/raid1/www/Hosts/bankrupt/CAR_Public/211213.mbx
C L A S S A C T I O N R E P O R T E R
Monday, December 13, 2021, Vol. 23, No. 242
Headlines
107 NORTH AMERICA: Slade Files ADA Suit in S.D. New York
27 ROSIERS INC: Slade Files ADA Suit in S.D. New York
9199-4467 QUEBEC INC: Natale Files Suit in E.D. New York
AHO ENTERPRISES: $1.1MM Class Deal in Ortega Suit Has Prelim. Nod
BANK OF AMERICA: Court OKs Exclusion From Class in FX Rates Suit
BEST EXPRESS: Tapia Files Suit in Cal. Super. Ct.
BLACK DIAMOND: Slade Files ADA Suit in S.D. New York
BLUETTI POWER: Fischler Files ADA Suit in E.D. New York
BOISE DISTRICT #1: Wins Bid for Protective Order in Zeyen Suit
BRIGHAM YOUNG: Judgment Bid in Evans Suit Denied W/o Prejudice
BRISTOL MYERS: Faces Suit Over COVID Vaccination Mandate
BRISTOL-MYERS SQUIBB: Faces Class Action Over Title VII Violations
CAMBER ENERGY: Gross Law Firm Reminds of December 28 Deadline
CANADA: Ottawa Seeks Dismissal of RCMP $1.1BB Class Action
CAPE MOUNT: Gray Files FLSA Suit in E.D. New York
CHARTER COMMUNICATIONS: Appeal Certification in Harper Suit Denied
CIGNA HEALTH: Expands Liposuction Coverage Under Settlement
CINCINNATI CAPITAL: Lee's Bid for Sanctions and Contempt Denied
CITRIX SYSTEMS: ClaimsFiler Reminds of January 18 Deadline
D-MARKET ELEKTRONIK: Kirby McInerney Reminds of Dec. 20 Deadline
DAIFUKU NORTH: Shaw Suit Remanded to Sacramento County Super. Court
DOUYU INT'L: Plaintiffs' Objection to Dismissal Bid Due Dec. 15
EQUIFAX INFORMATION: Torres Files FCRA Suit in M.D. Pennsylvania
GEBRUEDER KNAUF: Karma Zelenenki Files Suit in S.D. Florida
GEBRUEDER KNAUF: Michael Zelenenki Files Suit in S.D. Florida
GENERAL MOTORS: Bid to Dismiss & Strike Class Claims in Talley OK'd
GENERAL MOTORS: Johnson's Bid to Intervene in Martell Suit Denied
HILCORP ENERGY: Amended Carl Complaint Dismissed Without Prejudice
HOMELAND INSURANCE: Williams Suit Must Be Remanded to State Court
HYBRID GRADING: Cruz Files ADA Suit in S.D. New York
JOHNSON CONTROLS: Smykla Appeals Securities Suit Dismissal
KRAFT HEINZ: Faces Class Action Over MiO Artificial Flavoring
LAWPRACTICECLE LLC: M.D. Florida Refuses to Dismiss Goren ADA Suit
LIFE EXTENSION: Tavarez-Vargas Files ADA Suit in S.D. New York
LOGITECH INC: Tavarez-Vargas Files ADA Suit in S.D. New York
LOUISIANA: Court Reverses Grant of Bid to Strike in Powell Suit
MERRILL LYNCH: New York Court Closes Other Cases in Spoofing Suit
MITSUBISHI AUSTRALIA: Bannister Law Sues Over Fuel Economy Claims
MR. CAR WASH: Faces Lao Suit Over Failure to Pay Proper Wages
NBT BANK: Seeks Court Approval of $5.7MM Overdraft Fee Settlement
NOOSPHERE VENTURES: Tavarez-Vargas Files ADA Suit in S.D. New York
NORTHSHORE UNIVERSITY: Prelim. Class Cert. in Jane Does Suit Denied
NOVAVAX INC: Faces Class Action Over Securities Violations
ODYSSEY LANDSCAPING: Hernandez Files Suit in Cal. Super. Ct.
OKA PRODUCTS: Carrano Files Suit in E.D. New York
OLE MEXICAN FOODS: Hardy Files Suit in W.D. New York
PACIFIC COAST: Sanchez Files Suit in Cal. Super. Ct.
PELOTON INTERACTIVE: Bernstein Liebhard Reminds of Jan. 18 Deadline
PELOTON INTERACTIVE: Bronstein Gewirtz Reminds of Jan. 18 Deadline
PELOTON INTERACTIVE: ClaimsFiler Reminds of January 18 Deadline
PFIZER INC: Faces Another Suit Over Toxic Chemicals in Chantix
PILGRIM'S PRIDE: Court Refuses to Review Dismissal of Hogan Suit
PLAYTIKA HOLDING: Howard G. Smith Reminds of January 24 Deadline
PLAYTIKA HOLDING: Wolf Haldenstein Reminds of January 24 Deadline
POWER HOME: Files Certiorari Petition in Rickenbaugh Suit
REALPAGE UTILITY: Court Affirms PU Section 7-304 in Moore Suit
REXIGEN THERAPEUTICS: $4.8M Class Deal in Khoja Suit Wins Final OK
SHELBY COUNTY, TN: Class Action Mulled Over Cash Bail Practices
SIMMONS PREPARED: Smith Appeals Judgment in FLSA Suit to 8th Cir.
STONECO LTD: Bernstein Liebhard Reminds of January 18 Deadline
SUNOCO INC: Writ of Mandamus Filed in Cline Breach of Contract Suit
SUNRISE SENIOR: Appeals Class Cert. Ruling in Heredia Suit
UBER TECHNOLOGIES: Faces Price Gouging Class Action in New York
UNITED AIRLINES: Faces Class Action Over Early Out Benefits
UNITED LAUNCH: Creger's Bid for Prelim. Injunction and TRO Denied
UNIVERSITY OF MIAMI: Settles Retirement Plan Class Action Suit
US DOMINION: Plaintiffs Must Defend Cooper Suit From Dismissal
VAXART INC: Delaware Court Narrows Claims in Stockholder Suit
WILCO LIFE: 11th Cir. Affirms Dismissal of COI Rate Class Action
ZHANGMEN EDUCATION: Kirby McInerney Reminds of Jan. 18 Deadline
ZOOM VIDEO: Settles Zoombombing Class Action Lawsuit
*********
107 NORTH AMERICA: Slade Files ADA Suit in S.D. New York
--------------------------------------------------------
A class action lawsuit has been filed against 107 North America
Inc. The case is styled as Linda Slade, individually and as the
representative of a class of similarly situated persons v. 107
North America Inc., Case No. 1:21-cv-10435 (S.D.N.Y., Dec. 7,
2021).
The lawsuit is brought over alleged violation of the Americans with
Disabilities Act.
107 North America Inc. is in the Cosmetics business.[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
27 ROSIERS INC: Slade Files ADA Suit in S.D. New York
-----------------------------------------------------
A class action lawsuit has been filed against 27 Rosiers Inc. The
case is styled as Linda Slade, individually and as the
representative of a class of similarly situated persons v. 27
Rosiers Inc., Case No. 1:21-cv-10436 (S.D.N.Y., Dec. 7, 2021).
The lawsuit is brought over alleged violation of the Americans with
Disabilities Act.
27 Rosiers -- https://27rosiers.com/ -- is an emerging clean beauty
brand that balances the best of nature and science.[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
9199-4467 QUEBEC INC: Natale Files Suit in E.D. New York
--------------------------------------------------------
A class action lawsuit has been filed against 9199-4467 Quebec Inc.
The case is styled as Meganne Natale, Chelsea Cheng, on behalf of
themselves and all others similarly situated v. 9199-4467 Quebec
Inc. doing business as: Earth Rated, Case No. 2:21-cv-06775-JS-SIL
(E.D.N.Y., Dec. 7, 2021).
The nature of suit is stated as Fraud or Truth-In-Lending.
Earth Rated -- https://earthrated.com/ -- is a small Canadian
company making the best poop bags.[BN]
The Plaintiffs are represented by:
Max Stuart Roberts, Esq.
BURSOR & FISHER, P.A.
888 Seventh Ave., Third Floor
New York, NY 10019
Phone: (646) 837-7150
Fax: (212) 989-9163
Email: mroberts@bursor.com
AHO ENTERPRISES: $1.1MM Class Deal in Ortega Suit Has Prelim. Nod
-----------------------------------------------------------------
In the case, JOSE SALVADOR SANDOVAL ORTEGA, et al., Plaintiffs v.
AHO ENTERPRISES, INC., et al., Defendants, Case No. 19-cv-00404-DMR
(N.D. Cal.), Magistrate Judge Donna M. Ryu of the U.S. District
Court for the Northern District of California granted the
Plaintiffs' motion for preliminary approval of the parties' class
action settlement agreement.
Introduction
Plaintiffs Jose Salvador Sandoval Ortega, J. Guadalupe Alaniz,
Efrain Henriquez, Norberto Rodriguez, Jose Luis Correa Martinez,
Melvin Efrain Godoy Ramirez, Eduardo Rodriguez, Rodolfo Vazquez,
Daniel Valencia, and Jose Valencia filed the action alleging wage
and hour claims under federal and state law against Defendants Aho
Enterprises, Inc., doing business as Superior Body Shop, Jack Aho,
Issa Aho, and Hani Aho, on behalf of themselves and a putative
class of current and former non-exempt employees. In August 2020,
the Court certified two subclasses and two derivative subclasses
and certified a Fair Labor Standards Act ("FLSA") collective
action.
The Plaintiffs now move for preliminary approval of the parties'
class action settlement agreement. The Court ordered the Plaintiffs
to submit supplemental briefing in support of the motion for
preliminary approval, which the Plaintiffs timely filed on Oct. 12,
2021. The Court held a hearing on Oct. 14, 2021 and ordered
additional supplemental briefing and evidence in support of the
motion, and ordered the Class Counsel to make revisions to the
proposed Class Notice. The Plaintiffs timely filed the second round
of supplemental briefing, evidence, and revised proposed Class
Notice.
Background
The Plaintiffs filed the action on Jan. 23, 2019. In the second
amended complaint, which is the operative complaint, the Plaintiffs
plead the following claims for relief: 1) failure to pay overtime
in violation of the FLSA, 29 U.S.C. Section 201 et seq.; 2) failure
to pay overtime in violation of California Labor Code sections 500,
510, 1194, and the applicable wage order; 3) failure to pay minimum
wage in violation of California Labor Code sections 226, 226.6,
1194, 1194.2, 1197 and the applicable wage order; 4) failure to
provide rest periods in violation of California Labor Code sections
203, 226, 226.7, 1194, and the applicable wage order; 5) failure to
provide meal periods in violation of California Labor Code sections
203, 226, 226.7, 512, 1194, and the applicable wage order; 6)
failure to pay wages at termination in violation of California
Labor Code sections 201, 202, and 203; 7) failure to provide
accurate and itemized wage statements in violation of California
Labor Code sections 226, 1174, 1175, and the applicable wage order;
8) violation of California Business and Professions Code section
17200 et seq., the unfair competition law; and 9) civil penalties
under the Private Attorneys General Act ("PAGA"), California Labor
Code section 2698, et seq.
The Plaintiffs moved for certification under Federal Rule of Civil
Procedure 23 of a class of all non-exempt production employees,
including body shop technicians, technician helpers, detailers,
painters, and painter helpers, who were employed by Aho
Enterprises, Inc. in the State of California at any time from Jan.
23, 2015 to Sept. 30, 2019. They also sought certification of three
subclasses and two derivative subclasses. The Plaintiffs also
sought conditional certification of the following FLSA collective
action: All non-exempt production employees, including body shop
technicians, technician helpers, detailers, painters, and painter
helpers, who were employed by Aho Enterprises, Inc. in the State of
California at any time from Jan. 23, 2016 to Sept. 30, 2019, who
worked more than 40 hours a week.
On Aug. 10, 2020, the Court granted in part and denied in part the
motion for class certification. It certified the following
subclasses:
a. Overtime Pay Subclass: All non-exempt production employees,
including body shop technicians, technician helpers, detailers,
painters, and painter helpers, who were employed by Aho
Enterprises, Inc. in the State of California at any time from Jan.
23, 2015 to Sept. 30, 2019, who worked in excess of eight hours in
any workday or 40 hours in a week without proper overtime pay.
b. Rest Period Subclass: All non-exempt production employees,
including body shop technicians, technician helpers, detailers,
painters, and painter helpers, who were employed by Aho
Enterprises, Inc. in the State of California at any time from Jan.
23, 2015 to Sept. 30, 2019, who worked shifts of at least three and
one-half hours in any workday, who had their rest and meal periods
combined.
The Court also certified two derivative subclasses under California
Labor Code section 226 for the Defendants' alleged failure to
provide accurate wage statements, and under California Labor Code
sections 201, 202, and 203 based on the Defendants' alleged failure
to pay all wages owed upon an employee's termination or
resignation.
Additionally, the Court conditionally certified the following
collective action under the FLSA: all non-exempt production
employees, including body shop technicians, technician helpers,
detailers, painters, and painter helpers, who were employed by Aho
Enterprises, Inc. in the State of California at any time from Jan.
23, 2016 to Sept. 30, 2019, who worked more than 40 hours a week.
The Court appointed Jose Salvador Sandoval Ortega, J. Guadalupe
Alaniz, Efrain Henriquez, Norberto Rodriguez, Jose Luis Correa
Martinez, Melvin Efrain Godoy Ramirez, Eduardo Rodriguez, Rodolfo
Vazquez, Daniel Valencia, and Jose Valencia as the Class
Representatives. It appointed Mallison & Martinez as the Class
Counsel.
In April 2020, the parties attended a mediation session before
Judge Kevin Murphy (ret.). In October 2020, after the Court's order
on class certification, the parties attended a second mediation
session before Judge Murphy. The case did not settle. The parties
participated in a settlement conference before Chief Magistrate
Judge Joseph C. Spero on Feb. 25, 2021 at which they reached an
agreement in principle to settle the case. The parties executed a
long-form settlement agreement in August 2021.
