorandum and
recommendation (M&R-3), again construing the motion as one for
summary judgment and recommending denial without prejudice because
the motion is premature and is not accompanied by evidence. The
Plaintiff objected to M&R-3 on a number of grounds.
Having reviewed the findings of fact, conclusions of law, and
recommendations set forth in M&R-3, as well as the Plaintiff's
objections, and all other relevant documents in the record, and
having made a de novo disposition of the portions of M&R-3 to which
objections were specifically directed, Judge Ramos, among other
things, overruled the Plaintiff's objections and adopts as her own
the findings and conclusions of the Magistrate Judge. Accordingly,
the Plaintiff's Dispositive Motion is denied.
III. Memorandum and Recommendation to Deny Temporary Injunctive
Relief
On May 6, 2021, the Plaintiff filed a motion for temporary
injunctive relief, seeking an order that the Defendant be enjoined
from enforcing TDCJ's short hair policy against the Plaintiff
pending trial of the matter. The Defendant filed a response on
Sept. 21, 2021. On Oct. 1, 2021, Magistrate Judge Libby issued a
memorandum and recommendation (M&R-4), finding that the Plaintiff
had not met his burden to show the first two of the four
requirements for issuing preliminary injunctive relief. According
to M&R-4, the Plaintiff's arguments, unsupported by evidence, did
not demonstrate a likelihood of success on the merits because he
failed to address all of the elements of his claims. And the
Plaintiff's assertions of irreparable injury were conclusory. M&R-4
thus recommended denial of temporary injunctive relief.
On Oct. 15, 2021, the Plaintiff timely filed his objections. He
neither addresses the missing elements of his claims nor explains
how the Magistrate Judge erred in his analysis when determining the
likelihood of success at trial. Instead, he rehashes the arguments
in his motion and continues his undue reliance on Goodman v. Davis.
Judge Ramos holds that the objections are therefore insufficient to
show any error in the findings of fact or conclusions of law in
M&R-4.
Plaintiff suggests that the burden lies with the Defendant "to
provide proof this injustice is not unlawful." As the Magistrate
Judge correctly observed, the burden of proof on all four elements
supporting injunctive relief lies with the Plaintiff. The Plaintiff
has not disputed this proposition of law and has not supplied any
authorities to the contrary.
Having reviewed the findings of fact, conclusions of law, and
recommendations set forth in M&R-4, as well as the Plaintiff's
objections, and all other relevant documents in the record, and
having made a de novo disposition of the portions of M&R-4 to which
objections were specifically directed, Judge Ramos overruled the
Plaintiff's objections and adopted as her own the findings and
conclusions of the Magistrate Judge. Accordingly, the Plaintiff's
motion for temporary injunctive relief is denied.
A full-text copy of the Court's Nov. 23, 2021 Order is available at
https://tinyurl.com/cxhvwzxz from Leagle.com.
THERE TO HERE: Underpays Restaurant Staff, Arellano Suit Claims
---------------------------------------------------------------
RICARDO ARELLANO, RENE GARCIA, and CIPRIANO COJ, individually and
on behalf of all others similarly situated, Plaintiffs v. THERE TO
HERE LLC (DBA SWEET SCIENCE), JAMES FREEMAN, MATTHEW MADDY, DAMON
GORTON, Defendants, Case No. 1:21-cv-06689 (E.D.N.Y., December 1,
2021) is a class action against the Defendants for violations of
the Fair Labor Standards Act and the New York Labor Law including
failure to pay overtime wages, failure to pay spread-of-hours
compensation, failure to maintain accurate recordkeeping, and
unlawful wage deductions.
The Plaintiffs were employed as cooks and dishwashers at Sweet
Science located in Brooklyn, New York.
There To Here LLC, doing business as Sweet Science, is a restaurant
owner and operator, with its headquarters located at 135 Graham
Ave., Brooklyn, New York. [BN]
The Plaintiff is represented by:
Lina Stillman, Esq.
STILLMAN LEGAL, P.C.
42 Broadway, 12th Floor
New York, NY 10004
Telephone: (212) 203-2417
TOTAL CASH: Sends Unsolicited Telemarketing Calls, Issel Alleges
----------------------------------------------------------------
AXEL ISSEL, individually and on behalf of all others similarly
situated, Plaintiff v. TOTAL CASH HOME BUYERS, LLC, Defendant, Case
No. CACE-21-021324 (Fla. Cir. Ct., 17th Jud. Cir., Broward Cty.,
December 1, 2021) is a class action against the Defendant for
violation of the Florida Telephone Solicitation Act.
According to the complaint, the Defendant sent numerous telephonic
calls to the Plaintiff's cellular telephone number in an attempt to
promote its goods and services without obtaining prior express
written consent. The Defendant's alleged telephonic sales calls
have caused the Plaintiff and Class members harm, including
violations of their statutory rights, statutory damages, annoyance,
nuisance, and invasion of their privacy.
Total Cash Home Buyers, LLC is a real estate company with its
primary place of business and headquarters in Pembroke Pines,
Florida. [BN]
The Plaintiff is represented by:
Andrew J. Shamis, Esq.
Garrett O. Berg, Esq.
SHAMIS & GENTILE P.A.
14 NE 1st Ave., Suite 705
Miami, FL 33132
Telephone: (305) 479-2299
E-mail: ashamis@shamisgentile.com
gberg@shamisgentile.com
- and –
Scott Edelsberg, Esq.
EDELSBERG LAW P.A.
20900 NE 30th Ave., Suite 417
Aventura, FL 33180
Telephone: (305) 975-3320
E-mail: scott@edelsberglaw.com
TOTTINI BROOKLYN: Underpays Salesclerks, Pizarro Suit Alleges
-------------------------------------------------------------
CARMEN PIZARRO, individually and on behalf of all others similarly
situated, Plaintiff v. TOTTINI BROOKLYN LLC (DBA TOTTINI), MELISSA
VAN FLANDERN, MICHAEL FAIGY, and MICHAEL YOSSI, Defendants, Case
No. 1:21-cv-06670 (E.D.N.Y., December 1, 2021) is a class action
against the Defendants for violations of the Fair Labor Standards
Act and the New York Labor Law including failure to pay minimum
wages, failure to pay overtime wages, failure to pay
spread-of-hours compensation, failure to comply with recordkeeping
requirements, and failure to provide accurate wage statements.
The Plaintiff was employed by the Defendants as a salesclerk in
Brooklyn, New York from October 1, 2019 until October 19, 2021.
Tottini Brooklyn LLC is a children's clothing retail company based
in New York, New York. [BN]
The Plaintiff is represented by:
Lina F. Stillman, Esq.
STILLMAN LEGAL P.C.
42 Broadway, 12th Floor
New York, NY 10004
Telephone: (212) 203-2417
TRACE STAFFING: Ct. Clarifies Sched/Discovery Order in Gouldie
--------------------------------------------------------------
In the class action lawsuit captioned as GOULDIE v. TRACE STAFFING
SOLUTIONS LLC, Case No. 5:21-cv-00088 (M.D. Ga.), the Hon. Judge
Tilman E. Self, III entered an order clarifying
scheduling/discovery order as follows:
-- The Scheduling and Discovery Order states that discovery
shall expire on Dec. 22, 2021 or "within 90 days of the
date the Court rules on Plaintiff's Motion for Conditional
Certification, whichever is later."
-- The Court ruled on Plaintiff's Motion to Certify Class on
Oct. 22, 2021, so the discovery period expires on Jan. 20,
2022, and the parties' Dispositive and/or Daubert motions
are due 30 days after the close of discovery.
-- Discovery to be complete by Jan. 20, 2022. Dispositive
and/or Daubert motions due by Jan. 21, 2022.
The suit alleges violation of the Fair Labor Standards Act
involving denial of overtime compensation.
Trace Staffing Solutions operates as an employment recruiting
agency. The Company offers career placement, permanent, and
temporary staffing services.[CC]
TRANSWORLD SYSTEMS: Court Amends Trial & Related Dates in Hoffman
-----------------------------------------------------------------
In the class action lawsuit captioned as ESTHER HOFFMAN, et al., v.
TRANSWORLD SYSTEMS INCORPORATED, et al., Case No. 2:18-cv-01132-TSZ
(W.D. Wash.), the Hon. Judge Thomas S. Zilly entered an order
granting in part and denying in part the Parties' stipulated motion
to continue trial and related dates and amending schedule as
follows:
-- Discovery on class certification issues Dec. 30, 2021
completed by:
-- Any motions related to class Jan. 12, 2022
certification must be filed by
and noted on the motion March 18, 2022
calendar
-- Any opposition to motion for class March 3, 2022
certification must be filed by:
-- Plaintiffs' amended response to Feb. 2, 2022
Defendant Transworld Systems'
motion for summary judgment
must be filed by:
-- Disclosure of expert testimony Feb. 24, 2022
under FRCP 26(a)(2):
-- All motions related to discovery March 14, 2022
must be filed by:
-- All remaining discovery April 11, 2022
completed by
The Defendant Transworld Systems' motion for summary judgment
renoted to March 18, 2022. All other terms and conditions, and all
dates and deadlines not inconsistent herewith, contained in the
Minute Order Setting Trial Date and Related Dates, shall remain in
full force and effect, says Judge Zilly.
Transworld Systems provides receivables collection and management
services.
A copy of the Court's order dated Nov. 30, 2021 is available from
PacerMonitor.com at https://bit.ly/32SF1JF at no extra charge.[CC]
TULARE COUNTY, CA: Criswell's Bid to File Docs Under Seal Denied
----------------------------------------------------------------
In the case, CHARLES CRISWELL, et al., Plaintiffs v. MICHAEL
BOUDREAUX, in his official capacity as Sheriff of Tulare County,
Defendant, Case No. 1:20-cv-01048-DAD-SAB (E.D. Cal.), Judge Dale
A. Drozd of the U.S. District Court for the Eastern District of
California denies the Defendant's notice of request to file
documents under seal.
The matter is before the Court on the Defendant's notice of request
to file documents under seal. Pursuant to Local Rule 141(c), the
Plaintiffs timely submitted an opposition to the Defendant's
request.
The Defendant seeks to file the following documents under seal: The
Defendant's response to the Plaintiffs' pending motion for final
approval of the parties' class action settlement, and declarations
in support of his response from Lieutenant Javier Martinez,
Lieutenant Jason Villarreal, Assistant Sheriff Mark Gist, Evan
Matshes, Benjamin Mitchell, and Eric Krenz.
The Defendant contends that these documents contain Protected
Health Information ("PHI") of certain inmates in the Tulare County
Jails who submitted declarations in support of the pending motion
for final approval of the settlement agreement and who voluntarily
disclosed their own PHI in those declarations. The documents
"include certain PHI of those inmates solely for the purpose of
responding to the claims asserted by these inmates against the
Defendant."
However, in making his request, Judge Drozd finds that the
Defendant has not even attempted to make the requisite showing
under either the "compelling reasons" or "good cause" standard to
support blanket sealing of these documents, which span nearly 400
pages, rather than targeted redactions of any PHI contained
therein. For example, the Defendant requests to file under seal his
response to the pending motion for final approval -- a motion that
he does not oppose -- "for the purpose of clearing the factual
record," and "so that the Court has a complete picture of the
Defendant's and his command staff's conduct and ongoing efforts to
minimize the risk of COVID-19 infections within the Tulare County
Jails."
The Defendant does not explain why there is "good cause" or
"compelling reasons" to "maintain the secrecy" of any cleared up
factual record or complete picture of his efforts to minimize
COVID-19 in the Jails. Shielding such information from public view
is contrary to the well-established principle that all documents
filed with the Court are presumptively public.
Indeed, in opposing the Defendant's request, the Plaintiffs assert
that the documents "are of tremendous interest to the public" and
"concern the Defendant's response to an outbreak of COVID-19 in the
Tulare County Jails, which has received extensive media coverage."
The Plaintiffs also argue that "it is in the public's interest to
know and understand the Defendant's purported justifications for
his inadequate response to the outbreak."
Having considered the Defendant's request to seal and the
Plaintiffs' opposition thereto, Judge Drozd concludes that the
Defendant has not shown either good cause or compelling reasons to
support allowing defendant to file the requested documents under
seal. Accordingly, he will deny the Defendant's request, without
prejudice.
To the extent the Defendant believes that redacting the documents
is appropriate to maintain the secrecy of PHI, the Defendant may
seek an order authorizing him to file documents with limited
redactions of PHI. Any such request will comply with Local Rule 140
and Judge Drozd's standing orders in civil cases.
Conclusion
For the reasons set forth, Judge Drozd denies the Defendant's
request to file documents under seal. Where such a request to file
under seal is denied, he returns the filing to the party which
sought sealing and does not enter them on the docket.
A full-text copy of the Court's Nov. 19, 2021 Order is available at
https://tinyurl.com/35heczkh from Leagle.com.
UBER TECHNOLOGIES: Bid to Compel Arbitration in Singh Suit Granted
------------------------------------------------------------------
In the cases, JASWINDER SINGH, on behalf of himself and all those
similarly situated, Plaintiff v. UBER TECHNOLOGIES, INC.,
Defendant. JAMES CALABRESE, GREGORY CABANILLAS, and MATTHEW
MECHANIC, individually and on behalf of all those similarly
situated, Plaintiffs v. UBER TECHNOLOGIES, INC., and RASIER, LLC,
Defendants, Case Nos. 16-3044 (FLW), 19-18371 (FLW) (D.N.J.), Judge
Freda L. Wolfson of the U.S. District Court for the District of New
Jersey granted Uber's motion to compel arbitration.
Introduction
Plaintiffs Jaswinder Singh, James Calabrese, Gregory Cabanillas,
and Matthew Mechanic were drivers with the rideshare company Uber
who allege individually, and on behalf of a class of similarly
situated New Jersey drivers, that Uber misclassified them as
independent contractors, thereby depriving them of overtime pay and
other benefits afforded to employees.
Uber moves to compel arbitration under the Federal Arbitration Act
("FAA") pursuant to a clause in Plaintiffs' contracts. The
Plaintiffs argue that arbitration is inappropriate because they
fall within an exemption to the FAA as transportation workers who
move riders across state lines. Uber responds that the Plaintiffs
do not belong to such a class of workers because interstate rides
constitute a small fraction of all rides, and in any event, the
Court should order arbitration under the New Jersey Arbitration Act
("NJAA"), which embodies the same pro-arbitration policy as the FAA
without the exemptions.
Background
Uber is a billion-dollar technology company whose ridesharing app
enables drivers to connect with riders, based on location, at the
click of a button. Def. Statement of Material Facts I ("SUMF"). The
Plaintiffs are gig-economy workers who used the Uber app to provide
rides between 2014 and 2020. They allege that Uber must reimburse
certain business expenses (e.g., the cost of maintaining cars, gas,
insurance, and phone/data expenses), comply with guaranteed minimum
wage laws, and pay overtime, as state law requires for employees.
The present dispute centers on the validity of an arbitration
provision in their contracts.
Drivers who sign up with Uber must accept the company's Technology
Services Agreement ("TSA") before completing any rides. Uber
presents the TSA to drivers as soon as they login to the app by
populating a "TERMS AND CONDITIONS" screen with a hyperlink.
Clicking the hyperlink opens the TSA.
After drivers scroll through the document for as long as they need
to review it, the app prompts them to click "YES, I AGREE." As this
screen makes clear, "by clicking below, you represent that you have
reviewed all the documents above and that you agree to all the
contracts above." Once a driver indicates agreement, the app
generates another screen, which reads: "PLEASE CONFIRM THAT YOU
HAVE REVIEWED ALL THE DOCUMENTS AND AGREE TO ALL THE NEW
CONTRACTS." At this point, drivers may select buttons reading "NO"
or "YES, I AGREE."If drivers select yes, Uber stores the executed
TSA in an online portal, reviewable to this day.
Singh joined Uber on June 21, 2014. Mechanic joined on Dec. 11,
2015. Calabrese joined on June 8, 2017. Cabanillas joined on Aug.
18, 2017. Each driver accepted the TSA as a condition of signing
up.
The applicable version of the TSA contains an arbitration provision
visible on the first page. The arbitration provision specifies the
Federal Arbitration Act ("FAA") as the governing law and contains a
class action waiver. The arbitration provision also contains a
delegation clause, which encompasses a wide range of potential
disputes between drivers and Uber, including threshold questions
such as whether a particular dispute is arbitrable. At the same
time, the TSA offers an opt-out provision, which drivers may
exercise for up to 30 days after accepting the TSA by emailing
Uber. Though thousands of drivers exercised their opt-out rights,
the Plaintiffs did not.
While state law forms the substantive basis for most of the
Plaintiffs' claims, the present arbitration dispute arises under
the FAA. Congress enacted the FAA in 1925 "in response to a
perception that courts were unduly hostile to arbitration." The
statute provides that "agreements to arbitrate are 'valid,
irrevocable, and enforceable, save upon such grounds as exist at
law or in equity for the revocation of any contract.'" In this
sense, the FAA places arbitration agreements on equal footing with
all other contracts and requires courts to enforce them according
to their terms.
Notwithstanding the arbitration provision in the TSA and the
federal policy in the FAA, Singh filed suit in the Court alleging
that Uber misclassified him as an independent contractor (a status
conferring flexibility but little security) and owes, inter alia,
overtime pay plus reimbursement for business expenses under the
Fair Labor Standards Act ("FLSA"), the New Jersey Hour and Wage
Law, and the New York Labor Law.
Uber moved to dismiss and to compel arbitration pursuant to the
TSA. Singh opposed, arguing that he fell under the Section 1
exemption described above for transportation workers on par with
seaman and railroad employees. Judge Wolfson granted Uber's motion.
In doing so, she found the TSA's arbitration provision to be valid
and enforceable. She also found that the TSA's class waiver
provision is permissible under the National Labor Relations Act
("NLRA") because Singh could opt out within thirty days without
consequence, and that the delegation clause is lawful under
Rent-A-Center. Further, Judge Wolfson construed the FAA to exempt
only transportation workers engaged in moving goods across state
lines, not people, and ordered the parties to arbitrate. She did
not address any state law questions.
On appeal, the Third Circuit vacated and remanded. Fundamentally,
the court held that the FAA's exemption for transportation workers
is not limited to those engaged in moving interstate goods, but may
encompass those who move interstate passengers, like Uber drivers,
or whose work is "so closely related to interstate commerce as to
be in practical effect part of it." It upheld my determination that
the arbitration provision (including the delegation clause) is
valid and enforceable, and that the class waiver is permissible,
while declining to reach other issues raised by the parties, such
as state law arbitrability questions, to the extent that they "are
contingent on the FAA's applicability."
Plaintiffs Calabrese, Cabanillas, and Mechanic subsequently filed a
separate suit seeking unpaid wages and unreimbursed expenses under
the FLSA, the New Jersey Wage and Hour Law, and the New York Labor
Law. When Uber moved to dismiss, Judge Wolfson noted identical
issues to Singh's case, terminated the motion, and ordered limited
discovery on the question whether the Plaintiffs are exempt under
the FAA. Discovery has closed, and Uber has renewed dismissal
motions in both cases. As before, the Plaintiffs seek to avoid
arbitration under the FAA based on the residual clause, compel Uber
to comply with state labor laws, and classify them as employees not
independent contractors.
Discussion
Since Judge Wolfson's decision in 2019, many district courts have
decided similar FAA cases based on varying levels of factual
development. The majority view is that rideshare drivers nationwide
do not engage in interstate commerce and are not covered by the
residual clause in the FAA. These courts reason that nationwide
rideshare drivers complete a small percentage of cross-border rides
(e.g., just over 2%), and their overall driving activities
demonstrate that they serve a fundamentally local transportation
function.
The majority view culminated in a recent Ninth Circuit decision,
where a court of appeals directly addressed the issue for the first
time, found in favor of Uber, and compelled arbitration -- Capriole
v. Uber Techs., Inc., 7 F.4th 854 (9th Cir. 2021). Specifically,
the Ninth Circuit found Uber drivers nationwide not to be "engaged
in interstate commerce" in the sense of the FAA because "Uber trips
are often short and local" as well as "primarily intrastate in
nature," crossing state lines just a fraction of the time largely
as a result of geography, they "only infrequently involve a trip to
a transportation hub" such as an airport, and interstate movement
"cannot be said to be" central to what drivers do.
A few months later, the First Circuit rejected the same twin
arguments as the Ninth Circuit, finding that drivers do not "fit
within the section 1 exemption just because some of them
occasionally transport passengers across state lines" and because
they occasionally transport passengers to Logan International
Airpor -- Cunningham v. Lyft, Inc., Nos. 20-1373, 20-1379, 20-1544,
20-1549, 20-1567, 2021 WL 5149039, at *3 (1st Cir. Nov. 5, 2021).
According to that court, drivers are "among a class of workers
engaged primarily in local intrastate transportation, some of whom
infrequently find themselves crossing state lines, and are thus
fundamentally unlike seamen and railroad employees when it comes to
their engagement in interstate commerce."
Two district courts have bucked this trend, holding that rideshare
drivers are transportation workers engaged in interstate commerce
under the FAA -- Islam, 524 F.Supp.3d 338; Haider v. Lyft, Inc.,
No. 20-2997, 2021 WL 1226442 (S.D.N.Y. Mar. 31, 2021). What matters
to these courts is that rideshare drivers nationwide complete tens
of millions of interstate trips per year, regardless of whether
that equals just 2% of all rides, and frequently pick up and drop
off passengers at airports.
Notwithstanding the limited momentum (in the Southern District of
New York) for the Plaintiffs' theory, Judge Wolfson agrees with the
majority view that nationwide rideshare drivers are not a class of
transportation workers engaged in interstate commerce.
In sum, Judge Wolfson finds that nationwide Uber drivers are not
exempt from the FAA, consistent with holdings in virtually every
other court to address the issue, including two circuits. In doing
so, she rejects both pillars of the Plaintiffs' argument: That they
are engaged in interstate commerce because drivers have crossed
state lines 140 million times in 10 years and because 10% of trips
begin or end at an airport.
This data (though certainly true) is not dispositive when viewed
against uncontroverted evidence that such rides constitute just 2%
of all rides, resemble in character the other 98% of rides, and
likely occur due to the happenstance of geography; and that airport
trips are unaffiliated with and independent from the interstate
commerce in which passengers partake once at airports. Uber drivers
nationwide are in the "general business of giving people local
rides, not the particular business of offering interstate
transportation to passengers," unlike railroad workers and seamen,
whose jobs revolve around interstate travel/movement. The FAA
therefore applies and the parties must arbitrate pursuant to the
TSA.
Because she compels arbitration under the FAA and TSA, Judge
Wolfson need not decide the state law issues. In any case, she
holds that state law would furnish an alternative basis to
arbitrate. Notwithstanding the TSA's choice of law clause, a
district court sitting in diversity (such as the Court, assuming
the Plaintiffs are exempt from the FAA) applies the choice of law
rules of the forum state (in the case, New Jersey). Under New
Jersey choice of law rules, "the law of the state which has 'the
most significant relationship' with the transaction would apply."
Again, that is New Jersey, where the Plaintiffs live and work and
where the bulk of the allegations arise. And under New Jersey law,
which does not contain a residual clause exemption, the arbitration
provision in the TSA is lawful and controlling. Accordingly, while
she need not reach the issue, even if the Plaintiffs' contract with
Uber fell outside the FAA, Judge Wolfson would apply New Jersey law
and compel arbitration all the same.
Conclusion
For the foregoing reasons, Judge Wolfson granted Uber's motions and
compelled arbitration under the FAA. In accordance with the Third
Circuit's instruction in Singh, all other issues are reserved for
the arbitrator. The Plaintiffs' motion for class certification is
denied as moot.
A full-text copy of the Court's Nov. 23, 2021 Opinion is available
at https://tinyurl.com/2y4z54m5 from Leagle.com.
UNIFIRST CORP: Court Dismisses Garcia Suit Without Prejudice
------------------------------------------------------------
In the case, JUANA GARCIA, individually and on behalf of all others
similarly situated, Plaintiff v. UNIFIRST CORPORATION, a
Massachusetts corporation; and DOES 1 through 50, inclusive,
Defendants, Case No. 5:21-cv-01796-DSF-SP (C.D. Cal.), Judge Dale
S. Fischer of the U.S. District Court for the Central District of
California granted the Parties' Stipulation to Dismiss the
Individual and Class Action Claims without Prejudice.
Judge Fischer has read and considered the Parties' Stipulation, and
finding good cause, he granted it. The individual claims of the
Plaintiff against the Defendant are dismissed in their entirety
without prejudice pursuant to the Federal Rules of Civil Procedure,
Rule 41(a)(1)(A)(ii). The class action claims against the Defendant
are dismissed in their entirety without prejudice pursuant to the
Federal Rules of Civil Procedure, Rule 41(a)(1)(A)(ii). The
Plaintiff has not sought class certification, a class was not
certified, and no notice was sent to a prospective class.