The Settlement Agreement defines "Class" to mean "the combined
class members in the Lawsuit," set forth as follows: All non-exempt
production employees, including body shop technicians, technician
helpers, detailers, painters, and painter helpers, who were
employed by Defendants in the State of California at any time from
Jan. 23, 2015 to Sept. 30, 2019.
The Defendants agree to pay a total of $1.1 million (the "Gross
Settlement Amount") to create a non-reversionary Qualified
Settlement Fund created by the Settlement Administrator. They will
pay the Gross Settlement Amount to the Settlement Administrator in
installments, as follows: The Defendants will pay the initial sum
of $400,000 within 20 days of final approval and pay the balance in
eight quarterly payments of $75,000 (totaling $600,000), with a
final payment of $100,000 due no later than 820 days after final
approval.
The following will be deducted from the Gross Settlement Amount: 1)
"Class Representative Payments" of up to $7,500 to each of the ten
Class Representatives; 2) Class Counsel's attorneys' fees, not
exceeding one-third of the Gross Settlement Amount ($366,667) and
litigation expenses not exceeding $12,000; 3) the Settlement
Administrator's fees and expenses, estimated at $3,499; and 4)
payment of up to $37,500 to the Labor Workforce Development Agency
("LWDA") to settle the PAGA claim asserted in the SAC. The
remainder following those deductions, approximately $605,334,
constitutes the Net Settlement Amount from which individual class
members will be paid "Settlement Shares."
The Settlement Agreement contains a provision that in the event
"the final number of workweeks increases by more than 5% prior to
final approval of the settlement, then the Gross Settlement Amount
of $1.1 million will increase on a prorated basis based upon the
percentage increase in additional work weeks."
The Settlement Administrator will pay a Settlement Share from the
Net Settlement Amount to the Participating Class Members based on a
"tiered pro rata share of the balance of the Net Settlement
Amount." The Settlement Share for each Participating Class Member
will be calculated as follows: The Settlement Share for each
Participating Class Member will be based on (a) that Participating
Class Member's total number of workweeks in which the Class Member
was employed by Defendants during the Class Period (b) divided by
the aggregate number of workweeks for Defendants of all
Participating Class Members during the Settlement Class Period (c)
multiplied by the value of the Net Settlement Amount.
Participating Class Members do not have to submit a claim form in
order to receive a Settlement Share; the Settlement Administrator
will mail settlement checks to all Class Members who do not timely
exclude themselves from the settlement. The Settlement
Administrator will make two distributions of the Net Settlement
Amount to Participating Class Members.
The first distribution will be made following the second quarterly
payment, at which time the Qualified Settlement Fund will equal
$550,000. The first distribution will include all Class
Representative Payments approved by the Court; the entire payment
to the LWDA; and a first pro rata distribution to Participating
Class members. Participating Class Members will have 180 days from
the issuance date to cash the settlement checks. The 180-day
expiration date of the checks will be printed on the face of the
checks. Any Participating Class Members who have not cashed the
checks 145 days after issuance will receive a reminder postcard
from the Settlement Administrator. If the Settlement Administrator
re-issues a settlement check after the initial distribution, the
recipient will have an additional 180 days to cash the check but
the Settlement Administrator will not mail reminder postcards for
re-issued checks. Any uncashed checks which remain uncashed as of
the date of the second and final distribution will be added to the
distribution to the remaining Participating Class Members on a pro
rata basis.
The second distribution will take place after the final payment is
made by the Defendants into the Qualified Settlement Fund, which is
no later than 830 days after the date of Final Approval. The second
distribution will include payment of Class Counsel fees and
expenses; payment of the Settlement Administrator's expenses; and a
second pro rata distribution to the Participating Class Members.
Any checks that remain uncashed after 90 days of the final
distribution will be voided and the amount will be allocated to a
suitable cy pres recipient. The Class Counsel states that they will
propose California Rural Legal Assistance ("CRLA") and/or Legal Aid
at Work ("LAAW") as cy pres recipients at final approval.
The Class Representative Payments will be treated and allocated as
follows: 10% as wages reportable on IRS W-2 forms and 90% as
penalties and interest reportable on IRS Form 1099.
Within 14 calendar days of preliminary approval, the Defendants
will provide the Settlement Administrator with the names, most
recent mailing address and telephone number, Social Security
number, and the number of workweeks each Class Member worked during
the applicable period. Within 10 days after receipt of this
information, the Settlement Administrator will mail the Class
Notice to Class Members via first-class U.S. Mail and email, where
email addresses are available. The Class Members will have 40
calendar days from the mailing of the Class Notice to submit
"Elections Not to Participate" or objections.
As noted, the Settlement Administrator's fees and expenses will be
paid from the Gross Settlement Amount. The Class Counsel proposes
appointing Simpluris, Inc. as the Settlement Administrator.
Simpluris' fee for administering the settlement is $3,499.
Conclusion
Judge Ryu granted the motion for preliminary approval is granted.
The Settlement Agreement is preliminarily approved as fair,
adequate, and reasonable pursuant to Rule 23(e).
Simpluris, Inc. is appointed as the Administrator.
The revised proposed Class Notice is approved as to form and
content. The parties will have discretion to jointly make
non-material minor revisions to the claim forms or the class
notices. Responsibility regarding settlement administration will be
performed by the Administrator, subject to the oversight of the
parties and the Court as described in the Settlement Agreement. The
costs of providing notice to the Class Members and for
administering the settlement will be paid out of the Settlement
Fund, as provided in the Settlement Agreement.
The procedures for Class Members to exclude themselves from or
object to the settlement are approved. Any request for exclusion by
a Class Member must be postmarked by Feb. 2, 2022. Any objection by
a Class Member must be mailed to the Court and postmarked by Feb.
2, 2022 and in compliance with the terms of the Settlement
Agreement.
The parties will file any memoranda or other materials in support
of final approval of the Settlement Agreement by Feb. 17, 2022 and
will file responses to any timely and valid objection to the
Settlement Agreement by the same date. Such materials will be
served on the Class Counsel, the defense counsel, and on any member
of the Class (or their counsel, if represented by counsel) to whose
objection to the Settlement Agreement the memoranda or other
materials respond.
The Plaintiffs' claims against the Defendants are stayed.
The Counsel for the parties are authorized to utilize all
reasonable procedures in connection with the administration of the
Settlement Agreement which are not materially inconsistent with
either the Order or the terms of the Settlement Agreement.
The following deadlines will apply:
a. Deadline for the Defendants to provide to Settlement
Administrator the Class List, including mailing address, telephone
number, Social Security Number, and the number of workweeks per
Class Member - Dec. 14, 2021
b. Deadline for the Settlement Administrator to mail the Class
Notice - Dec. 24, 2021
c. Deadline for the Class Members to submit
objections/requests for exclusion - Feb. 2, 2022
d. Deadline for Class Counsel to file motion for final
approval - Feb. 17, 2022
e. Final Approval Hearing - March 24, 2022 at 1:00 p.m.
A full-text copy of the Court's Nov. 30, 2021 Order is available at
https://tinyurl.com/4jk5dzee from Leagle.com.
BANK OF AMERICA: Court OKs Exclusion From Class in FX Rates Suit
----------------------------------------------------------------
Judge Lorna G. Schofield of the U.S. District Court for the
Southern District of New York issued an order approving requests
for exclusion from the Certified Litigation Class in the lawsuit
styled IN RE FOREIGN EXCHANGE BENCHMARK RATES ANTITRUST LITIGATION,
Case No. 1:13-cv-07789-LGS (S.D.N.Y.).
The Action includes all actions filed in or transferred to the
Court and consolidated thereunder, and all actions that may be so
transferred and consolidated in the future, including: Taylor v.
Bank of Am. Corp., No. 15 Civ. 1350; Sterk v. Bank of Am. Corp.,
No. 15 Civ. 2705; Bakizada v. Bank of Am. Corp., No. 15 Civ. 4230;
Teel v. Bank of Am. Corp., No. 15 Civ. 4436; and Robert Charles
Class A, L.P. v. Bank of Am. Corp., No. 15 Civ. 4926.
On Sept. 3, 2019, the Court issued an order pursuant to Fed. R.
Civ. P. 23(c)(4)(A) certifying a litigation class (the "Certified
Litigation Class") with respect to two issues: "(1) whether there
is a conspiracy to widen spreads in the spot market, and (2)
whether the Credit Suisse Defendants' participated in the
conspiracy" (the "Threshold Issues"). On Nov. 19, 2020, the Court
entered an order approving the form and manner of notice of the
Certified Litigation Class.
On Dec. 18, 2020, Epiq Class Action & Claims Solutions, Inc., Rust
Consulting, Inc., and certain Settling Defendants (collectively,
the "Notice Agents") began effectuating the notice to Litigation
Class Members, advising Class Members of, among other things, the
Feb. 17, 2021 deadline to exclude themselves from the Litigation
Class. Epiq, Rust, and certain Settling Defendants distributed
notice by email where possible, and by postcard when an email
address was not available. The email and postcard directed
potential class members to the detailed notice on the FX litigation
website maintained by Epiq.
A Litigation Class Member is any person who, between Dec. 1, 2007,
and Dec. 31, 2013, entered into a total of 10 or more FX spot,
forward, and/or swap trades directly with one or more Defendants in
the 52 Affected Currency Pairs via voice or on a single-bank
platform, where the Defendants provided liquidity and such persons
were either domiciled in the United States or its territories, or
if domiciled outside the United States or its territories, traded
in the United States or its territories.
On Jan. 17, 2021, the Court entered an order approving an extension
to the deadline for requests for exclusion to April 27, 2021, for
those Litigation Class Members that UBS sent notice to. The
Detailed Notice stated that a valid and timely Request for
Exclusion must be: (a) in writing; (b) signed by the Person
(defined as the individual or entity holding the claim) or his,
her, or its authorized representative; (c) state the name, address
and phone number of that Person; and (d) include a signed statement
requesting to be excluded from the Litigation Class.
Order
The Court approves the valid and timely requests for exclusion from
the Certified Litigation Class, attached as Exhibits C and C-1,
respectively, to the Declaration of Charles Marr in Support of a
Motion for an Order Approving Requests for Exclusion from the
Certified Litigation Class ("Declaration of Charles Marr").
The Court finds that excusable but untimely requests for exclusion
have shown excusable neglect due to widespread postal delays
resulting from COVID-19 related disruptions and hardships, which
resulted in these Litigation Class Members being unable to meet the
Feb. 17, 2021 (or April 27, 2021) deadline. Therefore, it approves
all untimely but otherwise valid requests for exclusion from the
Certified Litigation Class attached as Exhibit D to the Declaration
of Charles Marr.
The Court finds that the requests for exclusion received by email
have shown excusable neglect due to postal delays and courier
delivery issues, which resulted in these Litigation Class Members
being unable to comply with written requirement of the Detailed
Notice and the Summary Notice. Each of these Litigation Class
Members sent Epiq, the Notice Administrator, an email indicating
their intention to opt out of the Certified Litigation Class, and
these emails met all other requirements of a valid opt out.
Therefore, the Court approves all emailed requests for exclusion
that are otherwise valid from the Certified Litigation Class
attached as Exhibit E to the Declaration of Charles Marr.
The Court rejects all invalid requests for exclusion from the
Certified Litigation Class attached as Exhibit F to the Declaration
of Charles Marr. The Litigation Class Members listed in Exhibit F
will be bound by any determinations of the Court in favor of or
against the Credit Suisse Defendants on the Threshold Issues to be
tried in the Action.
A full-text copy of the Court's Order dated Nov. 29, 2021, is
available at https://tinyurl.com/yckjdbys from Leagle.com.
BEST EXPRESS: Tapia Files Suit in Cal. Super. Ct.
-------------------------------------------------
A class action lawsuit has been filed against Best Express Foods,
Inc. The case is styled as Julissa Tapia, on behalf of herself and
others similarly situated v. Best Express Foods, Inc. a California
corporation, Case No. STK-CV-UOE-2021-0011051 (Cal. Super. Ct., San
Joaquin Cty., Dec. 3, 2021).
The case type is stated as "Unlimited Civil Other Employment."
Best Express Foods, Inc. -- https://www.bestxfoods.com/ -- is a
manufacturer of quality baked goods.[BN]
BLACK DIAMOND: Slade Files ADA Suit in S.D. New York
----------------------------------------------------
A class action lawsuit has been filed against Black Diamond Group,
Inc. The case is styled as Linda Slade, individually and as the
representative of a class of similarly situated persons v. Black
Diamond Group, Inc. doing business as: Oliver Thomas, Case No.
1:21-cv-10434 (S.D.N.Y., Dec. 7, 2021).
The lawsuit is brought over alleged violation of the Americans with
Disabilities Act.
Black Diamond Group, Inc. doing business as Oliver Thomas --
https://theoliverthomas.com/ -- offers a collection of bags,
patches & accessories to work with your fun lifestyle.[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
BLUETTI POWER: Fischler Files ADA Suit in E.D. New York
-------------------------------------------------------
A class action lawsuit has been filed against Bluetti Power Inc.
The case is styled as Brian Fischler, Individually and on behalf of
all other persons similarly situated v. Bluetti Power Inc. doing
business as: Bluetti, Case No. 1:21-cv-06780 (E.D.N.Y., Dec. 7,
2021).
The lawsuit is brought over alleged violation of the Americans with
Disabilities Act.
BLUETTI -- https://www.bluettipower.com/ -- focuses on R&D and
sales of the portable power station and power bank.[BN]
The Plaintiff is represented by:
Christopher Howard Lowe, Esq.
LIPSKY LOWE LLP
420 Lexington Avenue, Suite 1830
New York, NY 10170-1830
Phone: (212) 764-7171
Email: chris@lipskylowe.com
BOISE DISTRICT #1: Wins Bid for Protective Order in Zeyen Suit
--------------------------------------------------------------
Judge B. Lynn Winmill of the U.S. District Court for the District
of Idaho issued a Memorandum Decision and Order in the lawsuit
captioned MIKE ZEYEN, et al., Plaintiffs v. BOISE DISTRICT #1, et
al., Defendants, Case No. 1:18-cv-00207-BLW (D. Idaho):
* denying without prejudice the Plaintiffs' Motion to
Bifurcate; and
* granting the AJH Defendants' Motion to Determine the
Applicable Statute of Limitations and for Protective Order.
The Plaintiffs filed this proposed class action in May 2018,
challenging fees charged by the Defendant school districts. The
Plaintiffs, who are students attending schools in Defendants
Pocatello/Chubbuck School District, Bonneville Joint District #93,
and the West Ada School District, and their parents, seek to
proceed as class representatives of all patrons -- that is, all
students and parents -- in "all school districts and charter
schools" (collectively "school districts") in the state of Idaho.
The Plaintiffs allege that the fees charged by the Defendants
violate Article IX, Section 1 of the Idaho Constitution, which
provides: "The stability of a republican form of government
depending mainly upon the intelligence of the people, it shall be
the duty of the legislature of Idaho, to establish and maintain a
general, uniform and thorough system of public, free common
schools." Idaho Const., Art. IX, Section 1.
Specifically, the Plaintiffs allege that certain types of fees
imposed by the Defendants violate the constitutional requirement
that education be free. The Plaintiffs allege that the fees,
therefore, constitute a taking of property without due process in
violation of the Takings Clause of the Fifth Amendment of the U.S.
Constitution, applicable to the states through the Fourteenth
Amendment. They seek recovery of the fees paid and a declaratory
judgment that prohibits imposition of such fees in the future.
Analysis
A. Motion to Bifurcate
The Plaintiffs seek (1) to have the case bifurcated so that there
would be an initial trial phase limited to claims brought against
the West Ada, Pocatello, and Bonneville School Districts, with
proceedings involving the remaining Defendants held in abeyance
until further order of the Court; and (2) to have the Defendants
for the first phase of the trial provide complete responses to the
Plaintiffs' written discovery requests previously served on the
Defendants. The Plaintiffs contend that bifurcation is appropriate
under Federal Rule of Civil Procedure 42(b) on the grounds that
bifurcation will expedite and economize the resolution of this
matter, and/or avoid prejudice.
The Defendants represented by counsel from the law firm Anderson
Julian & Hull (the AJH Defendants), some of which would be involved
in the proposed initial trial phase, do not oppose the proposed
bifurcation. However, the remaining Defendants, represented by the
law firm Hawley Troxell Ennis & Hawley (the HTEH Defendants), do
oppose the motion. The HTEH Defendants contend that the motion
should be denied on several grounds, including that the motion to
bifurcate is premature because the Court has not yet determined
whether to certify a Plaintiff class and has not yet determined
named class representatives for the proposed class. The Court
agrees.
Judge Winmill notes that this case was filed more than three and a
half years ago as a proposed class action, yet the Plaintiffs have
failed to date to obtain class certification. Until the class
certification issue is decided, bifurcation is inappropriate, Judge
Winmill holds.
In denying the Plaintiffs' previous motion for class certification,
the Court set out the deficiencies in the Plaintiffs' motion and
suggested ways in which those deficiencies could be resolved. The
Plaintiffs recently filed, on Nov. 16, 2021, a third motion for
class certification. As the Court indicated during the hearing held
on Nov. 18, 2021, the Defendants will have 60 days within which to
conduct discovery and/or obtain stipulations relevant to the issue
of class certification and file their response to the Plaintiffs'
motion. The Plaintiffs will then have 21 days within which to file
their reply in support of class certification.
B. Motion for Determination of Statute of Limitations and for
Protective Order
The AJH Defendants seek an order from the Court determining the
statute of limitations applicable to the Plaintiffs' claims and a
protective order finding that the AJH Defendants are not required
to provide discovery regarding fees assessed outside of the
statutory period. Specifically, the AJH Defendants argue that a
two-year limitations period applies to the Plaintiffs' claims; that
accordingly all claims that accrued prior to May 9, 2016, are
time-barred; and that requests seeking discovery on fees assessed
prior to May 9, 2016, are seeking discovery that is not relevant
and not reasonably calculated to lead to the discovery of
admissible evidence. Thus, the AJH Defendants request a protective
order precluding requests seeking discovery on fees assessed prior
to May 9, 2016.
The Plaintiffs oppose the motion, arguing (1) that the issue of the
applicable statute of limitations is not properly before the Court;
(2) that the Plaintiffs' Fifth Amendment claim is not subject to
the 2-year statute of limitations applicable to personal injury
actions; and (3) that the statute of limitations for Plaintiffs'
Section 1983 claims is tolled by the "systematic violation"
doctrine, which the Court will refer to as the continuing violation
doctrine.
Judge Winmill finds that the applicable statute of limitations is
properly before the Court. As the AJH Defendants point out, the
applicable statute of limitations is relevant for determining the
appropriate scope of discovery. The Court finds, that the parties
have had a full opportunity to address the applicable statute of
limitations, and that it is necessary to resolve the issue of the
applicable statute of limitations, in order to appropriately focus
and limit discovery in this case. Judge Winmill holds that the
resolution of the issue at this stage will facilitate the just,
speedy, and inexpensive resolution of this dispute.
The Court also finds that the Plaintiffs' Fifth Amendment takings
claim is subject to the Section 1983 statute of limitations. As the
Court previously held, "the statute of limitations for actions
brought under 42 U.S.C. Section 1983 are governed by the forum
state's statute of limitations for personal injury actions. Thus,
the Court must apply Idaho's two-year limitation period for
personal injury actions instead of the limitations period urged by
the plaintiffs set forth in Idaho's inverse condemnation statute,"
citing Wilson v. Garcia, 471 U.S. 261, 276 (1985); Idaho Code
Section 5-219(4).
Finally, the Plaintiffs argue that the limitations period has been
tolled under the continuing violation doctrine. The continuing
violation doctrine arose in the employment context.
Judge Winmill notes that at issue here are the allegedly unlawful
acts by the Defendants of assessing school fees. The assessment of
fees by the Defendants is easily identifiable, discrete acts that
are actionable as soon as each assessment occurs. Thus, the
continuing violation theory does not apply to toll the limitations
period, Judge Winmill points out.
Order
The Court rules that the Plaintiffs' Motion to Bifurcate is denied
without prejudice to revisiting the issue upon their motion
following a decision regarding class certification.
The AJH Defendants' Motion to Determine the Applicable Statute of
Limitations and for Protective Order is granted. The Court finds
the applicable statute of limitations to be two years, and that the
Plaintiffs are not entitled to obtain, and the Defendants are not
required to provide, discovery regarding fees assessed prior to May
9, 2016, which is two years prior to the date on which this action
was filed.
As the Court indicated during the Nov. 18, 2021, hearing:
a. The Defendants are granted 60 days, or until Jan. 18, 2022,
within which to conduct discovery and/or obtain
stipulations relevant to the issue of class certification
and file their response to the Motion for Class
Certification; and
b. The Plaintiffs will file their reply in support of class
certification, if any, within 21 days of the filing of
the Defendants' response.
All other deadlines in the Court's Scheduling Order are stayed. All
discovery that is not related to class certification is stayed.
A full-text copy of the Court's Memorandum Decision and Order dated
Nov. 29, 2021, is available at https://tinyurl.com/4fkydjsv from
Leagle.com.
BRIGHAM YOUNG: Judgment Bid in Evans Suit Denied W/o Prejudice
--------------------------------------------------------------
In the case, ROSCOE EVANS, an individual on behalf of himself and
all others similarly situated, Plaintiff v. BRIGHAM YOUNG
UNIVERSITY, a Utah corporation, Defendant, Case No. 1:20-CV-100-TS
(D. Utah), Judge Ted Stewart of the U.S. District Court for the
District of Utah:
(i) granted Plaintiff Evans' Renewed Motion to Stay Briefing
on Defendant's Summary Judgment Motion; and
(ii) denied the Defendant's Motion for Summary Judgment
without prejudice.
Background
On Feb. 19, 2021, the Plaintiff filed an amended class action
complaint against Brigham Young University ("BYU") asserting claims
for breach of contract and unjust enrichment. He alleges that BYU
failed to refund students for their Winter 2020 tuition and/or fees
after it moved from in-person to online instruction during the
COVID-19 pandemic.
As the case proceeded, the Court ordered, at the parties' request,
a bifurcated, two-phase discovery plan: The first phase would
include pre-class certification discovery and the second phase
would include all remaining merits-based discovery upon the Court
rendering a decision on the Plaintiff's Motion for Class
Certification.
The parties proceeded with pre-class certification discovery. On
July 30, 2021, BYU filed a Motion for Summary Judgment on all
claims due to the Plaintiff's inability to establish damages and
unjust enrichment. The Plaintiff filed his Motion for Class
Certification on Aug. 2, 2021.
On Aug. 17, 2021, the Plaintiff filed a Motion to Stay briefing on
BYU's Motion for Summary Judgment, which the Court denied without
prejudice on Aug. 24, 2021. The parties continued with briefing on
class certification and summary judgment.
On Sept. 29, 2021, the Plaintiff filed a renewed Motion to Stay
Briefing on BYU's Motion for Summary Judgment claiming he needs
additional time to complete merits-based and damages discovery in
order to adequately respond.
Discussion
The Plaintiff supports the Motion with an affidavit of his
attorney, Michael J. Watton. The affidavit itemizes the following
areas of discovery as both unavailable and necessary for the
Plaintiff to respond to BYU's Motion for Summary Judgment: (1)
Compliance of subpoenas as to BYU Pathways or its controlling
entity/individual; (2) Compliance of subpoenas as to the Church
Education System (CES) or its controlling entity/individual; (3)
Compliance of subpoena as to The Church of Jesus Christ of
Latter-day Saints; (4) Compliance with Plaintiff's recent demand
for document production; (5) Compliance with Plaintiff's previous
demand for document production; (6) Depositions of Jay Hanson,
Carri Jenkins, Shane Reese, Julie Franklin, and Kevin Worthen; (7)
Additional discovery on market alternatives outside of BYU and CES
systems; (8) Completion of Rule 30(b)(6) deposition; (9) Completion
of deposition of BYU's Director of Admission Lori Gardiner; (10)
Disclosures of financial records from BYU, including those
regarding amounts of tuition and fees paid by, subsidized on behalf
of, or assessed to putative Class Members; and (11) Expert
Disclosures, Reports, and Depositions.
To survive BYU's Motion for Summary Judgment, either partially or
wholly, the Plaintiff must establish that he was damaged by BYU's
transition from in-person to online instruction during the Winter
2020 semester. The Plaintiff asserts that each of these areas of
discovery is necessary to calculate damages and determine liability
for BYU students who paid full tuition and/or fees during the
Winter 2020 semester.
BYU argues that the Plaintiff's "laundry list" of additional
discovery does not refute the following undisputed material facts
in its Motion for Summary Judgment: (1) BYU charges the same for
online and in-person courses and therefore the Plaintiff was not
damaged by BYU's move to remote instruction in Winter 2020; (2) BYU
does not charge and the Plaintiff did not pay mandatory fees and
therefore the Plaintiff is not entitled to any refunds for fees;
and (3) BYU provided students instruction, grades, credit, and
other services during the Winter 2020 semester and therefore was
not unjustly enriched.
Judge Stewart finds that the Plaintiff has identified probable
facts not currently available, explained how those facts could help
him rebut BYU's Motion for Summary Judgment, explained the steps he
has taken to discover those facts, and demonstrated why additional
time is needed.
Lastly, Judge Stewart finds that the Plaintiff was not dilatory in
his discovery efforts. He explains that if the party filing the
Rule 56(d) affidavit has been dilatory, or the information sought
is either irrelevant to the summary judgment or merely cumulative,
no extension will be granted."
BYU argues that the Plaintiff's failure to timely conduct
depositions of material witnesses cannot be a basis to avoid
summary judgment. It states it provided dates for the Plaintiff to
depose several material witnesses before his deadline to respond to
BYU's motion for summary judgment, but the Plaintiff either
declined to take depositions, was unavailable to take depositions,
or canceled the depositions. The Plaintiff's counsel avers that he
requested the depositions at the end of August 2021, when the Court
denied his initial motion to stay briefing on BYU's Motion for
Summary Judgment. BYU provided limited availability for depositions
with dates near the end of September 2021. The Plaintiff argues
that the dates provided by BYU were unfairly close to his Oct. 1,
2021 deadline to respond to BYU's Motion for Summary Judgment.
In sum, Judge Stewart holds that the Plaintiff appears to have
taken reasonable steps to depose material witnesses and the failure
to do so does not appear to be due solely to his conduct.
Conclusion
Judge Stewart granted the Plaintiff's Renewed Motion to Stay
Briefing and denied BYU's Motion for Summary Judgment without
prejudice to its re-filing after the close of merits-based
discovery.
A full-text copy of the Court's Nov. 30, 2021 Memorandum Decision &
Order is available at https://tinyurl.com/f74ax873 from
Leagle.com.
BRISTOL MYERS: Faces Suit Over COVID Vaccination Mandate
--------------------------------------------------------
DR. CARRIE KEFALAS, JOHN LOTT, JEREMY BEER, KAMILA DUBISZ, for
themselves and on behalf of all others similarly situated,
Plaintiffs v. BRISTOL MYERS SQUIBB CO., Defendant, Case No.
1:21-cv-10204 (S.D.N.Y., December 1, 2021) is a class action
seeking redress for Defendants manipulation of its employees'
articulation of their religious beliefs, and seeking emergency
injunctive relief under Title VII of the Civil Rights Act of 1964.
On September 7, 2021, BMS' CEO and Chairman, Dr. Giovanni Caforio,
revised BMS' global letter regarding the ongoing COVID-19 pandemic
to announce that BMS would require all of its United States
employees to be fully vaccinated against COVID-19 by November 1,
2021. Shortly thereafter, BMS began to roll out its new requirement
and institute processes to encourage employee vaccination. BMS's
rollout included the threat of "for cause" termination if employees
did not receive COVID-19 vaccinations. BMS made provisions at this
time to entertain individual employees' requests for accommodations
from its vaccination policy.