Except as otherwise agreed upon, each party will bear his, her, or
its own costs and attorneys' fees.
The dismissal will not operate as an adjudication on the merits.
A full-text copy of the Court's Nov. 23, 2021 Order is available at
https://tinyurl.com/y675cpeh from Leagle.com.
UNILEVER UNITED: Antiperspirant Contains Benzene, Barnes Alleges
----------------------------------------------------------------
YVONNE BARNES; and PATRICIA DEAN, individually and on behalf of all
others similarly situated, Plaintiffs v. UNILEVER UNITED STATES
INCORPORATED, Defendant, Case No. 1:21-cv-06191 (N.D. Ill., Nov.
18, 2021) is a class action lawsuit regarding the Defendant's
manufacturing, distribution, and sale of Suave 24-hour Protection
Powder aerosol antiperspirant ("Suave Antiperspirant" or the
"Product") that contain dangerously high levels of benzene, a
carcinogenic impurity that has been linked to leukemia and other
cancers.
According to the complaint, the Defendant manufactures, markets,
advertises, distributes, and sells Suave 24-hour Protection Powder
aerosol antiperspirant ("Suave Antiperspirant" or the "Product") to
consumers throughout the United States, including in the State of
Illinois. However, the Product is defective because it contains the
chemical benzene, a known carcinogen that offers no therapeutic
deodorant or antiperspirant benefit
The Defendant represents that the Product is safe for its intended
use. In reality, the Product contains significant concentrations of
benzene, a harmful carcinogen. If the Plaintiffs had been aware of
the existence of benzene in the Product, she would not have
purchased the Product or would have paid significantly less, says
the suit.
Unilever United States, Inc. manufactures personal care products.
The Company offers , laundry detergents, shampoos, soaps,
fragrances, and body washes. as well as provides ice creams, oils,
mayonnaise, spreads, sauces, tea. [BN]
The Plaintiffs are represented by:
Virginia Ann Whitener, Esq.
MILBERG COLEMAN BRYSON
PHILLIPS GROSSMAN, PLLC
800 S. Gay Street, Suite 1100
Knoxville, TN 37929
Telephone: (865) 247-0080
Facsimile: (865) 522-0049
Email: gwhitener@milberg.com
-and-
Nick Suciu III, Esq.
MILBERG COLEMAN BRYSON
PHILLIPS GROSSMAN, PLLC
6905 Telegraph Rd., Suite 115
Bloomfield Hills, MI 48301
Telephone: (313) 303-3472
Facsimile: (865) 522-0049
Email: nsuciu@milberg.com
-and-
Jennifer Czeisler, Esq.
Russell Busch, Esq.
MILBERG COLEMAN BRYSON
PHILLIPS GROSSMAN, PLLC
800 S. Gay Street, Suite 1100
Knoxville, TN 37929
Telephone: (865) 247-0080
Facsimile: (865) 522-0049
Email: jczeisler@milberg.com
rbusch@milberg.com
UNITED AIRLINES: Hoffman ERISA Suit Seeks Payment of Plan Benefits
------------------------------------------------------------------
MICHEAL (SUSIE) HOFFMAN, on behalf of herself and all others
similarly situated v. UNITED AIRLINES, INC., UNITED AIRLINES
FRONTLINE VOLUNTARY SEPARATION PROGRAM (VSP2), UNITED AIRLINES
FRONTLINE VOLUNTARY SEPARATION LEAVE (VSL) PROGRAM, UNITED AIRLINES
CONSOLIDATED WELFARE BENEFIT PLAN, and UNITED AIRLINES RETIREE
MEDICAL PROGRAM, Case No. 1:21-cv-06395 (N.D. Ill., Nov. 30, 2021)
is a class action complaint against the defendant United Airlines
and the plan defendants for violations of the Employee Retirement
Income Security Act seeking payment of benefits.
Ms. Hoffman brings this action on her own behalf and on behalf of
the class of employees who are similarly situated, including all
employees who retired within 36 months of the VSL and were not paid
the benefits offered by the VSL (which they were entitled to under
the Early Out Policy).
Ms. Hoffman worked as an international flight attendant for United,
or its predecessor, Continental Airlines, from July 1998 until she
accepted an early retirement plan in July 2020.
On October 30, 2020, United issued a memorandum to its employees
stating it would be "sunsetting" (ending) its Early Out Policy as
of January 1, 2021, but that the policy would still apply to anyone
who retired prior to that date.
Because Ms. Hoffman retired before January 1, 2021, the sunsetting
policy does not affect her situation.
On January 22, 2021, United announced that it would offer a new
early out program called the Frontline Voluntary Separation Leave
("VSL") Program. The VSL also had two variations – Option A and
Option B.
The VSL is an "employee welfare benefit plan" under 29 U.S.C.
section 1002(1). It is covered by ERISA under 29 U.S.C. section
1003(a).
The VSL provided significantly richer benefits than the VSP2 had
provided. Depending on the option chosen, individuals who retired
under the VSL could receive up to $112,500 in additional pay, a
$125,000 contribution to a retiree health account, an additional
year of benefits added to the employee's retirement plan, and
enhanced travel benefits.
United Airlines, Inc. is an international airline incorporated in
Delaware with its corporate headquarters in Chicago, Illinois.
United Airlines Frontline Voluntary Separation Program 2 ("VSP2")
is an employee welfare benefit plan that offers severance benefits
to employees who voluntarily retire.
United Airlines Frontline Voluntary Separation Leave ("VSL")
Program is an employee welfare benefit plan that offers severance
benefits to employees who voluntarily retire.
United Airlines Consolidated Welfare Benefit Plan is an employee
welfare benefit plan that offers health, disability, and retirement
benefits to employees.
United Airlines Retiree Medical Program is an employee welfare
benefit plan that offers retirement benefits to employees.
The benefits plans are employee benefit plans as defined in 29
U.S.C. section 1002(3) that are both sponsored and administered by
United.[BN]
The Plaintiff is represented by:
Jamie S. Franklin, Esq.
THE CIVIL LITIGATION CLINIC AT
CHICAGO-KENT COLLEGE OF LAW
565 West Adams Street, Suite 600
Chicago, IL 60661
Telephone: (312) 906-5048
Facsimile: (312) 906-5299
E-mail: jfranklin5@kentlaw.iit.edu
UNITED HEALTHCARE: OHL Seeks to Certify Healthcare Provider Class
-----------------------------------------------------------------
In the class action lawsuit captioned as OMEGA HOSPITAL, LLC, v.
UNITED HEALTHCARE SERVICES, INC., AND UNITED HEALTHCARE OF
LOUISIANA, INC., Case No. 3:16-cv-00560-JWD-EWD (M.D. La.), the
Plaintiff asks the Court to enter an order:
1. certifying the instant lawsuit as a class action pursuant
to Fed. R. Civ. Pro. 23(b)(3) on behalf of the following
class:
"All healthcare providers in the State of Louisiana who,
from (10) years prior to the filing date of this action to
its final termination, provided or will provide out-of
network healthcare services or supplies to patients
covered under healthcare plans governed byEmployee
Retirement Income Security Act of 1974 (ERISA) and insured
or administered by United, and who, after receiving
reimbursement pursuant to an assignment from a United plan
member, were subject either to United's unilateral
recovery of all or a part of such payment by cross-plan
offset or offset against other funds belonging or owed to
the healthcare provider for subsequent services provided
to patients;"
2. apointing itself as representatives for the class; and
3. appoinitng the following attorneys to serve as class
counsel for the class:
-- Paul A. Lea, Jr.
-- Stephen B. Murray, Jr.
-- Arthur M. Murray.
The Proposed Class satisfies the requisites for class certification
under Rule 23(b)(3) and for equitable relief under Rule 23(b)(2),
the Plaintiff contends.
UHS is a comprehensive provider of healthcare services in upstate
New York's Southern Tier. A locally owned, not-for-profit system,
it is governed by a volunteer board of directors composed of
residents from around the region.
Omega Hospital is Louisiana's specialty surgical hospitals.
A copy of the Plaintiff's motion to certify class dated Nov. 30,
2021 is available from PacerMonitor.com at https://bit.ly/3DdqvIQ
at no extra charge.[CC]
The Plaintiff is represented by:
Stephen B. Murray, Jr., Esq.
Arthur M. Murray, Esq.
Kenneth J. Wink, Jr., Esq.
MURRAY LAW FIRM
701 Poydras Street, No. 4250
New Orleans, LA 70139
Telephone: (504) 525-8100
Facsimile: (504) 584-5249
E-mail: smurrayjr@murray-lawfirm.com
amurray@murray-lawfirm.com
kwink@murray-lawfirm.com
- and -
Paul A. Lea, Jr., Esq.
724 E. Boston Street
Covington, LA 70433
Telephone: (985) 292-2300
Facsimile: (985) 249-6006
E-mail: paul@paullea.com
UNITED STATES: Amended Mossman Complaint v. CDC Dismissed as Moot
-----------------------------------------------------------------
In the case, ASA MOSSMAN, et al., Plaintiffs v. UNITED STATES
CENTERS FOR DISEASE CONTROL AND PREVENTION, et al., Defendants,
Case No. 21-CV-28-CJW-MAR (N.D. Iowa), Judge Charles Joseph
Williams of the U.S. District Court for the Northern District of
Iowa, Cedar Rapids Division, granted the Defendants' motion to
dismiss the Plaintiffs' Amended Complaint as moot.
Background
On March 27, 2020, Congress passed the Coronavirus Aid, Relief, and
Economic Security Act ("CARES Act"), Pub. L. 116-136. Included in
the CARES Act was a temporary moratorium on evictions from certain
federally backed housing that expired on July 24, 2020.
On Sept. 1, 2020, Defendant Acting Chief of Staff of the Centers
for Disease Control and Prevention ("CDC") Nina Witkofsky issued a
nationwide order that was not limited to federally backed housing,
which went into effect on Sept. 4, 2020. The Order cited to Section
361 of the Public Health Service Act, 42 U.S.C. 264, and 42 C.F.R.
70.2 as the sources of its authority.
To invoke the Order's protections, a tenant needed to complete and
sign a declaration certifying under the penalty of perjury that
they were unable to pay rent "due to substantial loss of household
income, loss of compensable hours of work or wages, lay-offs, or
extraordinary out-of-pocket medical expenses;" "used best efforts
to make timely partial payments that are as close to the full
payment as circumstances permit"; "used best efforts to obtain all
available government assistance for rent or housing"; earned less
than $99,000 per year, if an individual (or $198,000 for joint
filers); and were "likely to become homeless" if evicted. Landlords
found in violation of the Order were subject to a $100,000 fine if
the violation did not result in death, or a $250,000 fine with
possible incarceration if it did.
According to its terms, the Order was effective Sept. 4, 2020,
through Dec. 31, 2020, unless extended. Congress extended the Order
until Jan. 31, 2021. On Feb. 3, 2021, the CDC extended the Order
until March 31, 2021.
Meanwhile, on March 18, 2021, the Plaintiffs filed their complaint
against the Defendants in the Court. The Plaintiffs are individual
landlords, members of the National Apartment Association, and
members of the National Association of Residential Property
Managers. The Defendants are the CDC, its leaders, and related
agencies.
Since the Plaintiffs filed their complaint, activity in the case
has somewhat ebbed and flowed depending on the proximity to the
current order's current expiration date. For instance, the CDC
extended the Order until June 30, 2021. On June 11, 2021, the
Defendants' counsel first entered an appearance and requested an
extension of time to answer the complaint in light of the
then-expiration date of June 30. Magistrate Judge Mark A. Roberts
granted an extension until July 22, 2021. In June, the CDC extended
the Order again, this time until July 31, 2021. The Defendants
asked for another extension in anticipation of the Order's new
expiration date, which the Plaintiffs did not resist.
As this case wound through the early stages of litigation, Alabama
Association of Realtors v. U.S. Department of Health and Human
Services addressed the core issues in dispute. In early May, the
U.S. District Court for the District of Columbia ("D.C. District
Court") found that the CDC did not possess the statutory authority
to issue or extend a nationwide eviction moratorium as provided for
in the Order. Accordingly, the D.C. District Court held that the
order violated the constitutional separation of powers and ordered
that it be set aside. On May 14, 2021, however, the district court
stayed its order pending appeal because it found "the CDC's
nationwide eviction moratorium raises serious legal questions." The
Court of Appeals for the District of Columbia Circuit ("D.C.