According to the complaint, BMS required employees, including
Plaintiffs, seeking a religious accommodation to initiate the
process by completing a standard religious accommodation request
form. The initiating form required employees to answer standard
questions such as identifying what policy that they were seeking an
exemption from, what their religious beliefs were, how they
conflicted with the policy, the duration of the requested
accommodation, and what accommodation that they desired.
Allegedly, once employees had completed these written responses,
BMS issued them decision letters either granting their requests or
denying them and giving employees until a certain date to get
vaccinated or face termination.
The Plaintiffs seek a preliminary injunction enjoining Bristol
Myers from terminating them and all other similarly situated
employees until the parties can be fully heard on the merits, and a
declaratory judgment finding that Bristol Myers has violated Title
VII.
Bristol Myers Squibb Co. is an American multinational
pharmaceutical company, headquartered in New York City.[BN]
The Plaintiffs are represented by:
Norman A. Pattis, Esq.
PATTIS & SMITH, LLC
383 Orange Street
New Haven, CT 06511
Telephone: (203) 393-3017
Facsimile: (203) 393-9745
E-mail: npattis@pattisandsmith.com
- and -
Cameron L. Atkinson, Esq.
PATTIS & SMITH, LLC
383 Orange Street
New Haven, CT 06511
Telephone: (203) 393-3017
Facsimile: (203) 393-9745
E-mail: catkinson@pattisandsmith.com
BRISTOL-MYERS SQUIBB: Faces Class Action Over Title VII Violations
------------------------------------------------------------------
Reuters reports that Bristol Myers Squibb Co was sued on Dec. 1 by
four employees who said the drugmaker refused to grant them
religious exemptions from its COVID-19 vaccination requirement, and
threatened to fire them on Dec. 6 for remaining unvaccinated.
The plaintiffs in the proposed class action filed in Manhattan
federal court accused Bristol Myers of violating a federal civil
rights law known as Title VII by "systematically manufacturing"
reasons to refuse religious accommodations.
The plaintiffs allege that Bristol Myers is concluding their
politics is the real reason they won't be vaccinated, regardless of
whether they have sincere religious beliefs that independently
would justify exemptions.
They also said the company is ignoring sincere religious beliefs
that are "inconvenient" to denial decisions, even as it
accommodates employees with medical reasons not to be vaccinated.
Bristol Myers said its priority during the pandemic has been the
health and safety of communities, employees and patients.
"Our policy that all eligible employees in (the) U.S. and Puerto
Rico be vaccinated against COVID-19 is consistent with this safety
priority," the New York-based company said in a statement.
The Dec. 1 lawsuit came as the Biden administration seeks to
require vaccinations for millions of workers at large private U.S.
employers, a mandate is also being challenged in court.
Many health officials consider widespread vaccinations the best way
to help control the pandemic.
The Bristol Myers plaintiffs, all with six-figure salaries, are
Carrie Kefalas, a physician overseeing clinical trial risk
management for drug development; biotechnologist John Lott; data
integrity manager Jeremy Beer, and biologist Kamila Dubisz.
They objected to the company requiring they fill out
"inquisitorial" questionnaires about their reasons for religious
exemptions.
The complaint said Bristol Myers rejected Kefalas' request because
it thought her beliefs were insincere and she might not accept
mask-wearing or regular COVID-19 testing. The company offered no
reasons for the other rejections, the complaint said.
Bristol Myers referred in Kefalas' rejection letter to several
statements it said she made publicly, including that its vaccine
requirement was a "communist, unamerican practice [sic]."
The lawsuit seeks a permanent injunction against Bristol Myers'
firing the plaintiffs or similarly situated employees.
Bristol Myers ended 2020 with about 17,000 U.S. employees.
The case is Kefalas et al v Bristol-Myers Squibb Co, U.S. District
Court, Southern District of New York, No. 21-10204. [GN]
CAMBER ENERGY: Gross Law Firm Reminds of December 28 Deadline
-------------------------------------------------------------
The securities litigation law firm of The Gross Law Firm issues the
following notice on behalf of shareholders of Camber Energy, Inc.
(NYSE American: CEI).
Shareholders who purchased shares of CEI during the class period
listed are encouraged to contact the firm regarding possible Lead
Plaintiff appointment. Appointment as Lead Plaintiff is not
required to partake in any recovery.
CONTACT US HERE:
https://securitiesclasslaw.com/securities/camber-energy-inc-loss-submission-form/?id=21824&from=5
CLASS PERIOD: February 18, 2021 to October 4, 2021
ALLEGATIONS: The complaint alleges that during the class period,
Defendants issued materially false and/or misleading statements
and/or failed to disclose that: (i) Camber overstated the financial
and business prospects of Viking as well as the combined company
post merger; (ii) Camber failed to apprise investors of, and/or
downplayed, the fact that its acquisition of a controlling interest
in Viking would exacerbate the Company's delinquent financial
statements and listing obligations with the NYSE; (iii) an
institutional investor was diluting Camber's shares at a
significant rate following the Company's July 12, 2021 update
regarding the number of its shares of common stock issued and
outstanding; and (iv) as a result, the Company's public statements
were materially false and misleading at all relevant times.
DEADLINE: December 28, 2021 Shareholders should not delay in
registering for this class action. Register your information here:
https://securitiesclasslaw.com/securities/camber-energy-inc-loss-submission-form/?id=21824&from=5
NEXT STEPS FOR SHAREHOLDERS: Once you register as a shareholder who
purchased shares of CEI during the timeframe listed above, you will
be enrolled in a portfolio monitoring software to provide you with
status updates throughout the lifecycle of the case. The deadline
to seek to be a lead plaintiff is December 28, 2021. There is no
cost or obligation to you to participate in this case.
WHY GROSS LAW FIRM? The Gross Law Firm is nationally recognized
class action law firm, and our mission is to protect the rights of
all investors who have suffered as a result of deceit, fraud, and
illegal business practices. The Gross Law Firm is committed to
ensuring that companies adhere to responsible business practices
and engage in good corporate citizenship. The firm seeks recovery
on behalf of investors who incurred losses when false and/or
misleading statements or the omission of material information by a
company lead to artificial inflation of the company's stock.
Attorney advertising. Prior results do not guarantee similar
outcomes.
The Gross Law Firm is committed to ensuring that companies adhere
to responsible business practices and engage in good corporate
citizenship. The firm seeks recovery on behalf of investors who
incurred losses when false and/or misleading statements or the
omission of material information by a Company lead to artificial
inflation of the Company's stock. Attorney advertising. Prior
results do not guarantee similar outcomes.
CONTACT:
The Gross Law Firm
15 West 38th Street, 12th floor
New York, NY, 10018
Email: dg@securitiesclasslaw.com
Phone: (212) 537-9430
Fax: (833) 862-7770 [GN]
CANADA: Ottawa Seeks Dismissal of RCMP $1.1BB Class Action
----------------------------------------------------------
Cristin Schmitz, writing for The Lawyer's Daily, reports that the
federal government is asking the Supreme Court of Canada to kybosh
a $1.1-billion workplace bullying class action against the RCMP
that could inspire -- if it succeeds -- negligence claims for
workplace harassment by non-unionized workers in private industry
across Canada.
On Nov. 22 -- the last day Ottawa could seek leave to appeal -- the
government asked the top court to hear the Attorney General of
Canada's appeal of the approval by the federal courts' below of the
certification of the novel class action which seeks damages,
including punitive damages, for the RCMP's allegedly negligent and
systemic failure since 1995 to provide a workplace free from
(non-sexual) "bullying, intimidation and harassment," and for
alleged reprisals against those who complained: Greenwood v. Canada
2020 FC 119.
The plaintiffs estimate that there are now 50,000 people in the
class, which was pared down from at least 200,000 by the Federal
Court of Appeal: R. v. Greenwood 2021 FCA 18.
The federal Crown argues that the test case is of public
importance, thus warranting the top court's attention on several
grounds, including to address a legal issue which has divided
appellate courts, i.e. whether there exists, or legally should
exist, a tort in negligence for workplace harassment.
"The implications will extend well beyond the particular context of
workplace harassment claims involving the RCMP," the attorney
general states in his memorandum of argument filed at the Supreme
Court of Canada.
Won Kim of Toronto's Kim Spencer McPhee, who with Megan McPhee
represents the plaintiffs, described the case as "cutting edge" and
potentially "landmark."
"It really addresses basics of the workplace, and whether we can
use class action legislation and case law to advance redress for
systemic harassment in the workplace," he told The Lawyer's Daily.
McPhee said the case marks the first time a class action asserting
workplace harassment and bullying has gone forward on a contested
basis. "This model may be useful going forward for other
non-unionized work settings," she suggested.
McPhee noted that RCMP members are uniquely situated in several
respects. "Until very recently, they were prohibited from forming a
union," she explained. "They are also statutory office holders and
not employees, and are therefore not covered by written, or
unwritten, [employment] contracts."
As a result, the Federal Court of Appeal noted in last September's
decision upholding the certification of the class action that RCMP
members cannot avail themselves of contractual remedies.
"The vulnerability of their situation is further compounded by the
paramilitary nature of the organization, where chain of command is
paramount, and those who speak out are often punished," McPhee
observed.
McPhee said she sees a contradiction in the fact that "the Crown is
seeking leave to appeal, in part, on the basis that it has adequate
systems in place to deal with harassment" yet a Nov. 22 statement
issued by RCMP commissioner Brenda Lucki "promotes the change
initiatives the force is making -- confirming change is
necessary."
The RCMP commissioner's prepared statement Nov. 22 said the
government wants to "obtain clarity on whether the courts should
certify a class action relating to workplace disputes when there
are already administrative resolution processes in place."
Lucki cited "a range of comprehensive administrative mechanisms"
implemented by the government to deter, detect, investigate,
correct and provide compensation to RCMP employees for workplace
disputes, including harassment complaints. "Compensation for any
workplace injury is administered and evaluated independently of the
RCMP under the Pension Act for regular and civilian members and the
Government Employees Compensation Act for public service
employees," Lucki said.
The RCMP's commissioner stated that the RCMP "has made an ongoing
effort to address harassment in our organization. In response to
several RCMP and government commissioned reports and
recommendations, we have implemented numerous policy and program
change initiatives to create a more respectful, inclusive and
diverse workplace. . . . One of our most recent initiatives is the
creation of a centralized, independent unit responsible for matters
relating to the resolution and prevention of harassment and
violence occurrences within the RCMP; the Independent Centre for
Harassment Resolution was launched on June 30, 2021, that includes
a new support services unit to enhance the support provided to
employees, victims and survivors of workplace harassment and
violence."
But McPhee said that despite the government stating, repeatedly
over the years that "there is no room for harassment, bullying and
intimidation" in the RCMP, "it then places the onus on employees to
come forward and speak out in an environment where, government
report after government report has recognized, there is a pervasive
fear of retaliation and an ineffectual complaint resolution
system."
She said "this has been borne out by our clients' experiences.
Harassment complaints, generally made against management, are also
investigated and overseen by management without recourse to
independent adjudication. The RCMP cannot truly say it is committed
to a safe and respectful work environment while it continues to
fight these cases instead of compensating its injured members and
fixing its internal system and culture."
Kim and McPhee were part of the successful team of class counsel
which settled in 2016 the Merlo-Davidson class action against
Ottawa for the widespread sexual harassment, and gender- and
sexual-orientation-based systemic discrimination, bullying and
harassment of female RCMP employees since 1974.
A year ago former Supreme Court of Canada Justice Michel
Bastarache, the independent assessor who with two other former
judges assessed more than 3,000 claims under the Merlo-Davidson
Settlement Agreement, issued his final report on the settlement's
implementation, titled, Broken Dreams Broken Lives: The Devastating
Effects of Sexual Harassment on Women in the RCMP.
His 2020 report deplores the RCMP's approach to harassment and
abuse within its ranks, concluding that the organization "has a
toxic culture which has proved intractable to change. . . . Despite
some improvement, neither legislative changes nor administrative
reforms have succeeded in eliminating the toxic aspects of a
culture deeply embedded in the RCMP."
The certification of the Greenwood class action in Federal Court,
as approved and modified by the Federal Court of Appeal, covers
claims by RCMP members and reservists for allegedly systemic
"non-sexual" bullying, intimidation and harassment in RCMP
workplaces, and reprisals, between Jan. 1, 1995, and the dates
collective agreements come (or came into) force for them.
(Systemic negligence claims for sexual harassment were encompassed
by the settled class proceedings in Merlo v. Canada 2017 FC 533,
Tiller v. Canada 2019 FC 895, and Ross v. The Queen T-370-17, in
which the Federal Court certified class proceedings against the
RCMP for workplace sexual harassment, and harassment based on
sexual orientation, following the consent of the Crown to the
certification orders for the purposes of settlement.)
In Greenwood, the federal Crown argued that the systemic negligence
claim had no reasonable prospect of success and that the Federal
Court erred in finding there exists a reasonable cause of action in
negligence related to workplace harassment, and in presuming that
different requirements apply to a claim framed as systemic
negligence, and in finding that the alleged class-wide duty of care
is sustainable at law.
The Crown pointed to Piresferreira v. Ayotte 2010 ONCA 384,
Colistro v. Tbaytel 2019 ONCA 197 and Merrifield v. Canada
(Attorney General) 2019 ONCA 205 (Merrifield #2). The Ontario Court
of Appeal held that Canadian law does not recognize the tort of
harassment; no recovery lies in tort for the negligent infliction
of mental suffering in the employment context; and there is no tort
of harassment.
For the three-judge panel at the Federal Court of Appeal in
Greenwood, Justice Mary Gleason agreed with the Crown that a claim
in negligence for workplace harassment -- whether brought on an
individual or systemic basis -- is liable to being struck when it
is brought by, or on behalf of, those governed by written or
unwritten contracts of employment since remedies available to
employees in contract law militate against the recognition of the
existence of a duty of care to take reasonable steps to prevent
workplace harassment.
However, the holding in Piresferreira does not apply to RCMP
members as they are statutory office holders, not employees, and
they have no contractual remedies available in employment law,
Justice Gleason said. Thus the policy reasons which led the Ontario
Court of Appeal to decline to extend a duty of care in negligence
to prevent workplace harassment in Piresferreira "do not pertain to
RCMP members," Justice Gleason said.