Circuit") upheld the district court stay on June 2, 2021.
On June 29, 2021, as the Order's expiration loomed, the Supreme
Court considered the the Plaintiffs' appeal from the D.C. Circuit's
ruling. It denied the application to vacate the stay but did not
issue an opinion. Four justices, however, would have vacated the
stay. A fifth justice, Justice Brett Kavanaugh, concurred in
affirming the stay but wrote a three-sentence concurrence to
clarify that his vote turned on the fact that the Order was set to
end "in only a few weeks, on July 31." According to Justice
Kavanaugh, "clear and specific congressional authorization (via new
legislation) would be necessary for the CDC to extend the
moratorium past July 31."
Following the Order's expiration, President Joe Biden addressed its
constitutional concerns at a press conference on Aug. 3, 2021.
There, the President remarked that "the courts made it clear that
the existing moratorium was not constitutional; it wouldn't stand."
Addressing rumors of a new partial eviction moratorium, the
President stated that "the bulk of the constitutional scholarship
says that it's not likely to pass constitutional muster. But there
are several key scholars who think that it may and it's worth the
effort." The President concluded that "at a minimum, by the time it
gets litigated, it will probably give some additional time" to
Americans in need.
On Aug. 3, later that same day, the CDC issued a second order,
extending the eviction moratorium until Oct. 3, 2021.2 Thus, by
Aug. 6, 2021, when the Defendants filed their answer in the Court,
they were no longer arguing to dismiss the case on grounds that it
was moot because the Second Order was in effect. As the President
described at an Aug. 5, 2021 press conference, the rationale
justifying the Second Order was the rapid spread of COVID-19 via
the Delta variant.
Upon its review of the Second Order, the D.C. District Court
observed that the new eviction moratorium applied only "in the U.S.
counties experiencing substantial or high levels or community
transmission of SARS-CoV-2 as defined by CDC" (Ala. Assoc. of
Realtors v. HHS, 2021 WL 3577367, at *2 (D.D.C. Aug. 13, 2021)).
There, the plaintiffs filed an emergency motion to vacate the stay,
which the district court denied. The D.C. Circuit again upheld the
stay.
The Supreme Court granted the Plaintiffs' emergency motion to
vacate the stay. In a six-to-three per curiam opinion, the Supreme
Court wrote that the Plaintiffs "not only have a substantial
likelihood of success on the merits -- it is difficult to imagine
them losing." It found "it is up to Congress, not the CDC, to
decide whether the public interest merits further action."
Back in the Northern District of Iowa, the Plaintiffs continued to
pursue their claims. On Aug. 24, 2021, the Plaintiffs filed their
Amended Complaint. On August 30, 2021, they filed a motion for
partial summary judgment. On Sept. 3, 2021, the Defendants filed a
motion to stay briefing on summary judgment and class certification
pending disposition of a forthcoming motion to dismiss the case as
moot. The Court granted the Defendants' motion. On Sept. 13, 2021,
the Defendants filed their motion to dismiss the Plaintiffs' claims
as moot based on the Supreme Court and D.C. District Court rulings
in Alabama Association of Realtors v. U.S. Department of Health and
Human Services.
The Plaintiffs allege the Defendants caused them to suffer
irreparable harm because the CDC's Order and Second Order have
prevented them from evicting tenants and recovering their property.
According to them, "the very existence of the orders had the
natural consequence of emboldening and causing tenants to cease
paying rent." The Plaintiffs allege that each plaintiff lost
several thousand to nearly a hundred thousand dollars in lost rent
and property damage because they could not evict tenants for
nonpayment. They further assert they are also unable to access the
properties they own. Finally, the Plaintiffs assert that the CDC's
Order and Second Order are inherently unjust because they do not
allow them to contest their tenants' self-certification of
financial hardship.
Specifically, the Plaintiffs bring eleven claims, alleging: (1)
unlawful agency action under the Administrative Procedure Act, 5
U.S.C. Section 706(2)(A-C), by exceeding statutory and regulatory
authority; (2) unlawful agency action under the Administrative
Procedure Act, 5 U.S.C Section 706(2)(A), by issuing arbitrary and
capricious orders; (3) Due Process violations for denying the
Plaintiffs' right to contest their tenants' self-certified
declaration of financial hardship; (4) violation of their right to
access courts under the United States Constitution by denying the
Plaintiffs' only lawful means of evicting delinquent tenants; (5)
the orders are not constitutional and therefore cannot preempt
other laws; (6) Tenth Amendment and Contract Clause violations
because the orders do not validly preempt state law; (7) Tenth
Amendment violation because the orders unlawfully commandeer state
resources; (8) violation of the Non-Delegation Doctrine under U.S.
Constitution Art. 1 Section 1; (9) unlawful suspension of law; (10)
that the Orders exceeded Article 1, Section 8 powers and would be
unlawful if enacted by Congress; and (11) the Plaintiffs' right to
certify a class action.
Of this Court, the Plaintiffs request vacatur of the CDC Order,
setting it aside; a declaratory judgment against the CDC Order,
holding it invalid; an injunction prohibiting its enforcement and
prohibiting the entry, reentry, promulgation, or extension of the
CDC Order or any order like it denying access to state courts for
evictions; and any other relief that may be appropriate, including
but not limited to attorneys' fees and costs.
The Defendants now ask that the Court dismiss all of the
Plaintiffs' claims as moot.
Discussion
The Defendants argue the Court should dismiss the Plaintiffs'
claims because they are moot following the Supreme Court and D.C.
District Court rulings and their nationwide effect. Accordingly,
they argue that any ruling on the merits of the case would
constitute an advisory opinion, divorced from any ongoing case or
controversy as required by the Constitution.
In response, the Plaintiffs argue the case is not moot because the
Court can still grant relief. They assert this is because the
Supreme Court did not rule on the merits of the case, so its
rationale is not law. Further, the Plaintiffs argue the Court can
hear the case because the Court is not bound to follow the
decisions of other district courts. The Plaintiffs also argue that
even if the Court finds the case is moot, the voluntary cessation
exception applies because the Defendants have intentionally evaded
judicial review.
The Defendants, however, argue no exception to mootness applies.
Regarding the voluntary cessation exception, the Defendants argue
their cessation was court-ordered, not voluntary, and the Plaintiff
cannot show it is reasonable to expect that they will reinstitute
the order.
A. Mootness
Judge Williams finds that the case is moot. He says, the Plaintiffs
are correct that the D.C. District Court ruling does not bind the
Court. It does bind the Defendants, however, and with nationwide
effect. The Plaintiffs assert the fact that they cannot benefit
from the ruling as evidence that their claims are not moot. The
ruling, however, rendered the Plaintiffs' claims moot for another
reason. Specifically, the D.C. District Court held there was no
statutory support for the orders. As the Plaintiffs admit, the
Defendants dismissed its appeal of the D.C. District Court's
decision and are no longer enforcing their Second Order. Thus, the
eviction moratorium is no longer in place and the Plaintiffs are no
longer subject to it.
In their complaint, the Plaintiffs request that the Court free them
of the order, whether by vacatur, declaratory judgment, or
injunction. After the district court ruling, however, such remedies
no longer apply. Thus, there is no existing order for the Court to
vacate, issue a declaratory judgment against, or enjoin.
Accordingly, the issue of whether the Defendants' eviction
moratorium exceeds statutory authority is no longer live. Thus, the
case is moot and the Court does not have jurisdiction to hear it.
B. Voluntary Cessation
Judge Williams finds the voluntary cessation exception to mootness
does not apply. Even viewing the evidence in the light most
favorable to the Plaintiff and interpreting the Defendants' past
actions as evading judicial review, he holds that the current
circumstances are sufficiently different such that the Court cannot
say it is reasonable to expect that the Defendants will reinstate
an order requiring an eviction moratorium. To be sure, the
Defendants are legally barred from reinstating the order anywhere
in the country.
In arguing that the voluntary cessation exception applies, the
Plaintiffs argue that (1) the Defendants' cessation was voluntary
and (2) it is reasonable to expect another comparable order from
Defendant CDC.
As to the first argument, Judge Williams finds that the fact that
the Defendants have since obeyed court rulings vacating the stay
and finding the Defendants' exercise of statutory authority
unconstitutional is not evidence that the Defendants voluntarily
changed their position. Instead, it is evidence that defendants are
respecting the Court and the rule of law. Additionally, the
Defendants are not required to appeal a ruling to prove the
genuineness of their interpretation, nor must they advertise the
end of their orders in the same fashion and degree they used to
advertise their beginning. The Plaintiffs make no showing that
defendants are leading the American public to believe they are
still under protection of the order.
With respect to the second argument, Judge Williams holds that with
nearly three months having passed since the Supreme Court ruling on
August 26, he finds it reasonable to view the Defendants' Second
Order as a last-ditch effort, with no reasonable expectation it
will recur. The Defendants have not reinstituted the eviction
moratorium. Despite the Defendants past delays and sudden changes
in plans, whether they be the result of miscommunication or
strategic trickery or some combination thereof, Judge Williams
cannot say it is reasonably expected at this point that the
Defendants will ignore such clear guidance from the Supreme Court.
The Plaintiffs are correct that the Supreme Court's August 26th
ruling was not a decision on the merits. Nevertheless, the August
ruling substantially altered circumstances such that it is no
longer reasonable to expect the Defendants to reinstate their
nationwide eviction moratorium. Thus, the voluntary cessation
exception to mootness does not apply.
Conclusion
For these reasons, Judge Williams granted the Defendants' motion to
dismiss the case as moot. The Clerk of Court is directed to term
all outstanding motions.
A full-text copy of the Court's Nov. 23, 2021 Order is available at
https://tinyurl.com/yumnuetd from Leagle.com.
UNITED STATES: Faces Class Suit Over Vaccine's Religious Exemptions
-------------------------------------------------------------------
Calvin Shomaker at The Daily News reports that as the deadline for
all U.S. troops to get vaccinated against COVID-19 approaches,
lawsuits challenging the mandate are heating up.
Whether it's attorneys who served at local Marine bases leading
litigation, or multiple North Carolina Marines involved as
plaintiffs, the Jacksonville area is connected to the cases.
Religious freedoms suit filed
On Nov. 9, First Liberty Institute filed a lawsuit - SEALs v. Biden
- in a federal court in Texas against President Joe Biden,
Secretary of Defense Lloyd Austin, the Department of Defense (DoD)
and Secretary of the Navy Carlos Del Toro on behalf of 35 Navy
SEALs and special warfare service members.
The complaint, which claims a violation of the service members'
first amendment right to religious freedoms, said the plaintiffs
"object to receiving a COVID-19 vaccination based on their
sincerely held religious beliefs." The case also argues that the
SEALs are being harassed and punished even as their religious
exemptions are pending.
In a interview with The Daily News, Mike Berry, a lieutenant
colonel in the Marine Corps Reserve and the lead attorney on the
case, said the Navy is discriminating by not granting any religious
exemptions from the COVID-19 vaccine.
"There is a Navy Special Warfare Command regulation that states
that even if their religious exemption is approved, it will render
them medically disqualified," Berry said. "Once that happens, they
forfeit their special operations pay [and are] removed from the
special operations community . . . . They're really in a Catch
22."
"When you join the military, we all know that there are certain
freedoms you give up but you don't give up your religious freedom,"
Berry said. "We have strong protection in the law for religious
freedom, even in the military."
Lawsuits challenge legality of mandate
Dale Saran, a retired Marine Corps major who was a pilot with
Marine Light Attack Helicopter Squadron 269 at Marine Corps Air
Station New River in the 1990s, is one of two lawyers representing
a North Carolina soldier and Marine in their lawsuit - Robert v.
Austin - against U.S. agencies DoD, the Department of Health and
Human Services and the Food and Drug Administration (FDA).
The lawsuit was originally filed in August in a Colorado court. On
Nov. 2, a preliminary injunction was filed where the suing parties
claim DoD is "engaged in an illegal vaccination program involving
all active duty, National Guard, and reserve members of the all
volunteer force."
An updated complaint filed Nov. 6 said Austin and the DoD are
"coercing and forcing military members to be injected with
unlicensed drugs in violation of federal law and the U.S.
Constitution."
"Our argument is first and foremost that it's not a licensed
vaccine and it can't be mandated," Saran said.
The complaint argued the Pfizer-BioNTech vaccine is "legally
distinct" from the FDA-approved form by the name of Comirnaty.
Furthermore, the complaints said "all DOD units are using the EUA
Pfizer-(BioNTech) vaccine that is not yet licensed by FDA."
According to court documents, the two plaintiffs in the case are
Staff Sgt. Daniel Robert of Fort Bragg and Staff Sgt. Hollie
Mulvihill of Marine Corps Air Station New River.
"The military has systematically violated people's rights," Saran
said, who claims some service members who request religious
accommodation have been removed from their positions.
On Oct. 15, a class action lawsuit, Navy SEAL 1 v. Biden, was filed
by Liberty Counsel in a Florida federal court against Biden, Austin
and Security of Homeland Security Alejandro Mayorkas on behalf of
members from the Army, Navy, Air Force, Marine Corps and Coast
Guard, as well as federal employees and civilian contractors.
The lawsuit claims plaintiffs "have been unlawfully mandated to get
the COVID shots or face dishonorable discharge from the military or
termination from employment," said a news release from the firm.
Military plaintiffs in the lawsuit, which claims the mandate
violates federal Emergency Use Authorization law and religious
freedom, include Marine Corps personnel - two lieutenant colonels,
one major, one captain and two lance corporals.
Plaintiffs are unnamed in court documents released to date;
however, the major and a lance corporal are stationed in North
Carolina.
"The COVID shots cannot be mandatory under the federal Emergency
Use Authorization law (EUA)," said a Oct. 15 press release from
Liberty Counsel. "All of the COVID-19 shots (Pfizer, Moderna,
Johnson & Johnson's Janssen) have received only EUA authorization
and not full FDA approval."
In a Nov. 11 release from Liberty Counsel announcing they "filed a
reply brief and additional affidavits supporting the need for
immediate relief for plaintiffs," the firm doubled down on its
stance.
"Dr. Robert Malone, who discovered in-vitro and in-vivo RNA
transfection and invented mRNA vaccines while he was at the Salk
Institute in 1988, provided an affidavit in Liberty Counsel's
brief," the release said. "Dr. Malone testified, based on the
statements from the National Institutes of Health, the Centers for
Disease Control, and the FDA letters concerning the vaccines, the
'FDA regulated product labeled COMIRNATY is the only FDA licensed
SARSCoV-2 vaccine . . . but it is not yet available for use in the
United States.'"
'Harmful to national security'
Last month, Jacksonville congressman Greg Murphy wrote Austin
objecting to the vaccine mandate for service members, calling it
"reprehensible" that the department would consider relieving
service members who refused the shot.
"I worry that dismissing or refusing to deploy unvaccinated
servicemembers could critically impede operational readiness and
undermine U.S. national security," Murphy wrote, who is a
physician. "It is also highly disturbing that servicemembers who do
not receive the COVID-19 vaccine will not only be excused from
their duties, but they could have to retroactively pay back any
bonuses received for their service or lose additional benefits."
Berry said the crackdown on unvaccinated service members could be
detrimental to the military as a whole.
"If you have to choose between your faith and serving your country,
then I don't think that's a very good position for our military to
be in," Berry said. "I think that is actually harmful to national
security to begin forcing service members to choose between their
faith and their service." [GN]
VALVE CORP: W.D. Washington Trims Claims in Dark Catt Class Suit
----------------------------------------------------------------
In the case, DARK CATT STUDIOS HOLDINGS, INC., and DARK CATT
STUDIOS INTERACTIVE LLC, on behalf of themselves and all others
similarly situated. Plaintiffs v. VALVE CORPORATION, Defendant,
Case No. C21-0872-JCC (W.D. Wash.), Judge John C. Coughenour of the
U.S. District Court for the Western District of Washington,
Seattle, granted in part and denied in part the Defendant's motion
to dismiss.
Background
Plaintiffs Dark Catt Studios Holdings, Inc. and Dark Catt Studios
Interactive LLC (collectively "Dark Catt") develop and publish
personal computer ("PC") games. The Defendant is the creator of the
Steam gaming website, the world's largest PC game distributor.
Dark Catt alleges in a class action complaint that the Defendant
utilizes its market power to impose anticompetitive pricing and
marketing restrictions on Dark Catt and similarly situated PC game
developers and publishers (collectively "publishers"). The
resulting alleged injuries include, inter alia, the payment of
supracompetitive fees. Dark Catt asserts these practices violate
Section 2 of the Sherman Act, along with the Washington Consumer
Protection Act ("CPA").
The Defendant moves to dismiss pursuant to Federal Rule of Civil
Procedure 12(b)(6). It argues that Dark Catt fails to allege facts
plausibly supporting an antitrust injury, fails to plausibly allege
Defendant's market power, and fails to provide facts supporting
unlawful antitrust conduct.
Discussion
A. Injury
To support an antitrust claim, a plaintiff must allege "(1)
unlawful conduct, (2) causing an injury to the plaintiff, (3) that
flows from that which makes the conduct unlawful, and (4) that is
of the type the antitrust laws were intended to prevent." A key
consideration then is whether Dark Catt's complaint plausibly
alleges injury. As the Court indicates in a similar putative class
action, an injury based on the payment of supracompetitive fees
cannot be plausibly alleged if the fee charged remains the same
when a defendant allegedly controlled the market and when it did
not.
According to the complaint, except for recent volume discounts, the
Defendant has consistently charged the same 30% supracompetitive
fee. However, Judge Coughenour finds that Dark Catt's complaint
does not contain allegations suggesting that, at any point, the
Defendant was not the market leader for PC game delivery. While the
Defendant asks the Court to infer as much, this would violate the
fundamental principle that, at least at this point, reasonable
inferences must be drawn in Dark Catt's favor. Turning to the
substance of Dark Catt's allegations, the complaint alleges that
the Defendant's 30% fee is supracompetitive because it is far above
what other storefronts charge. This is sufficient to allege injury;
therefore, Judge Coughenour need not address Dark Catt's arguments
regarding whether non-price injury has been adequately plead.
B. Market Power
The Defendant next argues that Dark Catt fails to provide
sufficient allegations to support its assertions regarding its
market power, specifically its 75% market share.
Judge Coughenour disagrees. According to the complaint, Steam
"holds approximately 75% of the global market" which, in 2017
generated over $4 billion worth of sales" and last year "recorded
120 million monthly active players." As a result, game publishers
consistently list their games for sale on Steam "to be where the
players are." At this stage in the proceeding, no more is
required.
C. Alleged Antitrust Conduct
The final issue for the Court's consideration is antitrust conduct.
According to the complaint, the Defendant engages in the following:
(1) uses Steam Keys, which are alphanumeric codes that allow
Steam-hosted games to be purchased outside of Steam, to impose
anti-competitive terms to game publishers, (2) uses contractual
agreements with game publishers whose games are hosted by Steam to
impose similar anti-competitive terms to the sale of a publisher's
non-Steam hosted games, and (3) controls the game review system
within Steam in such a manner so as to punish game publishers who
choose to sell games outside of the Steam environment. In moving to
dismiss, the Defendant argues that none are adequately plead.
1. Steam Keys
The Defendant provides game publishers with Steam Keys, which allow
for the sale of Steam-hosted versions of games through third-party
storefronts. ) According to Dark Catt's complaint, Valve tightly
controls to whom, how many, and on what terms it provides Steam
Keys and, in doing so, engages in anti-competitive conduct. But,
Judge Coughenour finds that the Defendant has no duty to deal. So
long as it has a valid business reason for the terms it attaches to
its Steam Keys, those terms cannot, as a matter of law, represent
unlawful antitrade conduct. And nothing in Dark Catt's complaint
suggests that the Defendant's Steam Key terms are irrational.
2. Contractual Limitations
Game publishers often create parallel versions of their games -- a
version to be hosted on Steam and another to be hosted elsewhere.
The Steam version is governed by the Steam Distribution Agreement
("SDA"), which requires publishers to offer the most current
version of a game and downloadable content ("DLC") on Steam. The
complaint also alleges that the SDA contains (a) anti-competitive
exclusivity provisions and (b) price controls, requiring that
non-Steam versions of games be sold at the same price as the Steam
version. Dark Catt describes these collective requirements as a
most-favored-nation ("MFN") provision. According to the complaint,
the MFN "chills competition between Valve and it rivals by
preventing Publishers from offering better deals to consumers
through rival distributors."
First, Judge Coughenour holds that while the SDA does require game
publishers to provide Steam customers with the most current version
of their games and DLC, nothing in the SDA requires that they be
offered at comparable prices. Therefore, the complaint's
allegations regarding the SDA's price controls are not plausible.
Second, Judge Coughenour does not read the SDA as containing an
exclusivity provision. Instead, it provides that game publishers
may "offer special and unique promotional content through other
distribution channels, provided that material parity is maintained
between Steam Account Owners and users of other distribution
channels who make a comparable investment in the Application and
the associated DLC." And in any case, according to the complaint,
exclusive offerings are common in the industry. Therefore, it would
seem implausible that such agreements could constitute
anti-competitive conduct.
Third, the SDA's requirement that Steam customers receive the most
current version of a game and DLC, like any contractual term, is
only anti-competitive if not supported by a valid business reason.
In the case, it stands to reason that Steam would expect its
customers to receive a comparable product to that offered through
other storefronts. This is a basic business principle.
3. Game Reviews
Finally, the complaint alleges that the Defendant manages the game
review system in a manner so as to further its anticompetitive
efforts. According to the complaint, the Defendant uses the game
review system, which it hosts, to penalize publishers who choose to
sell a particular game exclusively through another storefront. But
it is not clear how the resulting harms would "flow from that which
makes the conduct unlawful" or represent "the type of conduct the
antitrust laws [a]re intended to prevent."
Conlusion & Order
Judge Coughenour concludes that Dark Catt's complaint plausibly
alleges an injury and plausibly alleges that the Defendant holds
market power, but it fails to allege unlawful antitrust conduct.
Therefore, it fails to adequately plead a violation of Section 2 of
the Sherman Act or a violation of the CPA.
For these foregoing reasons, Judge Coughenour granted in part and
denied in part the Defendant's motion to dismiss. The Plaintiffs'
complaint is dismissed without prejudice and with leave to amend.
An amended complaint, addressing the infirmities described, as well
as any other changes it elects to make, may be filed within 30 days
of the Order. If no such amendment is filed, the Clerk is directed
to close the case.
A full-text copy of the Court's Nov. 19, 2021 Order is available at
https://tinyurl.com/3wf3fur6 from Leagle.com.
VALVE CORP: Wolfire's Claims in Consolidated Amended Suit Narrowed
------------------------------------------------------------------
In the case, WOLFIRE GAMES, LLC, SEAN COLVIN, SUSANN DAVIS, DANIEL
ESCOBAR, WILLIAM HERBERT, RYAN LALLY, HOPE MARCHIONDA, and EVERETT
STEPHENS, individually and on behalf of all others similarly
situated, Plaintiffs v. VALVE CORPORATION, Defendant, Case No.
C21-0563-JCC (W.D. Wash.), Judge John C. Coughenour of the U.S.
District Court for the Western District of Washington, at Seattle,
granted in part and denied in part the Defendant's motion to
dismiss.
Plaintiff Wolfire Games, LLC alleges, in a Consolidated Amended
Class Action Complaint ("CAC"), that the Defendant utilizes
anticompetitive practices and its monopoly power to force Wolfire
and similarly situated personal computer ("PC") desktop game
publishers to pay Defendant supracompetitive fees for the sale of
their games. The CAC also contains allegations and claims for
relief from game consumers. However, the Court already granted
Defendant's motion to compel arbitration of those claims pursuant
to the Defendant's Steam Subscriber Agreement.
The Defendant operates a PC desktop gaming platform (the "Steam
Platform") and a retail electronic game store (the "Steam Store").
Wolfire asserts, through the CAC, that the Defendant forces game
publishers to sell their games through the Steam Store, which
results in anti-competitive injury to Wolfire and similarly
situated game publishers.
According to the CAC, the Defendant initially created the Steam
Platform to facilitate the delivery of patches and updates for its
own games. It later launched the Steam Store. At the time, it sold
its own games through the Steam Store, which could only be played
on the Steam Platform. TThis is because PC desktop games are
generally not compatible across platforms due to the "unique
functionality" of each platform.