Moreover, she added, Merrifield #2 "left the door open to the
recognition of a new tort of workplace harassment in an appropriate
case (para. 53)."
As well, while the class actions certified in Merlo, Tiller et al.
were decided in the context of the federal Crown's consent to the
issuance of certification for the purposes of settlement, "the
Federal Court needed to be satisfied that it was not plain and
obvious that the claims disclosed no cause of action before it
could approve the settlements," Justice Gleason pointed out.
"Presumably, a similar view would have been required for the Crown
to have agreed to the settlements on a principled basis," said
Justice Gleason, who practised labour and employment law before
joining the federal bench.
The Federal Court of Appeal panel concluded that it could not be
said that it was "plain and obvious" that there is no cause of
action in negligence for workplace harassment experienced by an
RCMP member.
In a multipronged leave to appeal application to the Supreme Court
of Canada, the federal Crown argues the public importance of the
questions whether the law should recognize a tort in negligence for
workplace harassment and, if it should, whether this should be
limited to non-unionized federal public-sector workers. "In
addition to noting a conflict in the appellate jurisprudence, the
Federal Court of Appeal based its conclusion that non-unionized
class members had a reasonable cause of action in negligence mainly
in the absence of a contract of employment," the Crown argues its
written argument filed with the top court. "In doing so, the court
failed to consider whether the availability of statutory recourse
regimes made to the redefined class would negate a prima facie duty
of care at the second stage of the Anns test. . . . The questions
of whether these, and other, policy reasons might dispatch the need
for the law to recognize a new tort, and whether the negligence
claim in this case engaged the core policy-making functions of the
legislation and executive branches, are ripe for determination."
The Crown also urges the importance of the case on the basis that
the courts below effectively displaced Vaughan v. Canada, 2005 SCC
11 -- which the Crown said established that where Parliament has
provided for a specialized administrative regime for the resolution
of workplace disputes, the role of the courts is limited to
exercising exceptional jurisdiction in individual cases.
"By creating a blanket and class-wide exception to this deferential
posture, the court below effectively displaces Vaughan, vastly
expanding the reach of the courts into the everyday workplace
disputes of non-unionized employers," asserts the Crown. "The
implications will extend well beyond the particular context of
workplace harassment claims involving the RCMP; making courts
available for the adjudication of all manner of workplace disputes
on a negligence standard. As this impact engages the interests of
employers and employees well beyond the RCMP, leave should be
granted."
With respect to the RCMP's acknowledged culture of sexual
harassment, and harassment on the basis of sexual orientation,
Bastarache's 178-page final report last year called for an "in
depth, external and independent review of the organization and
future of the RCMP as a federal policing organization."
"For the last 30 years issues of workplace and sexual harassment
and discrimination have been brought to the attention of the
Government of Canada and the RCMP through internal reports,
external reports and litigation before the courts," Bastarache
wrote. "The measures taken in response have not, in my view,
succeeded in addressing the underlying issues arising from the
RCMP's toxic culture. Indeed, based on my review of former reports
and litigation and conversations with 644 women, I am not convinced
that positive cultural change can occur without external
pressure."
Bastarache also said it was "impossible to fully convey the depth
of the pain" that he and his fellow assessors witnessed in the 644
interviews that were conducted, and 3,086 claims that were
assessed. "What the women told the Assessors shocked them to their
core," he said. "This process has forever tarnished the image of
the RCMP as a Canadian icon," he wrote. "Bright, well-educated
women said that they joined the RCMP seeking to help others,
sometimes because they themselves had needed help as a young
person. They told the Assessors of the brutal treatment they
experienced which ground them down, broke their confidence, and
shattered their trust in their fellow officers. The full tragedy
and suffering of what the RCMP's failure to provide a safe
workplace has done to these women is overwhelming."
Bastarache concluded in his final report, "based on everything I
was told over the past three years, that the culture of the RCMP is
toxic and tolerates misogyny and homophobia at all ranks and in all
provinces and territories. . . . This culture does not reflect the
stated values of the RCMP, and it is found throughout the
organization. RCMP members and officers are forced to accept that
they must function in the context of this culture to succeed. RCMP
employees appear to blame the 'bad apples' without recognizing the
systemic and internal origins of this conduct."
The final Bastarache report indicates 2,304 women were compensated,
and 782 claims were denied. In all, $125,266,500 was paid to
claimants.
If you have any information, story ideas or news tips for The
Lawyer's Daily, please contact Cristin Schmitz at
Cristin.schmitz@lexisnexis.ca or call 613 820-2794. [GN]
CAPE MOUNT: Gray Files FLSA Suit in E.D. New York
-------------------------------------------------
A class action lawsuit has been filed against Cape Mount Heavy
Construction & Associates, Inc., et al. The case is styled as
Brandel Gray, individually and on behalf of all other persons
similarly situated v. Cape Mount Heavy Construction & Associates,
Inc., DiFazio Industries, LLC, John Doe Bonding Companies 1-20,
Case No. 1:21-cv-06781 (E.D.N.Y., Dec. 7, 2021).
The lawsuit is brought over alleged violation of the Fair Labor
Standards Act.
Cape Mount Heavy Construction & Associates, based in Staten Island,
is a general contractor that provides trenching, foundation
testing, accessibility construction and more.[BN]
The Plaintiff is represented by:
Christopher Howard Lowe, Esq.
LIPSKY LOWE LLP
420 Lexington Avenue, Suite 1830
New York, NY 10170-1830
Phone: (212) 764-7171
Email: chris@lipskylowe.com
CHARTER COMMUNICATIONS: Appeal Certification in Harper Suit Denied
------------------------------------------------------------------
In the case, LIONEL HARPER, DANIEL SINCLAIR, HASSAN TURNER, LUIS
VAZQUEZ, and PEDRO ABASCAL, individually and on behalf of all
others similarly situated and all aggrieved employees, Plaintiffs
v. CHARTER COMMUNICATIONS, LLC, Defendant, Case No. 2:19-cv-00902
WBS DMC (E.D. Cal.), Judge William B. Shubb of the U.S. District
Court for the Eastern District of California issued an order:
a. amending in part the Court's Oct. 13, 2021, granting part
and denying in part Charter's motion to dismiss the
Plaintiff's Second Amended Complaint in part; and
b. denying Charter's request for certification for
interlocutory appeal.
Background
Plaintiffs Harper, Sinclair, Turner, Vazquez, and Abascal brought
the putative class action against their former employer, Charter
Communications, alleging various violations of the California Labor
Code. On Oct. 13, 2021, the court granted in part and denied in
part Charter's motion to dismiss the Plaintiff's Second Amended
Complaint in part.
Pursuant to Federal Rule of Civil Procedure 60(b), Charter now
moves for reconsideration of that order. It also moves,
alternatively, for certification of the order for interlocutory
appeal pursuant to 28 U.S.C. Section 1292(b) and a stay of the
action pending appeal.
Discussion
I. Motion for Reconsideration
Judge Shubb holds that in the instant motion, Charter has not
pointed to new or different facts or circumstances that did not
exist when the court issued its October 13 order addressing
Charter's motion to dismiss. Rather, Charter argues that the Court
clearly erred as a matter of law in finding Plaintiff Harper's
pre-suit notice sufficient to support the PAGA claims asserted in
the Second Amended Complaint. It mainly reiterates arguments made
in its motion to dismiss and contends that the court erred in
disagreeing with those arguments; however, the Court's order was
not intended to be a tentative ruling subject to further argument
after it was issued. Because the Court has already considered and
addressed these arguments in its order, Judge Shubb declines to
repeat the process.
Charter has also filed a separate brief notifying the Court that,
after it filed its motion for reconsideration, the California Court
of Appeal certified its decision in Uribe v. Crown Building
Maintenance Co. for publication. Charter argues that Uribe
establishes a firm requirement that each discrete factual basis for
violation of a Labor Code provision alleged in a PAGA complaint
must also be referenced in the underlying notice. Accordingly, it
argues, the Court's order -- to the extent that it allows Harper's
complaint to allege violations of particular Labor Code sections
under PAGA by relying on factual bases not described in the notice
-- runs contrary to Uribe.
Judge Shubb finds that it is not clear that that the California
Supreme Court would, if the opportunity arose, adopt the
requirements Charter contends Uribe imposes. Accordingly, having
considered Charter's request, he concludes that Charter has not put
forward a sufficient "reason that justifies the relief" sought, and
therefore declines to alter the Court's Oct. 13, 2021 order
addressing Charter's motion to dismiss, except on the limited basis
described. As such, except on that basis, Judge Shubb will deny
Charter's motion for reconsideration.
II. Motion for Interlocutory Appeal
Charter alternatively seeks certification of the issues it raises
for interlocutory appeal. The Ninth Circuit has held that Section
1292(b) "is to be used only in extraordinary cases where decision
of an interlocutory appeal might avoid protracted and expensive
litigation." It is "not intended merely to provide review of
difficult rulings in hard cases." The party seeking to appeal
therefore has the burden of justifying a departure from the basic
policy of postponing appellate review until after the entry of a
final judgment.
Judge Shubb finds that Charter has not met this burden, as it has
not demonstrated that these circumstances are "extraordinary." As
counsel for Charter acknowledged at oral argument, none of its
arguments, if successful on appeal would resolve Harper's entire
PAGA claim and thereby materially advance the outcome of the
litigation. All other arguments would at best result in partial
resolution of the PAGA claim. Further, given the weight of
precedent cited in the Court's Oct. 13 order, Judge Shubb does not
deem the issues presented to provide "substantial ground" for
difference of opinion. Accordingly, he will not certify the issues
raised by Charter for interlocutory appeal.
Conclusion
Judge Shubb concludes that although the parties disagree as to
whether reconsideration is appropriate, they agree that the court's
prior order incorrectly identified July 11, 2017 as the date set by
the applicable statute of limitations, pursuant to which Harper may
not challenge wage statement violations alleged to have occurred
before that date.
Accordingly, pursuant to the agreement of the parties, Judge Shubb
amended the Court's prior order to clarify that the statute of
limitations precludes Harper from challenging wage statement
violations alleged to have occurred prior to Sept. 14, 2017, rather
than prior to July 11, 2017.
For the foregoing reasons, Judge Shubb denied in all other respects
Defendant Charter's motion for reconsideration.
Charter's alternative request for certification for interlocutory
appeal is denied.
A full-text copy of the Court's Nov. 30, 2021 Order is available at
https://tinyurl.com/ycxwmucx from Leagle.com.
CIGNA HEALTH: Expands Liposuction Coverage Under Settlement
-----------------------------------------------------------
Jacklyn Wille, writing for Bloomberg Law, reports that Cigna Health
& Life Insurance Co. expanded its coverage of specialized
liposuction and will reprocess coverage requests from patients with
lipedema whose claims were previously denied, according to a class
settlement filed in the Northern District of California.
The settlement, which is expected to benefit up to 239 people, was
reached after Cigna opted to change its policy on liposuction
coverage in the wake of Banafsheh Akhlaghi's lawsuit raising claims
under the Employee Retirement Income Security Act. Cigna's
"post-litigation reversal," in which it now finds that liposuction
is a medically necessary treatment for lipedema if certain criteria
are met. [GN]
CINCINNATI CAPITAL: Lee's Bid for Sanctions and Contempt Denied
---------------------------------------------------------------
The U.S. District Court for the Eastern District of Michigan,
Southern Division, denied the Plaintiffs' Motion for Sanctions and
Contempt in the lawsuit styled Owen V. Lee, et al.,
Plaintiffs/Counter-Defendants v. Cincinnati Capital Corporation,
Defendant/Counter-Plaintiff, Case No. 19-12133 (E.D. Mich.).
The matter is currently before the Court on a Motion for Sanctions
and Contempt filed by Plaintiffs Owen and Heather Lee. This motion
asserts that this Court should exercise its inherent authority and
hold Cincinnati Capital Corporation and Joseph Engelhart (its CEO)
in contempt and punish them for willfully disobeying the Court's
order to appear for a continued settlement conference on Oct. 4,
2021. The parties have briefed the issues and the Court also heard
oral argument. As explained, the Court concludes that neither
Cincinnati Capital nor Mr. Engelhart willfully disobeyed the
Court's orders and that no sanctions are warranted. The motion is
denied.
Background
Plaintiffs Owen V. Lee and Heather Lee ("the Lees") filed this
lawsuit against Defendants Joseph Engelhart and Cincinnati Capital
Corporation in state court. The action was removed to federal court
and, thereafter, the Lees filed an amended complaint that included
class action allegations. The claims against Defendant Engelhart
were dismissed on Jan. 16, 2020.
On Feb. 20, 2020, Cincinnati Capital asserted the following
counterclaims against the Lees: 1) Breach of Contract (Count I); 2)
Promissory Estoppel (Count II); and 3) Unjust Enrichment (Count
III).
On July 20, 2020, the Lees filed their Second Amended Class Action
Complaint, asserting the following claims against Cincinnati
Capital: 1) Violation of the SMLA, Mich. Comp. Laws Ann. Section
493.51, et seq. (Count I); 2) Unjust Enrichment/Restitution (Count
II); 3) Violation of Truth-in-Lending Act, 15 U.S.C. Sections 1601,
et seq. (Count III); and 4) Violation of the Real Estate Settlement
Procedures Act 12 U.S.C. Sections 2601, et seq. (Count IV).
On Sept. 18, 2020, Cincinnati Capital filed a Motion for Judgment
on the Pleadings. The Court granted it in part and denied it in
part. The Court granted the motion to the extent that it ruled that
Cincinnati Capital is entitled to judgment on the pleadings with
respect to Counts I, II, and IV. With respect to the Lees' TILA
claims asserted in Count III, the Court ruled that the sole claim
remaining is the Lees' claim under Section 1641(g) that Cincinnati
Capital failed to notify the borrowers in writing of the assignment
of a mortgage loan from the creditor to the assignee.
The Lees filed a motion seeking reconsideration of those rulings
and that motion is currently pending before this Court.