At some point, the Defendant opened up the Steam Platform to
third-party game publishers. However, like its own games, those
third-party games, if compatible with the Steam Platform, were
generally not compatible with other platforms Also, like the
Defendant's own games, absent the limited use of Steam Keys, those
games had to be purchased through the Steam Store. The Defendant
does not charge a direct fee for consumers' use of the Steam
Platform or its hosting of a third-party publishers' games.
Instead, it generates revenue through a fee that it charges for
each third-party game sold in the Steam Store and for in-app
purchases. The Defendant initially set the fee at 30% but now
provides limited discounts to high-volume developers and/or
publishers.
The initial appeal of the Steam Platform to game consumers was the
ability to maintain and update their game libraries in one
location, regardless of which device they use to access the game.
However, over time, the Defendant added more functionality to the
platform. This included social networking features and other
services, including a game achievement tracking service. Based in
part on this increased functionality, demand for the platform
steadily rose. Today, the "vast majority of all PC desktop games
are played on the Steam Gaming Platform." As a result, Steam
compatibility is considered to be a "must-have."
According to the CAC, the Defendant uses this market dominance to
unlawfully tie Steam Store sales to use of its Steam Platform and
to impose price controls through contractual provisions and
coercion. The CAC asserts that these practices violate Sections 1
and 2 of the Sherman Act as well as the Washington Consumer
Protection Act ("CPA").
The Defendant moves to dismiss, at least with respect to Wolfire,
pursuant to Federal Rule of Civil Procedure 12(b)(6). It argues,
inter alia, that CAC's tying claims are not supportable, given the
integrated platform and distribution market described in the CAC,
and that the CAC fails to allege facts supporting an antitrust
injury.
Discussion
a. Relevant Market
According to the CAC, by 2020, the Defendant reported 45,000
Steam-compatible games and 120 million monthly active Steam
Platform users. The Steam Store, where those games are generally
purchased, presently accounts for 75% of the $10 billion2 PC
desktop game market.
Judge Coughenour need not weigh in on the debate because, under
either standard, the CAC's allegations do not support Wolfire's
contention that the game platform and game transaction markets are,
in fact, separate. According to the CAC, games developed for a
particular platform cannot be played on another platform and, with
limited exceptions, game platforms generally do not charge for
their use; instead, they generate revenue to support the platform
through the sale of platform-compatible games and in-app
purchases.
Granted, Steam-enabled games can be purchased on a limited basis
elsewhere. But those games are of no value unless the publisher
includes a Steam Key, which the Defendant provides at no charge and
only serves to allow the game to be played on the Steam Platform.
Therefore, under either Jefferson Parish's consumer demand standard
or Rick-Mik's essential ingredient standard, the CAC's allegations
suggest that the Steam Platform and Steam Store are a single
product within the integrated game platform and transaction
market.
b. Antitrust Injury
To support an antitrust claim, a plaintiff must allege "(1)
unlawful conduct, (2) causing an injury to the plaintiff, (3) that
flows from that which makes the conduct unlawful, and (4) that is
of the type the antitrust laws were intended to prevent."
The Defendant's motion to dismiss focuses on the CAC's failure to
establish the second element. The CAC asserts that the Defendant's
utilization of its monopoly power and platform most-favored-nation
provision injures Wolfire through its payment of its
supracompetitive fee. It further asserts that its coercive conduct
reduces output and stifles competition in the marketplace,
resulting in fewer, lower quality games as well as other ancillary
anti-competitive effects
First, Judge Coughenour finds that the market reality, at least as
plead in the CAC, is that, in spite of the Defendant's
"supracompetitive" fee, others who charge less have failed, even
though they had significant resources at their disposal. Therefore,
it would appear that the market reality, at least as plead, is that
the Defendant's fee is commensurate with the Steam Platform's value
to game publishers.
Next, he finds that the CAC lacks allegations supporting the
assertion that the Defendant's coercive practices result in
non-price antitrust injuries, namely a reduction in output and
quality. If anything, the facts provided by the CAC, at least with
respect to output, suggest the opposite -- a consistent increase in
the number of games available in the market and on the Steam
Platform. Moreover, to the extent that this injury is predicated on
Wolfire's payment of the Defendant's allegedly supracompetitive
fee, it is not adequately plead. And finally, the CAC does not
provide facts describing how Wolfire directly suffered from an
alleged reduction in output and/or quality. Instead, it only
addresses the impact on the industry.
In addition, the CAC describes other harms arising from the
Defendant's practices, namely cybersecurity issues and a failure to
police game consumers' inappropriate behavior. But it does not
describe how those harms "flow from that which makes the conduct
unlawful" or are "the type the antitrust laws are intended to
prevent."
Conclusion
Judge Coughenour concludes that while the CAC provides a viable
alternative market to support its Sherman Act and CPA causes of
action -- the integrated game platform and transaction market -- it
does not articulate sufficient facts to plausibly allege an
antitrust injury based on that market. Accordingly, the CAC fails
to state a claim upon which relief can be granted.
For these reasons, Judge Coughenour granted in part and denied in
part the Defendant's motion to dismiss. Wolfire's causes of action
in the CAC are dismissed without prejudice and with leave to amend.
Wolfire may file a second amended complaint, addressing the
infirmities described, as well as any other changes it elects to
make, within 30 days of the order.
A full-text copy of the Court's Nov. 19, 2021 Order is available at
https://tinyurl.com/ycynhknn from Leagle.com.
VEONEER INC: Misleads Stockholders to Approve Merger, Sabatini Says
-------------------------------------------------------------------
ERIC SABATINI, individually and on behalf of all others similarly
situated, Plaintiff v. VEONEER, INC., ROBERT W. ALSPAUGH, JAN
CARLSON, JAMES M. RINGLER, MARK DURCAN, JONAS SYNNERGREN, KAZUHIKO
SAKAMOTO, and WOLFGANG ZIEBART, Defendants, Case No. 2:21-cv-09292
(C.D. Cal., November 30, 2021) is a class action against the
Defendants for violations of Sections 14(a) and 20(a) of the
Securities Exchange Act of 1934.
According to the complaint, the Defendants authorized the issuance
of a materially false and misleading Schedule 14A Definitive Proxy
Statement with the Securities and Exchange Commission in order to
convince Veoneer stockholders to approve the proposed acquisition
of Veoneer by Qualcomm Incorporated and SSW Investors LP. The Proxy
Statement allegedly omits or misrepresents material information
concerning, among other things: (i) the data and inputs underlying
the financial valuation analyses that support the fairness opinions
provided by Veoneer's financial advisors, Morgan Stanley & Co. LLC
and Rothschild & Co US Inc.; and (ii) Morgan Stanley's potential
conflicts of interest. Veoneer's public stockholders will be
irreparably harmed because the Proxy Statement's material
misrepresentations and omissions prevent them from making a
sufficiently informed voting or appraisal decision on the proposed
transaction. The Plaintiff seeks to enjoin the stockholder vote on
the proposed transaction unless and until such securities
violations are cured.
Veoneer, Inc. is an American Swedish provider of automotive
technology based in Stockholm, Sweden. [BN]
The Plaintiff is represented by:
Joel E. Elkins, Esq.
WEISSLAW LLP
611 Wilshire Blvd., Suite 808
Los Angeles, CA 90017
Telephone: (310) 208-2800
Facsimile: (310) 209-2348
- and –
Richard A. Acocelli, Esq.
305 Broadway, 7th Floor
New York, NY 10007
Telephone: (212) 682-3025
Facsimile: (212) 682-3010
VIATRIS INC: Dvorak Antitrust Suit Moved From E.D. Va. to D. Kan.
-----------------------------------------------------------------
The case styled DONNA DVORAK, individually and on behalf of all
others similarly situated v. VIATRIS INC., Successor-in-Interest to
Mylan N.V.; MYLAN SPECIALTY L.P.; MYLAN PHARMACEUTICALS, INC.; and
HEATHER BRESCH, Case No. 1:21-cv-01213, was transferred from the
U.S. District Court for the Eastern District of Virginia to the
U.S. District Court for the District of Kansas on November 30,
2021.
The Clerk of Court for the District of Kansas assigned Case No.
2:21-cv-02561-DDC-TJJ to the proceeding.
The case arises from the Defendants' alleged conspiracy,
monopolization, attempted monopolization, and tying in violation of
the Tennessee Antitrust Statute, the Racketeer Influenced and
Corrupt Organizations Act, and the Virginia State Consumer
Protection Law.
Viatris Inc. is a global pharmaceutical company, headquartered in
Pennsylvania.
Mylan Specialty L.P. is a pharmaceutical company located in West
Virginia.
Mylan Pharmaceuticals, Inc. is a pharmaceutical company,
headquartered in Pennsylvania. [BN]
The Plaintiff is represented by:
Elizabeth K. Tripodi, Esq.
LEVI & KORSINSKY LLP
1101 30th Street NW, Suite 115
Washington, DC, 20007
Telephone: (202) 524-4290
Facsimile: (212) 363-7171
E-mail: etripodi@zlk.com
- and –
Courtney E. Maccarone, Esq.
LEVI & KORSINSKY LLP
55 Broadway, 10th Floor
New York, NY 10006
Telephone: (212) 363-7500
E-mail: cmaccarone@zlk.com
- and –
Rosemary M. Rivas, Esq.
GIBBS LAW GROUP LLP
505 14th Street, Suite 110
Oakland, CA 94612
Telephone: (510) 350-9700
Facsimile: (510) 350-9701
E-mail: rmr@classlawgroup.com
VIATRIS INC: Sumner Antitrust Suit Moved From E.D. Tenn. to D. Kan.
-------------------------------------------------------------------
The case styled APRIL SUMNER, individually and on behalf of all
others similarly situated v. VIATRIS INC., Successor-in-Interest to
Mylan N.V.; MYLAN SPECIALTY L.P.; MYLAN PHARMACEUTICALS, INC.; and
HEATHER BRESCH, Case No. 1:21-cv-00270, was transferred from the
U.S. District Court for the Eastern District of Tennessee to the
U.S. District Court for the District of Kansas on November 29,
2021.
The Clerk of Court for the District of Kansas assigned Case No.
2:21-cv-02555-DDC-TJJ to the proceeding.
The case arises from the Defendants' alleged conspiracy,
monopolization, attempted monopolization, and tying in violation of
Tennessee Antitrust Statute, the Racketeer Influenced and Corrupt
Organizations Act, and Tennessee State Consumer Protection Law.
Viatris Inc. is a global pharmaceutical company, headquartered in
Pennsylvania.
Mylan Specialty L.P. is a pharmaceutical company located in West
Virginia.
Mylan Pharmaceuticals, Inc. is a pharmaceutical company,
headquartered in Pennsylvania. [BN]
The Plaintiff is represented by:
John Spragens, Esq.
SPRAGENS LAW PLC
311 22nd Ave. N.
Nashville, TN 37203
Telephone: (615) 983-8900
E-mail: john@spragenslaw.com
- and –
Rosemary M. Rivas, Esq.
GIBBS LAW GROUP LLP
505 14th Street, Suite 110
Oakland, CA 94612
Telephone: (510) 350-9700
Facsimile: (510) 350-9701
E-mail: rmr@classlawgroup.com
VILLAGE COMPANY: Body Spray Contains Benzene, Ventura Suit Says
---------------------------------------------------------------
MARIA VENTURA, individually and on behalf of all others similarly
situated, Plaintiff v. THE VILLAGE COMPANY, LLC, Defendant, Case
No. 1:21-cv-10226 (S.D.N.Y., December 1, 2021) is a class action
against the Defendant for violations of New York General Business
Law, breach of express warranty, breach of implied warranty of
merchantability, fraudulent concealment, medical monitoring, and
unjust enrichment.
According to the complaint, the Defendant is engaged in false,
deceptive, and misleading advertising, labeling, and marketing of
Soft & Dri - Classic, Signature Soft Scent body spray product. The
Defendant failed to disclose that the product contains benzene, a
known human carcinogen. As a result of the Defendant's alleged
misrepresentations, the Plaintiff and Class members were injured in
fact and lost money. Had they known the truth, they would not have
purchased the product.
The Village Company, LLC is a manufacturer of personal care
products, with its headquarters and principal place of business
located in Eden Prairie, Minnesota. [BN]
The Plaintiff is represented by:
Jason P. Sultzer, Esq.
Joseph Lipari, Esq.
Daniel Markowitz, Esq.
THE SULTZER LAW GROUP P.C.