Accordingly, at this juncture, the following claims remain in this
case: 1) the Lees' TILA claim asserted in Count III of their Second
Amended Complaint; and 2) all three of Cincinnati Capital's
counter-claims against the Lees.
The Court issued notices and orders in order to conduct a
settlement conference in this case and ordered that counsel, along
with all of their clients and persons with full settlement
authority to attend the conference.
The Court held that in-person settlement conference with counsel
for the parties, with their clients present on Sept. 30, 2021, and
Oct. 1, 2021. The Lees attended those conferences in person, along
with their counsel. Joseph Engelhart, the Chief Executive Officer
of Cincinnati Capital, also attended those conferences in person,
along with its counsel. The case did not resolve. At the end of the
conference on Oct. 1, 2021 -- just before the parties left -- the
Court directed counsel and their clients, to return to chambers to
continue the settlement conference on Monday, Oct. 4, 2021, at 9:00
a.m. When the Court did so, Mr. Lee asked to be excused from
personally appearing for the Monday morning conference because he
had a previously-scheduled event planned. The Court denied Mr.
Lee's request.
On Oct. 2, 2021, Cincinnati Capital filed an "Emergency Motion To
Adjourn Continued Settlement Conference." In it, Cincinnati Capital
stated that after Mr. Engelhart left the courthouse on Oct. 1,
2021, he was reminded by his counsel in Ohio that he was needed in
a court proceeding in Ohio on Oct. 4, at 9:30 a.m., and asked that
the Court accommodate him by either adjourning the conference in
this case until Oct. 5, at 9:00 a.m. or moving the conference to
noon on Oct. 4 and allowing Engelhart to participate via zoom. That
filing identified the state-court case that Engelhart needed to
attend in Ohio as Cincinnati Capital Holdings, LLC v. Robert
Cherry, Case No. A2101125.
On Oct. 3, 2021, the Lees filed a response brief in opposition to
the motion.
On the morning of Oct. 4, 2021, the Court resumed the settlement
conference. The Court was not aware of the motion that had been
filed over the weekend. When the Court met with counsel for
Cincinnati Capital that morning, they did not advise him that Mr.
Engelhart was not present for the conference or that they had filed
the emergency motion over the weekend.
Once this came to the Court's attention, the Court went on the
record and expressed its frustration and disappointment that Mr.
Engelhart was not present for the continued settlement conference.
While the matter was on the record on Oct. 4, 2021, counsel for the
Lees made an oral motion requesting sanctions for Mr. Engelhart's
failure to appear for the conference.
Later that day, the Court contacted the chambers of the judge
presiding over the state-court case referenced in Cincinnati
Capital's Emergency Motion to Adjourn, and was told that no
hearings were scheduled in that case for Oct. 4, 2021.
On Oct. 5, 2021, the Court issued an order regarding the oral
motion that had been made by the Lees, directing the parties to
file briefs. Thereafter, the parties filed briefs and the Court
heard oral argument. The Court also encouraged the parties to
discuss the motion, to see if they could come to a resolution
without the Court's involvement. They were unable to do so. Thus, a
ruling from the Court is required.
Analysis
The Lees' motion asserts that this Court should exercise its
inherent authority to hold Cincinnati Capital and Mr. Engelhart in
contempt and punish them for willfully disobeying the Court's order
to appear for the continued settlement conference on Oct. 4, 2021.
As to the relief requested by the Lees, they ask that the Court:
* Dismiss Defendant's counterclaim with prejudice;
* Strike Defendant's Answer to the Second Amended Complaint
and Strike Defendant's Motion for Judgment on the Pleadings;
alternatively, Grant the Lees' pending motion for
reconsideration;
* Enter Default Judgment in favor of the Lees on Count I,
Count II and Count III of their Second Amended Complaint on
the issue of liability; and leave the issues of class
certification and damages to be determined; and
* Award the Lees their costs and attorney's fees associated
with:
(i) appearing for the settlement conference on Thursday,
Sept. 30, 2021, Friday, Oct. 1, 2021, and Monday,
Oct. 4, 2021;
(ii) investigating the veracity of the Defendant's and
Mr. Engelhart's excuse and misrepresentations;
(iii) preparing this brief in support of motion for contempt
and sanctions; and
(iv) appearing for the hearing on the instant motion.
Having carefully reviewed everything presented by the parties, the
Court concludes that neither Cincinnati Capital nor Mr. Engelart
willfully disobeyed the Court's orders.
Mr. Engelhart appeared for the settlement conferences with this
Court on Sept. 30, 2021, and Oct. 1, 2021, and participated in them
in good faith. When the case did not resolve, at the end of a long
day on October 1st, the Court made a last-minute decision and
directed the parties and their clients to return the following
Monday morning, to continue the conference.
After Mr. Engelhart left the courthouse Friday evening, however,
his counsel in Ohio reminded him that he was needed in an Ohio
court proceeding on Monday morning. That left Mr. Engelhart in a
difficult position, given that he could not appear in both cases at
the same time, District Judge Sean F. Cox notes. As a result, Mr.
Engelhart's counsel prepared and filed an emergency motion asking
that the conference in this case either be adjourned until October
5th or that it be moved to noon on October 4th with Mr. Engelhart
appearing by video conference. In quickly filing that motion, they
identified the wrong case number of the Hamilton County Ohio case
in which Mr. Engelhart needed to appear on Oct. 4, 2021
(identifying it as Cincinnati Capital Holdings, LLC v. Robert
Cherry, Case No. A2101125 rather than Cincinnati Capital Holdings,
LLC v. Walter Cherry et al., Case No. A2101062).
Given that the Lees had filed a brief opposing the emergency
motion, and understanding that the motion would likely not be ruled
upon prior to the Monday morning conference, Cincinnati Capital and
Mr. Engelhart took reasonable measures to attempt to comply with
the Court's directive to appear for a continuation of the
settlement conference. Mr. Engelhart is the sole officer of the
corporation, and its only employees consist of two administrative
assistants. As such, Mr. Engelhart met with Benjamin Marck, a
contractor, discussed this case with him, and purported to give him
full authority to settle the matter on behalf of Cincinnati
Capital. Mr. Marck then appeared for the settlement conference,
along with Cincinnati Capital's counsel, on Oct 4, 2021.
While Cincinnati Capital's counsel may have been less than candid
with the Court, by not advising that Mr. Engelhart was not present
when the Court met with them on Monday morning, this Court
concludes that Cincinnati Capital and Mr. Engelhart took reasonable
and good faith measures in an attempt to comply with this Court's
directive. The Court regrets that Mr. Lee missed the business event
he had planned to attend on Oct. 4, 2021, but that is a result of
the Court's ruling on his request, not actions taken by Cincinnati
Capital or Mr. Engelhart, Judge Cox says.
At the end of the day, the Court concludes that neither Cincinnati
Capital nor Mr. Engelhart willfully disobeyed the Court's orders
and that, under the circumstances presented, no sanctions are
warranted, let alone the drastic sanctions requested by the Lees.
Conclusion & Order
For the reasons set forth, it is ordered that the Lees' Motion for
Sanctions and Contempt is denied.
A full-text copy of the Court's Opinion & Order dated Nov. 29,
2021, is available at https://tinyurl.com/2j546mhs from
Leagle.com.
CITRIX SYSTEMS: ClaimsFiler Reminds of January 18 Deadline
----------------------------------------------------------
ClaimsFiler, a FREE shareholder information service, reminds
investors with losses in excess of $100,000 that they have until
January 18, 2022 to file lead plaintiff applications in a
securities class action lawsuit against Citrix Systems, Inc.
(NASDAQ:CTXS), if they purchased the Company's shares between
January 22, 2020 and October 6, 2021, inclusive (the "Class
Period"). This action is pending in the United States District
Court for the Southern District of Florida.
Citrix investors should visit us at
https://claimsfiler.com/cases/nasdaq-ctxs-2/ or call toll-free
(844) 367-9658. Lawyers at Kahn Swick & Foti, LLC are available to
discuss your legal options.
About the Lawsuit
Citrix and certain of its executives are charged with failing to
disclose material information during the Class Period, violating
federal securities laws.
On July 29, 2021, the Company disclosed that its transition to
cloud-based services had not been as successful as the Company had
led investors to believe, citing to "the need to evolve our sales
strategy to deliver more predictable results" as well as a major
restructuring of its sales leadership in order to "enhance [its]
focus on" cloud migration.
On this news, shares of Citrix fell 13.6%, from $114.55 per share
to $99.00 per share.
Then, on October 6, 2021, post-market, the Company disclosed that
its President and Chief Executive Officer ("CEO") had stepped
down.
On this news, shares of Citrix fell 7.2% over the next two days,
from $105.96 per share to $98.32 per share.
The case is City of Hollywood Police Officers' Retirement System v.
Citrix Systems, Inc., 21-cv-62380.
About ClaimsFiler
ClaimsFiler has a single mission: to serve as the information
source to help retail investors recover their share of billions of
dollars from securities class action settlements. At
ClaimsFiler.com, investors can: (1) register for free to gain
access to information and settlement websites for various
securities class action cases so they can timely submit their own
claims; (2) upload their portfolio transactional data to be
notified about relevant securities cases in which they may have a
financial interest; and (3) submit inquiries to the Kahn Swick &
Foti, LLC law firm for free case evaluations.
To learn more about ClaimsFiler, visit www.claimsfiler.com. [GN]
D-MARKET ELEKTRONIK: Kirby McInerney Reminds of Dec. 20 Deadline
----------------------------------------------------------------
The law firm of Kirby McInerney LLP reminds investors that
securities class action lawsuits have been filed on behalf of
investors in securities of D-MARKET Elektronik Hizmetler ve Ticaret
Anonim Şirketi a/k/a D-MARKET Electronic Services & Trading d/b/a/
Hepsiburada, InnovAge Holding Corp., and Lightning eMotors, Inc.
Investors have until the deadlines below to apply to the Court to
be appointed as lead plaintiff in the lawsuits. Additional
information about each case can be found at the links provided
below.
D-MARKET Elektronik Hizmetler ve Ticaret Anonim Sirketi a/k/a
D-MARKET Electronic Services & Trading d/b/a/ Hepsiburada
("Hepsiburada" or the "Company") (NASDAQ: HEPS)
Class Period: June 27, 2021 to October 21, 2021
Pending Court: U.S. District Court for the Southern District of New
York
Lead Plaintiff Deadline: December 20, 2021
The lawsuit alleges that the Registration Statement was materially
false and misleading and omitted to state: (1) that Hepsiburada
suffered a sharp deceleration in operational and sales growth
during second quarter 2021; (2) that, as a result, the Company
initiated certain actions to fortify its competitive position,
including investing in electronics and high frequency categories
and discounting certain categories; (3) that, as a result of the
foregoing, Hepsiburada's revenue and Gross Merchandise Value had
declined during second quarter 2021; and (4) that, as a result of
the foregoing, Defendants' positive statements about the Company's
business, operations, and prospects, were materially misleading
and/or lacked a reasonable basis.
For additional information on the Hepsiburada lawsuit please visit
this website.
InnovAge Holding Corp. ("InnovAge" or the "Company") (NASDAQ:
INNV)
Class Period: March 2, 2021 to October 14, 2021
Pending Court: U.S. District Court for the District of Colorado
Lead Plaintiff Deadline: December 13, 2021
The lawsuit alleges throughout the Class Period, Defendants failed
to disclose to investors: (1) that certain of InnovAge's facilities
failed to provide covered services, provide accessible and adequate
services, manage participants' medical situations, and oversee use
of specialists; (2) that, as a result, the Company was reasonably
likely to be subject to regulatory scrutiny, including by the
Centers for Medicare and Medicaid Services ("CMS"); (3) that, as a
result, there is a significant risk that CMS would suspend new
enrollments pending an audit of the Company's services; and (4)
that, as a result of the foregoing, Defendants' positive statements
about the Company's business, operations, and prospects, were
materially misleading and/or lacked a reasonable basis.
For additional information on the InnovAge lawsuit please visit
this website.
Lightning eMotors, Inc. ("Lightning eMotors" or the "Company")
(NYSE: ZEV)
Class Period: May 7, 2021 to August 16, 2021
Pending Court: U.S. District Court for the District of Colorado
Lead Plaintiff Deadline: December 14, 2021
The lawsuit alleges throughout the Class Period, Defendants (i)
failed to disclose that the Company would record a substantially
greater net loss per share in the second quarter of 2021 compared
to the second quarter of 2020 and would pull its full year guidance
for the remainder of 2021; and (ii) materially overstated the
Company's financial position and/or prospects.
For additional information on the Lightning eMotors lawsuit please
visit this website.
About Kirby McInerney LLP:
Kirby McInerney is a New York-based plaintiffs' law firm
concentrating in securities, antitrust, whistleblower, and consumer
litigation. The firm's efforts on behalf of shareholders in
securities litigation have resulted in recoveries totaling billions
of dollars. Additional information about the firm can be found at
Kirby McInerney's website: www.kmllp.com.
This press release may be considered Attorney Advertising in some
jurisdictions under the applicable law and ethical rules.
Contacts
Kirby McInerney LLP
Thomas W. Elrod, Esq.
(212) 371-6600
investigations@kmllp.com
www.kmllp.com [GN]
DAIFUKU NORTH: Shaw Suit Remanded to Sacramento County Super. Court
-------------------------------------------------------------------
In the lawsuit styled MICHAEL SHAW, Plaintiff v. DAIFUKU NORTH
AMERICA HOLDING COMPANY, et al., Defendants, Case No.
2:21-cv-01461-DAD-JLT (E.D. Cal.), the U.S. District Court for the
Eastern District of California grants the Plaintiff's motion to
remand and request for attorneys' fees.
The matter is before the Court on the Plaintiff's motion to remand
this action to the Superior Court of the State of California for
the County of Sacramento filed on Aug. 31, 2021. Pursuant to
General Order No. 617 addressing the public health emergency posed
by the COVID-19 pandemic, the Plaintiff's motion was taken under
submission on the papers.
Background
The Plaintiff's motion concerns whether the Court can exercise
federal jurisdiction over a removed Private Attorneys General Act
("PAGA") case based on the sole fact that a nearly identical Class
Action Fairness Act ("CAFA") case is already pending before it.