270 Madison Avenue, Suite 1800
New York, NY 10016
Telephone: (845) 483-7100
Facsimile: (888) 749-7747
E-mail: sultzerj@thesultzerlawgroup.com
liparij@thesultzerlawgroup.com
markowitzd@thesultzerlawgroup.com
- and –
David C. Magagna Jr., Esq.
Charles E. Schaffer, Esq.
LEVIN SEDRAN & BERMAN
510 Walnut Street, Suite 500
Philadelphia, PA 19106
Telephone: (215) 592-1500
E-mail: dmagagna@lfsblaw.com
cschaffer@lfsblaw.com
VISION SOLAR: Sends Unsolicited Telemarketing Calls, Landy Says
---------------------------------------------------------------
BRENNAN LANDY, individually and on behalf of all others similarly
situated, Plaintiff v. VISION SOLAR, LLC d/b/a SOLAR EXCHANGE,
Defendant, Case No. 1:21-cv-20241 (D.N.J., November 29, 2021) is a
class action against the Defendant for violation of the Telephone
Consumer Protection Act.
The case arises from the Defendant's practice of placing
unsolicited telemarketing calls without prior express written
consent to consumers who registered their phone numbers on the
National Do Not Call Registry. As a result of the Defendant's
alleged misconduct, the Plaintiff and other consumers suffered
actual harm including aggravation, nuisance, and invasion of
privacy.
Vision Solar, LLC, doing business as Solar Exchange, is a solar
energy company based in Cherry Hill, New Jersey. [BN]
The Plaintiff is represented by:
Jeffrey S. Arons, Esq.
ARONS & ARONS, LLC
76 South Orange Ave., Suite 100
South Orange, NJ 07079
Telephone: (973) 762-0795
Facsimile: (973) 762-0279
E-mail: ja@aronslaw.net
- and –
Steven L. Woodrow, Esq.
Patrick H. Peluso, Esq.
Taylor T. Smith, Esq.
WOODROW & PELUSO, LLC
3900 East Mexico Avenue, Suite 300
Denver, CO 80210
Telephone: (720) 213-0675
Facsimile: (303) 927-0809
E-mail: swoodrow@woodrowpeluso.com
ppeluso@woodrowpeluso.com
tsmith@woodrowpeluso.com
VOLKSWAGEN AG: Settlement Reached in Transmission Class Action Suit
-------------------------------------------------------------------
David A. Wood at CarComplaints.com reports that a VW transmission
class action lawsuit settlement has been reached after customers
complained the 8-speed transmissions have multiple defects.
Volkswagen denies all the allegations and maintains the 2019 VW
Jetta and 2018-2020 VW Tiguan transmissions function properly and
are not defective. But the judge allowed the plaintiffs to amend
their class action lawsuit four times which finally sent Volkswagen
to the settlement table.
The VW transmission class action lawsuit was filed by three
customers.
California plaintiff Dominique Parrish owns a 2019 Volkswagen Jetta
and says the transmission rattles and hasn't been repaired by a
dealer.
California plaintiff Ludwig Combrinck leased a new 2018 Volkswagen
Tiguan and complained about a transmission oil leak which was
repaired under warranty, and hard shifting from first to second
gear which he claims was not repaired.
Utah plaintiff Trine Utne leased a new 2019 Volkswagen Tiguan and
complained of transmission hesitation problems which were not
repaired.
The plaintiffs allege Volkswagen "calibrated the Transmission's
software to engage higher gears at insufficient speeds and
insufficient revolutions per minute ('RPMs') and likewise
programmed the torque converter to lock up at insufficient speeds
and at insufficient RPMs."
The transmission class action lawsuit alleges the 8-speed
transmission "grates, scuffs, scrapes, grinds, suffers hard and
sudden shifts, delayed acceleration, hesitation, banging into gear,
and ultimately suffers broken seals and oil leaks, resulting in
catastrophic failure."
The 8-speed transmissions allegedly contain separate problems, with
certain 2019 Volkswagen Jetta vehicles suffering rattling noise
from the transmissions.
Then other 2019 Jettas suffer from transmission oil leaks from the
cooler seal rings, and 2018-2020 Volkswagen Tiguans allegedly
experience transmission hesitation or jerking.
VW Transmission Class Action Settlement
All current and former owners and lessees of 2019 Jettas may
receive software updates of the transmission control modules and
damper weights installed on the driveshafts.
The Jetta must be diagnosed as making rattling noise due to the
transmission, and the update will be available up to one year after
the class action notice date.
In addition, current or former owners or lessees of 2019 Volkswagen
Jettas may be reimbursed for expenses paid to repair a diagnosed
transmission rattling noise. The repairs must have been paid prior
to the notice date and within 72,000 miles from the in-service date
of the vehicle.
If the past transmission repair for noise was performed by a
non-Volkswagen dealership, the Jetta owner will need to show
documents to prove the owner first tried to have the repair
performed by a dealer under warranty but the VW dealer declined or
was unable to perform the repair for free under warranty.
Model year 2019 VW Jetta customers may also receive a warranty
extension based on the vehicle identification numbers. The
extension will cover repairs of transmission oil leaks caused by
the O-rings during a period of 12 months or 12,000 miles from the
original transmission warranty.
"The Warranty Extension is conditioned upon either (i) Service
Action 38C5 (entitled 'Transmission Oil Cooler Seals', issued by
VWGoA on March 25, 2020) having been performed on the vehicle prior
to said repair, or (ii) the Settlement Class Member providing a
declaration (that VWGoA's records do not otherwise contradict),
attesting that he/she/it was not previously notified of the
availability of Service Action 38C5, and that he/she/it had the
Service Action performed on that vehicle within thirty (30) days
after the Notice Date." - VW transmission settlement
VW Jetta customers may also be eligible for other reimbursements,
but several conditions currently exist to receive payments.
For customers of 2018-2020 Volkswagen Tiguans, the warranty will be
extended for 12 months or 12,000 miles for repairs related to
transmission hesitation and jerking.
Emissions Recall 24GB (entitled Engine and Transmission Control
Module (ECM/TCM issued by VW on September 16, 2020) must have been
previously performed prior to the extended warranty repair.
"Volkswagen is providing an Engine and Transmission Control Module
(ECM/TCM) software update to address elevated tailpipe emissions
that were found during vehicle testing. This software will also
improve drivability and provide other diagnostic improvements." -
Emissions Recall Code: 24GB
Tiguan customers may also be eligible for certain reimbursements
for paid repairs related to transmissions jerking and hesitating.
However, conditions apply and customers will need to provide
documentation.
Nothing about the VW transmission class action settlement is
official until the judge grants preliminary and then final approval
of the settlement agreement.
The VW transmission class action lawsuit was filed in the U.S.
District Court for the Central District of California: Parrish, et
al., v. Volkswagen Group of America, Inc.
The plaintiffs are represented by Capstone Law, and Berger
Montague. [GN]
WASATCH ADVANTAGE: Parties Seek to Vacate Class Cert. Schedule
--------------------------------------------------------------
In the class action lawsuit captioned as UNITED STATES OF AMERICA,
ex rel. DENIKA TERRY, ROY HUSKEY III, and TAMERA LIVINGSTON, and
each of them for themselves individually, and for all other persons
similarly situated and on behalf of the UNITED STATES OF AMERICA,
v. WASATCH ADVANTAGE GROUP, LLC, et al., Case No.
2:15-cv-00799-KJM-DB (E.D. Cal.), the parties stipulate and jointly
ask that the court order as follows:
1. That the deadline announced during the Scheduling
Conference for the Parties to file their Stipulation to
Amend the Class Certification Order is vacated; and
2. That no later than January 17, 2021, the Parties shall
either file their Stipulation to Amend the Class
Certification Order or a Status Report regarding the same.
This Court has previously certified both a Rule 23(b)(3) Class and
a Rule 23(b)(2) Class in this case.
The Defendants include WASATCH PROPERTY MANAGEMENT, INC., WASATCH
POOL HOLDINGS, LLC, CHESAPEAKE APARTMENT HOLDINGS, LLC, LOGAN PARK
APARTMENTS, LLC, LOGAN PARK APARTMENTS, LP, ASPEN PARK HOLDINGS,
LLC, BELLWOOD JERRON HOLDINGS, LLC, BELLWOOD JERRON APARTMENTS, LP,
BENT TREE APARTMENTS, LLC, CALIFORNIA PLACE APARTMENTS, LLC,
CAMELOT LAKES HOLDINGS, LLC, CANYON CLUB HOLDINGS, LLC, COURTYARD
AT CENTRAL PARK APARTMENTS, LLC, CREEKSIDE HOLDINGS, LTD, HAYWARD
SENIOR APARTMENTS, LP, HERITAGE PARK APARTMENTS, LP, OAK VALLEY
APARTMENTS, LLC, OAK VALLEY HOLDINGS, LP, PEPPERTREE APARTMENT
HOLDINGS, LP, PIEDMONT APARTMENTS, LP, POINT NATOMAS APARTMENTS,
LLC, POINT NATOMAS APARTMENTS, LP, RIVER OAKS HOLDINGS, LLC, SHADOW
WAY APARTMENTS, LP, SPRING VILLA APARTMENTS, LP, SUN VALLEY
HOLDINGS, LTD, VILLAGE GROVE APARTMENTS, LP, WASATCH QUAIL RUN GP,
LLC, WASATCH PREMIER PROPERTIES, LLC, WASATCH POOL HOLDINGS III,
LLC, and DOES 1-4.
A copy of the Parties' motion dated Dec. 1, 2021 is available from
PacerMonitor.com at https://bit.ly/3ppZuNk at no extra charge.[CC]
The Plaintiffs are represented by:
Laura L. Ho, Esq.
Anne Bellows, Esq.
Kristen A. Burzynski, Esq.
GOLDSTEIN, BORGEN, DARDARIAN & HO
155 Grand Avenue, Suite 900
Oakland, CA 94612
Telephone: (510) 763-9800
E-mail: lho@gbdhlegal.com
abellows@gbdhlegal.com
kburzynski@gbdhlegal.com
- and -
Andrew Wolff, Esq.
LAW OFFICES OF ANDREW WOLFF, PC
1615 Broadway, 4th Floor
Oakland, CA 94612
Telephone: (510) 834-3300
Facsimile: (510) 834-3377
E-mail: andrew@awolfflaw.com
- and -
Jesse Newmark, Esq.
CENTRO LEGAL DE LA RAZA
3022 International Blvd., Suite 410
Oakland, CA 94601
Telephone: (510) 437-1863
Facsimile: (510) 437-9164
E-mail: jessenewmark@centrolegal.org
- and -
Jocelyn D. Larkin, Esq.
Lindsay Nako, Esq.
THE IMPACT FUND
2080 Addison Street, Suite 5
Berkeley, CA 94701
Telephone: (510) 845-3473
Facsimile: (510) 845-3654
E-mail: lnako@impactfund.org
jlarkin@impactfund.org
WENZAK HEARTLAND: Bachmann Sues Over Storing Employees' Biometrics
------------------------------------------------------------------
MICHAEL BACHMANN, individually and on behalf of all others
similarly situated, Plaintiff v. WENZAK HEARTLAND, INC. and WENZAK,
INC., Defendants, Case No. 2021L001253 (Ill. Cir. Ct., 18th Jud.
Ct., Dupage Cty., November 29, 2021) is a class action against the
Defendants for violation of the Biometric Information Privacy Act.
According to the complaint, the Defendants disregarded their
employees' statutorily protected privacy rights by unlawfully
collecting, storing, and using their biometric data. Specifically,
Wenzak has allegedly violated the BIPA because it did not: (a)
properly inform the Plaintiff and Class members in writing of the
specific purpose and length of time for which their fingerprints
were being collected, stored, and used; (b) provide a publicly
available retention schedule and guidelines for permanently
destroying the Plaintiff and Class members' fingerprints; nor (c)
receive a written release from the Plaintiff or Class members to
collect, capture, or otherwise obtain fingerprints.
Wenzak Heartland, Inc. is a corporation based in Naperville,
Illinois.
Wenzak, Inc. is a food production company doing business in
Illinois. [BN]
The Plaintiff is represented by:
Mara Baltabols, Esq.
FISH POTTER BOLANOS, P.C.
200 East Fifth Avenue, Suite 123
Naperville, IL 60563
Telephone: (312) 861-1800
WISCONSIN: District Court Dismisses Shaw v. RCI With Prejudice
--------------------------------------------------------------
Judge Joseph Peter Stadtmueller of the U.S. District Court for the
Eastern District of Wisconsin dismissed the case, TERRANCE J. SHAW,
Plaintiff v. PAUL S. KEMPER, JASON WELLS, STEPHANIE ONEIL,
LIEUTENANT CRUZ, JOHN/JANE DOE 1-21, LEAH M. ZENI, EMILY DAVIDSON,
and CINDY ODONNELL, Defendants, Case No. 21-CV-622-JPS (E.D. Wis.),
with prejudice.