The Plaintiff has brought a PAGA claim seeking civil penalties on
behalf of the state of California and allegedly aggrieved
California employees of Defendants Daifuku North America Holding
Company and Elite Line Services, Inc. He filed his original
complaint in Sacramento County Superior Court on May 25, 2021. The
Defendants subsequently removed the action to this federal court on
Aug. 16, 2021.
The Defendants premised their removal on the basis that this Court
has supplemental jurisdiction over this action pursuant to 28
U.S.C. Section 1367(a) because a separate class action dealing with
the same facts, parties, and issues is already pending before the
Court. The Plaintiff, arguing that supplemental jurisdiction cannot
serve as a basis for removal, filed his motion to remand on Aug.
31, 2021. On Sept. 21, 2021, the Defendants filed an opposition to
the Plaintiff's motion to remand. On Sept. 28, 2021, the Plaintiff
filed a reply thereto.
A. Motion to Remand
The Plaintiff has filed two separate actions. He has filed a CAFA
action in federal court, over which the Court has original
jurisdiction, and he has filed a PAGA action in state court, over
which the Court does not have original jurisdiction. See Guzman v.
Peri & Sons Farms of California, LLC, No. 1:21-cv-00348-NONE-SKO,
2021 WL 3286063, at *3 (E.D. Cal. Aug. 2, 2021). The Plaintiff did
not file the two cases together.
After removing this action, the Defendants filed a motion to
consolidate in the pending CAFA case, wherein they seek to
consolidate that action with this one. See Shaw v. Elite Line
Services, Inc., No. 1:21-cv-01084-DAD-JLT, Mot. to Consolidate,
Doc. No. 10 (E.D. Cal. Aug. 24, 2021). That motion has been stayed
pending the outcome of the pending motion to remand at issue here.
In moving to remand this case, the Plaintiff argues that
supplemental jurisdiction alone cannot serve as the basis for
removal, even if the two cases are nearly identical. In opposing
the Plaintiff's motion for remand, the Defendants ask the Court to
recognize an exception to the general rules of removal where a
plaintiff improperly splits his claim in an effort to "forum shop"
and to allow removal based on supplemental jurisdiction under such
circumstances.
The Court finds the Plaintiff's arguments to be persuasive. The
Defendants argue that the Court should decline to follow these
decisions because declining to exercise supplemental jurisdiction
will encourage forum shopping and claim splitting. The Court finds
this argument unavailing.
District Judge Dale A. Drozd notes that this parallel litigation is
nothing new and does not warrant the Court's creation of a novel
rule that would undermine the clear understanding of original
jurisdiction. Accordingly, the Court will grant the Plaintiff's
motion to remand.
B. Request for Attorneys' Fees
The Plaintiff also seeks attorneys' fees in this matter for the
amount of $10,975.
The Court concludes that the Defendants' basis for removal was
objectively unreasonable. The law compelling the remand of this
action to state court is well established. The Plaintiff should not
be required to pay for the Defendants' desire to make an attempt to
change long standing rules governing removal to federal court in
the absence of original jurisdiction.
The Plaintiff's request for attorneys' fees will, therefore, be
granted, Judge Drozd holds. Nonetheless, given the minimal briefing
required on this issue and the lack of a hearing being held on the
motion, the Court will decrease the award of attorneys' fees, as is
within the Court's discretion. The Court will, therefore, award the
Plaintiff $6,500 in attorneys' fees for being required to file his
motion to remand this action.
Conclusion
For the reasons set forth, the Plaintiff's motion to remand this
action is granted. The Plaintiff's request for attorneys' fees is
granted in the amount of $6,500.
The action is remanded to the Superior Court of the State of
California for the County of Sacramento, pursuant to 28 U.S.C.
Section 1447(c), for lack of subject matter jurisdiction. The Clerk
of the Court is directed to close this case.
A full-text copy of the Court's Order dated Nov. 29, 2021, is
available at https://tinyurl.com/8jwvzvtm from Leagle.com.
DOUYU INT'L: Plaintiffs' Objection to Dismissal Bid Due Dec. 15
---------------------------------------------------------------
Judge Denise Cote of the U.S. District Court for the Southern
District of New York directed the Plaintiffs to serve any
opposition to the motion to dismiss by Dec. 15, 2021, in the
lawsuit entitled IN RE DOUYU INTERNATIONAL HOLDINGS LIMITED
SECURITIES LITIGATION, Case No. 20cv7234 (DLC) (S.D.N.Y.).
On May 21, 2021, several Defendants filed motions to dismiss the
second amended complaint in this class action pursuant to Rule
12(b)(6) of the Federal Rules of Civil Procedure. On June 11, the
Plaintiffs filed a third amended complaint. An Order of June 14
terminated the May 21 motions as moot and ordered the Defendants to
respond to the third amended complaint.
Defendants DouYu, Cogency Global Inc., and Richard Arthur, and
Morgan Stanley & Co. LLC, J.P. Morgan Securities LLC, BofA
Securities, Inc., and CMB International Capital Limited renewed
their motions on July 19. Those motions became fully submitted on
Oct. 14.
On Nov. 24, remaining Defendant Tencent Holdings Limited, a
shareholder of DouYu, filed a motion to dismiss on overlapping
grounds.
Order
The Court ruled that the Plaintiffs will serve any opposition to
the motion to dismiss by Dec. 15, 2021. Tencent's reply, if any,
will be served by Dec. 29. At the time any reply is served, the
moving party will supply the Chambers with two (2) courtesy copies
of all motion papers by mailing or delivering them to the United
States Courthouse, at 500 Pearl Street, in New York City.
A full-text copy of the Court's Order dated Nov. 29, 2021, is
available at https://tinyurl.com/2p99ea9p from Leagle.com.
EQUIFAX INFORMATION: Torres Files FCRA Suit in M.D. Pennsylvania
----------------------------------------------------------------
A class action lawsuit has been filed against Equifax Information
Solutions LLC. The case is styled as Dr. Anthony Torres, D.O.,
Individually, and on behalf of all other similarly situated
consumers v. Equifax Information Solutions LLC, Case No.
1:21-cv-02056-CCC (M.D. Pa., Dec. 7, 2021).
The lawsuit is brought over alleged violation of the Fair Credit
Reporting Act.
Equifax Information Services https://www.equifax.com/ -- offers
financial, consumer and commercial data, and analytical
solutions.[BN]
The Plaintiff is represented by:
James A. Francis, Esq.
FRANCIS MAILMAN SOUMILAS, P.C.
1600 Market Street, Suite 2510
Philadelphia, PA 19103
Phone: (215) 735-8600
Fax: (215) 940-8000
Email: jfrancis@consumerlawfirm.com
- and -
John Soumilas, Esq.
Lauren KW Brennan
FRANCIS & MAILMAN PC
100 S. Broad Street, 19th Fl.
Philadelphia, PA 19110
Phone: (215) 735-8600
Email: jsoumilas@consumerlawfirm.com
lbrennan@consumerlawfirm.com
GEBRUEDER KNAUF: Karma Zelenenki Files Suit in S.D. Florida
-----------------------------------------------------------
A class action lawsuit has been filed against Gebrueder Knauf
Verwaltungsgesellschaft, KG. The case is styled as Karma Zelenenki,
on behalf of themselves and all others similarly situated v.
Gebrueder Knauf Verwaltungsgesellschaft, KG, Case No.
1:21-cv-24215-RNS (S.D. Fla., Nov. 29, 2021).
The nature of 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: Michael Zelenenki Files Suit in S.D. Florida
-------------------------------------------------------------
A class action lawsuit has been filed against Gebrueder Knauf
Verwaltungsgesellschaft, KG. The case is styled as Michael
Zelenenki, on behalf of themselves and all others similarly
situated v. Gebrueder Knauf Verwaltungsgesellschaft, KG, Case No.
1:21-cv-24195-RNS (S.D. Fla., Nov. 29, 2021).
The nature of 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: Bid to Dismiss & Strike Class Claims in Talley OK'd
-------------------------------------------------------------------
In the case, CHRIS TALLEY, MARIE FRANZEN, JESSICA LOADHOLTES,
ROBERT. LOADHOLTES, MARK PREVITI, LEE ANN MILLER, CORY SEALE, AND
DAMION HARRIS, individually and on behalf of all others similarly
situated Plaintiffs v. GENERAL MOTORS, LLC, Defendant, Case No.
1:20-cv-01137-SB (D. Del.), Judge Stephanos Bibas of the U.S.
District Court for the District of Delaware grants GM's motion to
dismiss every claim and to strike the class allegations.
Background
The Plaintiffs hail from five different states but they are united
as buyers of 2016 or 2017 Chevrolet Camaros. And they are not
pleased about it. Those cars, they allege, have defective starter
motors.
When turned, a car key triggers the starter motor, which engages
the car's engine. Because the starter is so close to the engine, it
can absorb a lot of heat. That can cause the starter to fail. To
prevent this, manufacturers install heat shields.
The drivers say that every Camaro since model year 2010 has a
defective heat shield. As a result, they claim, their starters are
exposed to excessive heat, damaging them and other important parts.
The drivers call this problem "the starter defect."
The drivers also say that the starter defect makes their cars
unsafe. They say it can cause their cars to start slowly, not start
at all, or stall mid-drive. Whatever the flaw, the drivers say the
defect makes them "more likely to be involved in a collision
because the vehicle cannot move on its own."
The drivers further say this problem is so common that GM drafted a
document instructing dealerships on "the replacement of the starter
due to heat damage from the engine." Plus, some dealerships
admitted that they were "aware" of the starter defect.
Distressed by their mounting repair bills, the drivers bring a
class action against GM. Eight named plaintiffs sue under the laws
of five states: Talley (Maryland); Previti and Franzen
(California); the Loadholteses and Seale (Florida); Harris
(Georgia); and Miller (Pennsylvania).
Because the drivers allege a violation of federal law, they also
sue on behalf of everyone in the United States who bought or leased
a post-2010 Camaro. The drivers allege that GM violated a raft of
federal and state consumer-protection laws, breached the warranties
(express and implied) that came with their cars, and unjustly
enriched itself by selling cars that it knew were defective.
GM contests almost everything the drivers say. It moves to dismiss
these claims and to strike the class allegations.
Discussion
A. Motion to Dismiss
I. Consumer Protection Claims
The drivers assert that GM violated a legion of state laws banning
unfair or deceptive trade practices. They say those laws required
GM to tell consumers about the starter defect. GM parries with five
arguments: (i) it had no duty to disclose the starter defect; (ii)
the drivers never pleaded an affirmative act of concealment beyond
mere silence; (iii) the drivers never pleaded that GM knew of the
starter defect; (iv) the drivers never pleaded that they relied on
GM's alleged omission; and (v) some of the drivers' claims are
time-barred.
Judge Bibas opines that the first four fail; the last succeeds in
part. First, he finds that the drivers plausibly pleaded that GM
knew about the starter defect. That defect is material because it
concerns the Camaro's safety. And a car that struggles (and
sometimes fails) to start is worth less than one that does not.
Second, Judge Bibas holds that the drivers need not plead acts
beyond mere silence to state consumer protection claims. Again, GM
fails to knock out any claim.
Third, the drivers plausibly allege that GM knew of the starter
defect. Plus, the drivers note that some dealers admitted awareness
of the starter defect. Indeed, they say the problem is so prevalent
that GM drafted a document teaching mechanics how to replace
"faulty" starters. Taken together, these factual assertions
plausibly plead knowledge.
Fourth, Judge Bibas finds that the drivers plausibly plead that
they relied on GM's omissions. He disagrees with GM that the
drivers failed to allege that they relied on an omission to state a
consumer-protection claim. He says, the drivers swear that they
would have paid less for the Camaro (or not bought it) had they
known of the starter defect. That is reasonable: Cars that start
are worth more than cars that do not. Plus, the drivers all claim
to have studiously researched the Camaro before buying it. So if GM
had disclosed the starter defect, they would have known about it.
Thus, where required, they have properly pleaded reliance.
Lastly, Judge Bibas holds that some of the consumer-protection
claims are time-barred. He dismisses the Loadholteses'
consumer-protection claims with prejudice. He finds it is true, the
deadline is extended by fraudulent concealment. But the concealment
must involve more than "mere non-disclosure." Instead, such fraud
must be active. In the case, the dealer made ineffective repairs.
But that is not active fraud. However, Judge Bibas holds that
California driver Previti's claim survives. Previti's earliest
reasonable discovery date was a few months before he joined the
lawsuit, well within the shorter of California's two statutory
deadlines.
II. Express-Warranty Claims
The drivers say that their cars were covered by one of two
warranties: GM's new vehicle limited warranty or its certified
preowned vehicle warranty. Both provide that GM will repair the
Camaros if the cars break down during a certain time. The drivers
say that GM breached those warranties because it never solved the
starter defect; instead, it replaced faulty starters with equally
faulty parts.
GM counters with several legal arguments. It notes that some
warranties were expired. It argues that some of the drivers' claims
fail because dealerships, not GM, sold the relevant Camaros. It
also says that a few drivers voided their warranties by using
non-GM parts to fix the starter defect. Last, GM argues it
satisfied its warranty obligations by offering to repair the
drivers' cars.
Judge Bibas opines that some express warranties had expired by the
time the starter defect appeared. First, he finds that the
Loadholteses' starter broke nine months after their warranty
expired. Harris' warranty coverage ended a month before he sought
repairs. Both respond that the warranty is unconscionable. So, he
will dismiss their express-warranty claims with prejudice.
Second, Judge Bibas finds that Miller fails to show that her car
was under warranty. Her starter began to fail two and a half years
after she bought the car. But she never says how many miles her
Camaro had at that point. She could have exceeded the 36,000 mile
coverage limit. So Judge Bias will also dismiss Miller's
express-warranty claim. But he does so without prejudice. If Miller
wants, she can amend the complaint and add details to show that her
car was still under warranty.