I. Introduction
Initially, the case had multiple pro se Plaintiffs -- a group of
inmates at Racine Correctional Institution ("RCI") -- who filed a
complaint alleging that the Defendants violated their First, Fifth,
Eighth, and Fourteenth Amendment rights. The Plaintiffs filed a
motion for class certification, and a motion to appoint counsel. On
June 7, 2021, the Court denied the Plaintiffs' motion for class
certification and denied their motion to appoint counsel.
Additionally, the Court ordered that the Plaintiffs wishing to
proceed in the case jointly sign and file one complaint by July 7,
2021. It warned that any Plaintiff that did not sign the complaint
and/or did not file a motion to proceed in forma pauperis or pay
the full $402 filing fee by July 7, 2021, would be dismissed from
the case without prejudice. On July 19, 2021, the Court dismissed
all the Plaintiffs except Terrance J. Shaw because they failed to
file a jointly-signed complaint and failed to file a motion to
proceed in forma pauperis or paid the full $402 filing fee by the
July 7, 2021 deadline.
Accordingly, the case now only has one Plaintiff, Shaw, a former
inmate of RCI. The Plaintiff's pro se complaint under 42 U.S.C.
Section 1983 alleges that the Defendants violated his First, Fifth,
Eighth, and Fourteenth Amendment rights. Additionally, on July 27,
2021, the Plaintiff filed another motion to appoint counsel, and
motion for class certification.
Judge Stadtmueller screens the Plaintiff's complaint and resolves
his pending motions.
II. Screening the Complaint
A. Plaintiff's Allegations
The alleged events took place at RCI during the COVID-19 pandemic.
The Plaintiff names the following RCI employees as Defendants:
Warden Paul S. Kemper, Deputy Warden Jason Wells, security director
Stephanie O'Neil, supervisor Lieutenant Cruz, and 21 John/Jane Doe
correctional officers. Additionally, the Plaintiff has named inmate
complaint examiner ("ICE") Leah M. Zeni ("ICE Zeni"), corrections
complaint examiner ("CCE") Emily Davidson ("CCE Davidson"), and
Office of the Secretary Cindy O'Donnell as Defendants. The
Plaintiff states that all the Defendants are sued in their official
and individual capacities.
On March 4, 2021, around 9:30 p.m., the Plaintiff and the
approximately 192 other inmates on the Kenosha Housing Unit at RCI
were subjected to a "shake-down" search of their cells. The search
was authorized by O'Neil and carried out by Cruz and the Doe
Officers.
The Plaintiff asserts that Cruz and the Doe Officers were not
wearing face masks during the search. While the search was being
conducted, the Kenosha Unit inmates were forced to go outside in
the freezing cold without coats, socks, hats, gloves, or scarves,
and walk approximately 100 yards to the RCI Gym where they were
directed to stay until the search was completed. While inside the
Gym, the Plaintiff and the other Kenosha Unit inmates were forced
to sit side-by-side on the bleachers for two hours, putting them at
risk of contracting COVID-19. He alleges that requiring the Kenosha
Unit inmates to sit side-by-side was a violation of Wisconsin's
COVID-19 pandemic procedures which required six feet of separation
between the inmates. Because the COVID-19 procedures were not
followed, Plaintiff claims that evening was a "super-spreader
event."
Additionally, the Plaintiff states that RCI closed the Gym to all
inmates during the COVID-19 pandemic because it did not have enough
space for the inmates to adequately socially distance. He also
states that during the times when the Gym was open to inmates
during the COVID-19 pandemic, RCI only allowed half of a housing
unit to occupy it at one time. However, on March 4, 2021, the
entire Kenosha Unit -- consisting of approximately 192 inmates --
was put inside the Gym to wait while the search was completed.
On March 5, 2021, the Plaintiff filed an inmate complaint regarding
the March 4, 2021 event. In the inmate complaint, the Plaintiff
stated that the RCI security staff and Cruz violated his medical
health rules and put his "life at risk of exposure to COVID-19 from
a Super-Spreader event" that did not follow the RCI Health Service
Unit ("HSU") and Wisconsin's COVID-19 protocol regarding social
distancing.
Ultimately, the Plaintiff's inmate complaint was dismissed, and his
appeal was dismissed as well.
On March 9, 2021, RCI's Kenosha Unit was put on lockdown because
new COVID-19 cases were discovered during testing. The Plaintiff
alleges that the new COVID-19 cases were a result of the
"super-spreader event" on March 4, 2021. However, he contracted
COVID-19.
Lastly, the Plaintiff states that the "Action Is for Money Damages
for Eighth Amendment Violations" and requests the following relief:
(1) "Declaratory Judgment, or an Order that RCI Violated a State
Protection Covid-19 Mandate, and the workplace did Not follow the
U.S. Constitution;" (2) "Compensatory Damages pursuant to Fed. R.
Civ. P. 23(b)(3) from each of the Defendants to each Class Action
Plaintiff the amount of $250,000;" (3) "Punitive Damages pursuant
to Fed. R. Civ. P. 23(b)(3) from each of the Defendants to each
Class Action Plaintiff the amount of $250,000;" and (4) "Presumed
Damages pursuant to Fed. R. Civ. P. 23(b)(3) from each of the
Defendants to each Class Action Plaintiff the amount of $250,000."
Analysis
In order to demonstrate a violation of the Eighth Amendment, a
prisoner must make two showings. "First, the deprivation alleged
must be, objectively, sufficiently serious." "For a claim based on
a failure to prevent harm, the inmate must show that he is
incarcerated under conditions posing a substantial risk of serious
harm." The second requirement is that the prison official was
deliberately indifferent "to inmate health or safety," meaning that
the prison official was both aware of and disregarded "an excessive
risk to inmate health or safety."
1. Outside in Freezing Temperatures
The Plaintiff claims that his Eighth Amendment rights were violated
when he and the other Kenosha Unit inmates were forced to walk
outside in freezing temperatures, without coats, socks, hats,
gloves, or scarves, and walk approximately 100 yards to the RCI
Gym. He does not allege that he was subjected to the freezing
temperatures for a long period of time or that he suffered any
injury as a result of going outside to travel 100 yards.
Although undoubtably uncomfortable, Judge Stadtmuller holds that
this event is not sufficiently serious to rise to the level of a
Constitutional violation. The Plaintiff's allegations, taken as
true, do not constitute "extreme deprivations" that denied him the
minimal life necessities. Therefore, he will dismiss the
Plaintiff's claims arising from the 100-yard walk outside in
freezing temperatures for failure to state a claim.
2. Risk of COVID-19 Exposure
The Plaintiff claims that his Eighth Amendment rights were violated
when he was forced to sit side-by-side on the Gym bleachers for two
hours, which put him at risk of contracting COVID-19. He alleges
that requiring the Kenosha Unit inmates to sit side-by-side with
other inmates was a violation of the RCI HSU and Wisconsin's
COVID-19 pandemic protocols, which required six feet of separation
between the inmates.
Judge Stadtmueller finds that the Plaintiff has failed to state a
claim on these allegations. First, the Plaintiff's claim that the
Defendants violated the CDC guidelines which the RCI HSU and the
State of Wisconsin incorporated into their COVID-19 protocols do
not state a federal or constitutional claim under Section 1983.
Second, the Plaintiff's allegations that Defendants violated the
RCI HSU and Wisconsin's COVID-19 protocols do not state a claim
under Section 1983. Third, the Plaintiff has not alleged that he
has suffered any injury from the alleged Eighth Amendment
violation. Therefore, because the Plaintiff has not alleged that he
suffered any injury from the Defendants' deliberate indifference,
he has failed to state a claim.
IV. Conclusion
In sum, Judge Stadtmueller concludes that the Plaintiff has failed
to state a claim, and he will dismiss his case. Accordingly, the
Judge will deny the Plaintiff's as moot pending motion to appoint
counsel, and motion to certify class.
Accordingly, the case is dismissed with prejudice under 28 U.S.C.
Section 1915(e)(2)(B) and 1915A(b)(1) because the complaint fails
to state a claim. The Plaintiff's motion to appoint counsel and
motion to certify class are denied as moot.
The Clerk of Court document that this inmate has incurred a
"strike" under 28 U.S.C. Section 1915(g). The Order and the
judgment to follow are final. A dissatisfied party may appeal the
Court's decision to the Court of Appeals for the Seventh Circuit by
filing in the Court a notice of appeal within 30 days of the entry
of judgment. The Court may extend this deadline if a party timely
requests an extension and shows good cause or excusable neglect for
not being able to meet the 30-day deadline. ).
Under limited circumstances, a party may ask the Court to alter or
amend its judgment under Federal Rule of Civil Procedure 59(e) or
ask for relief from judgment under Federal Rule of Civil Procedure
60(b). Any motion under Federal Rule of Civil Procedure 59(e) must
be filed within 28 days of the entry of judgment. The Court cannot
extend this deadline. Any motion under Federal Rule of Civil
Procedure 60(b) must be filed within a reasonable time, generally
no more than one year after the entry of the judgment. The Court
cannot extend this deadline.
A party is expected to closely review all applicable rules and
determine, what, if any, further action is appropriate in a case.
The Clerk of Court is directed to enter judgment accordingly.
A full-text copy of the Court's Nov. 23, 2021 Order is available at
https://tinyurl.com/7bzur49z from Leagle.com.
ZHANGMEN EDUCATION: Faces Banerjee Suit Over Drop in Share Price
----------------------------------------------------------------
SAURAV BANERJEE, individually and on behalf of all others similarly
situated, Plaintiff v. ZHANGMEN EDUCATION INC.; YI ZHANG; RICKY
KWOK YIN NG; TENG YU; COGENCY GLOBAL INC.; COLLEEN A. DE VRIES;
MORGAN STANLEY & CO. LLC; and CREDIT SUISSE SECURITIES (USA) LLC,
Defendants, Case No. 1:21-cv-09634 (S.D.N.Y., Nov. 19, 2021) is a
federal securities class action on behalf of all those who
purchased or otherwise acquired the American Depositary Shares
("ADSs") of Zhangmen in or traceable to the Company's initial
public offering (the "IPO"), conducted on or about June 8, 2021,
pursuant to the IPO prospectus (the "Prospectus") and Form F-1
registration statement, as amended (together with the Prospectus,
the "Registration Statement"), seeking to pursue remedies under the
Securities Act of 1933 (the "Securities Act").
The Plaintiff alleges in the complaint that the Registration
Statement prepared by the Defendants was negligently prepared and,
as a result, contained untrue statements of material fact, omitted
material facts necessary to make the statements contained therein
not misleading, and failed to make adequate disclosures required
under the rules and regulations governing the preparation of such
documents.
Zhangmen was the registrant for the IPO. As an issuer of securities
to the public, Zhangmen is strictly liable to the Plaintiff and the
Class for the materially inaccurate statements in the Registration
Statement, the failure of the Registration Statement to be
complete, and the failure of the Registration Statement to disclose
material information required pursuant to the regulations governing
its preparation.
As of the filing of this Complaint, Zhangmen ADSs trade at less
than $2 per ADSs, more than 80% below the IPO price, says the
suit.
Zhangmen Education Inc. operates as an online education company.
The Company focuses on providing personalized online courses to
K-12 students. Zhangmen Education serves students in China. [BN]
The Plaintiff is represented by:
Samuel H. Rudman, Esq.
ROBBINS GELLER RUDMAN
& DOWD LLP
58 South Service Road, Suite 200
Melville, NY 11747
Telephone: (631) 367-7100
Facsimile: (631) 367-1173
Email: srudman@rgrdlaw.com
-and-
Brian E. Cochran, Esq.
ROBBINS GELLER RUDMAN
& DOWD LLP
200 South Wacker Drive, 31st Floor
Chicago, IL 60606
Telephone: (312) 674-4674
Facsimile: (312) 674-4676
Email: bcochran@rgrdlaw.com
-and-
Ralph M. Stone, Esq.
JOHNSON FISTEL, LLP
1700 Broadway, 41st Floor
New York, NY 10019
Telephone: (212) 292-5690
Facsimile: (212) 292-5680
Email: ralphs@johnsonfistel.com
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