Third, two other drivers, Franzen and Seale, survive GM's timing
challenges. Franzen bought a certified preowned Camaro with 33,088
miles. The car came with a warranty that expired after one year or
12,000 miles. Franzen experienced the starter defect eleven months,
but 18,000 miles later. Normally, warranties say that coverage ends
after one year or 12,000 miles, whichever comes first. If that is
true, Franzen's claim crumbles. But for now, the Court must take
Franzen at her word. And she says that the warranty was good for at
least one year. So, Judge Bibas will not dismiss her
express-warranty claim yet.
Finally, Seale says his car was warrantied for two years and 19,000
miles. But six months after he bought it, he experienced the
starter defect. GM notes that Seale never pleaded the mileage at
which his car began to exhibit the starter defect. But that
omission is not fatal. Reading his claim in the light most
favorable to Seale, he probably did not drive 19,000 miles in six
months. So Judge Bibas will not dismiss Seale's claim either.
Judge Bibas also opines that GM's other express-warranty arguments
fail. All the remaining express-warranty claims survive.
Among other things, GM says that Seale's claim fails for lack of
privity: Seale bought his Camaro from a dealership, not GM, so he
cannot sue it. That is wrong as Seale's warranty applies "to the
original and any subsequent owners of the vehicle during the
warranty period." Seale paid more for the warranty. The law should
honor his bargain, so Judge Bibas will not dismiss his claim for
lack of privity.
III. The Magnuson-Moss Warranty Act Claims
Judge Bibas finds that the drivers rely on Magnuson-Moss for a
cause of action. They cannot rely on CAFA for a cause of action
because that law gives only jurisdiction. They bring their suits
under paragraph (1)(B) of the Act. Yet they do not name 100
plaintiffs as required. So their claim is not cognizable. Judge
Bibas will dismiss it without prejudice. The drivers can add 92 o
other plaintiffs if they wish.
IV. Implied-Warranty Claims
The drivers allege that GM breached that implied warranty by
selling cars that struggle (and sometimes fail) to start. But many
of these claims fail.
Judge Bibas will (i) will dismiss Previti's claims without
prejudice; (ii) will dismiss Miller's claims with prejudice because
Miller had no implied warranty when the car became unsafe and
unreliable; and (iii) will not dismiss Talley's claims because he
plausibly pleads that the defect existed when he bought the Camaro,
and his claim may proceed.
V. Unjust Enrichment Claims
The drivers claim that GM unjustly enriched itself at their
expense. Judge Bibas finds that Florida, Georgia, and Pennsylvania
law preclude this claim. Maryland and California law do not. So,
some claims may proceed. Among other things, Judge Bibas (i) will
dismiss Florida drivers' claim with prejudice; (ii) will dismiss
Harris and Miller's unjust-enrichment claims with prejudice; (iii)
will not dismiss Talley's claim because he pleads fraud; (iv) holds
that Franzen and Previti's claims may continue because California
does not allow standalone unjust-enrichment claims.
B. Motion to Strike
The drivers bring their claims on behalf of Camaro owners all
across America. Alternatively, they bring their claims on behalf of
Camaro owners from their states. GM seeks to strike all these class
allegations. They say the drivers cannot show that "questions of
law or fact common to class members predominate over any questions
affecting only individual members."
First, Judge Bibas will strike the nationwide class' allegations of
unjust enrichment. Because he is dismissing the Magnuson-Moss
claims, that request is moot. But he will strike the nationwide
class' unjust-enrichment claim. The drivers never say which state's
unjust-enrichment law applies. So he must look to Delaware law.
Judge Bibas will grant GM's motion to strike this claim. To be
clear, he says, the drivers who survived the motion to dismiss can
still bring their unjust-enrichment claims, they just cannot do so
on behalf of a nationwide class.
Second, Judge Bibas finds that GM does not show that any other
class' consumer-protection and warranty claims fail the
predominance requirement. So he will deny those motions to strike.
Conclusion
Judge Bibas concludes that class actions can be complex. The case
is no exception. So he lists the claims he dismisses or strikes for
clarity.
Judge Bibas dismisses these with prejudice: The Loadholteses'
consumer-protection, express-warranty, implied-warranty, and
unjust-enrichment claims; Seale's implied-warranty and
unjust-enrichment claims; Previti's implied-warranty claim; Harris'
express-warranty, implied-warranty, and unjust-enrichment claims;
and Miller's implied-warranty and unjust-enrichment claims.
He dismisses these without prejudice: Franzen's implied-warranty
claims; Miller's ex-press-warranty claims; and the Magnuson-Moss
claims for every plaintiff.
Finally, he strikes the nationwide class allegations for unjust
enrichment. All others live to fight another day.
A full-text copy of the Court's Nov. 26, 2021 Memorandum Opinion is
available at https://tinyurl.com/bddmvpx8 from Leagle.com.
Russell D. Paul -- rpaul@bm.net -- Amey J. Park -- apark@bm.net --
Abigail J. Gertner -- agertner@bm.net -- BERGER MONTAGUE PC, in
Philadelphia, Pennsylvania; Tarek H. Zohdy --
Tarek.Zohdy@capstonelawyers.com -- Cody R. Padgett --
Cody.Padgett@capstonelawyers.com -- CAPSTONE LAW APC, in Los
Angeles, California, counsel for the Plaintiffs.
Oderah C. Nwaeze -- oderah.nwaeze@faegredrinker.com -- FAEGRE
DRINKER BIDDLE & REATH LLP, in Philadelphia, Pennsylvania;
Christine W. Chen -- christinechen@quinnemanuel.com -- Crystal
Nix-Hines -- crystalnixhines@quinnemanuel.com -- Shon Morgan --
shonmorgan@quinnemanuel.com -- Meredith R. Mandell --
meredithmandell@quinnemanuel.com -- QUINN EMANUEL URQUHART &
SULLIVAN, LLP, in Los Angeles, California, counsel for the
Defendant.
GENERAL MOTORS: Johnson's Bid to Intervene in Martell Suit Denied
-----------------------------------------------------------------
Judge Michael H. Simon of the U.S. District Court for the District
of Oregon denies the motion to intervene filed by Daniel Johnson in
the lawsuit entitled WILLIAM MARTELL, individually and on behalf of
all others similarly situated, Plaintiff v. GENERAL MOTORS LLC,
Defendant, Case No. 3:20-cv-284-SI (D. Or.).
Plaintiff Martell brings this putative class action against
Defendant GM. In his First Amended Complaint (FAC), Martell alleged
violations of the Oregon Unlawful Trade Practices Act (UTPA),
breach of express warranty, fraudulent concealment, and unjust
enrichment. Martell seeks to represent a class of "all current and
former owners or lessees of a Class vehicle (as defined herein)
that was purchased in the State of Oregon."
Pending before the Court is a motion to intervene filed by Daniel
Johnson (Johnson). Johnson is another Oregon purchaser of a GM
vehicle. He seeks to intervene and pursue his own claims and those
of the rest of the class. In his motion, Johnson asserts that
Martell's health renders him unable to continue to pursue his
claims and that Martell's exit from the case "threatens to leave
the Oregon class of purchasers and lessees, who have had Martell
pursuing their claims since 2017, without a representative."
Johnson included with his motion a Complaint-in-Intervention. GM
filed a response, opposing the motion to intervene.
Background
In 2011, Martell bought a 2011 Chevrolet Silverado equipped with a
Generation IV 5.3 Liter V8 Vortec 5300 LC9 engine (the Subject
Engine) from a Chevrolet dealership in The Dalles, Oregon (the
Dealership). Martell's car was covered by GM's standard five-year
express warranty. In 2015, Martell noticed that his vehicle was
consuming excessive engine oil, and Martell began experiencing
engine problems related to the excessive oil consumption. Martell
then took his vehicle to the Dealership for service numerous times.
Throughout 2015 and 2016, the Dealership repeatedly told Martell
that his vehicle's oil consumption level was "normal." Many of the
opinions commonly referenced for their analysis of permissive
intervention in general were issued before those amendments, and
thus cite to Rule 24(b)(2) of the Federal Rules of Civil Procedure
for those discussions (see, e.g., Donnelly v. Glickman, 159 F.3d
405, 411-12 (9th Cir. 1998)). Because no government officer or
agency is involved in this case, and the parties only make
permissive intervention arguments based on common questions of law
and fact, the Court assumes that the parties intended to refer to
Rule 24(b)(1)(a), rather than Rule 24(b)(2).
In late 2016, Martell's counsel investigated a suspected defect
causing Martell's car to consume excess oil (the Oil Consumption
Defect). In July 2017, the Dealership conducted an oil consumption
test on Martell's car. Upon receiving the results of this test,
which confirmed that the vehicle was using excessive oil, Martell
joined a class action lawsuit in the Northern District of
California (the Sloan Action) on Aug. 31, 2017. See Sloan v.
General Motors LLC, Case No. 3:16-cv-7244-EMC (N.D. Cal.). That
court, however, dismissed Martell from the Sloan Action on Feb. 11,
2020, concluding that under Bristol-Myers Squibb Co. v. Super. Ct.
of Cal., S.F. Cnty., 137 S.Ct. 1773 (2017), the Northern District
of California lacked personal jurisdiction over GM regarding
Martell's claims. See Sloan v. Gen. Motors LLC, 2020 WL 664033
(N.D. Cal. Feb. 11, 2020).
Mr. Martell then filed this lawsuit on Feb. 19, 2020, alleging that
the Subject Engine is defectively designed and asserting claims of
breach of express warranty, violation of the Magnuson Moss Warranty
Act (MMWA), fraudulent omission, violation of the UTPA, and unjust
enrichment. GM moved to dismiss, which the Court granted in part,
with leave to amend. Martell filed his FAC on Oct. 20, 2020, which
reasserted claims based on the UTPA, breach of express warranty,
fraudulent concealment, and unjust enrichment. GM again moved to
dismiss, which the Court denied on May 7, 2021.
On July 14, 2021, Martell's counsel informed the Court, that
Martell would no longer be able to participate as a party in the
action due to a medical condition and moved for a temporary stay of
all deadlines. The Court granted that motion. On Sept. 15, 2021,
the parties filed a Joint Status Report, and Johnson
contemporaneously filed the pending Motion to Intervene. With his
Motion to Intervene, Johnson filed a proposed
Complaint-in-Intervention (CI). In the proposed CI, Johnson
reasserts Martell's claims of a violation of the UTPA, fraudulent
concealment, and unjust enrichment. Johnson does not reassert
claims based on the MMWA or breach of express warranty.
Mr. Johnson alleges in the proposed CI that he lives in Philomath,
Oregon, and purchased a 2013 GMC Sierra equipped with the Subject
Engine on Aug. 2, 2020, from Guaranty Chevrolet, Inc., in Junction
City, Oregon. Johnson alleges that, despite GM's knowledge of the
defect, GM did not disclose the Oil Consumption defect before
Johnson purchased the 2013 Sierra, and that Johnson would not have
made the purchase at the price he paid had he known about the
defect.
Discussion
GM first argues in its opposition to Johnson's Motion to Intervene
that the motion is untimely and would prejudice GM. GM also appears
to collapse two of Rule 24(b)'s three threshold
considerations--whether the request is timely and whether Johnson
and Martell share common questions of law and fact. GM argues that
Martell's action has been pending for more than a year and a half,
during which Martell amended his complaint, the Court decided two
motions to dismiss, and discovery has been ongoing for several
months. GM also argues that there are key factual differences
between Johnson's circumstances as alleged in the proposed CI and
Martell's circumstances, as alleged in the FAC, such that allowing
Johnson to intervene would require the parties to engage in another
round of motion to dismiss briefing and to engage in discovery on
Johnson's "very different" factual allegations.
Essentially, GM contends that it would be prejudicial to grant the
motion both because the parties have substantively engaged on the
issues and because the issues presented by Johnson are so different
that he could not simply step into Martell's shoes. Specifically,
GM states that Johnson purchased a used 2013 GMC Sierra in August
2020 after the express warranty had expired and that, when Johnson
made his purchase, this case had been pending for six months and
the related Sloan/Siqueiros case had been pending for nearly four
years. Those facts, GM contends, create serious questions as to
whether Johnson knew about the Oil Consumption Defect before his
purchase, and those questions would undermine Johnson's ability to
seek relief under any of the three claims he asserts in the
proposed CI. According to GM, Johnson's 2020 purchase of a
seven-year-old vehicle apparently without a warranty is factually
different--and therefore gives rise to different legal
questions--than Martell's 2011 purchase of a new vehicle under
warranty.
The Court agrees that the factual and legal questions Johnson
proposes to present are distinct from those asserted by Martell.
Although Johnson did not assert claims for breach of express
warranty or under the MMWA, he asserts in his proposed CI claims of
an Oregon Unfair Trade Practices Act violation, unjust enrichment,
and fraudulent concealment.
The timing of Johnson's purchase, however, raises new issues
regarding those claims that will require additional discovery,
Judge Simon points out. For example, as this Court described in its
ruling on GM's most recent motion to dismiss, whether a plaintiff
making a claim under the Oregon Unlawful Trade Practices Act is
required to "show reliance on the alleged unlawful trade practice
depends on the conduct involved and the loss allegedly caused by
it," citing Martell v. Gen. Motors LLC, 2021 WL 1840759, at *5 (D.
Or. May 7, 2021) (quoting Pearson v. Philip Morris, Inc., 358 Or.
88, 127 (2015)).
In evaluating GM's motion, the Court discussed GM's conduct between
2010 and 2014, specifically Martell's reliance on GM's allegedly
knowingly inadequate instructions to their dealerships on how to
fix the Oil Consumption Defect. The conduct in question with
respect to Johnson's purchase in 2020--alleged failure to disclose
a defect that had been known to the public for several years and
the subject of multiple lawsuits--is quite different than the
conduct in question with respect to Martell's purchase in
2011--failure to disclose a defect allegedly known to the company,
but not yet known to the public, Judge Simon holds.
Similarly, the Court's ruling on GM's first motion to dismiss
concluded that Martell's unjust enrichment claim depended on the
interpretation of the applicable warranty. Judge Simon finds that
Johnson does not allege in his proposed CI any facts regarding his
vehicle's warranty--either that it is currently under warranty or
that it was subject to a warranty that has since expired.
Judge Simon notes that the Court need not decide at this time
whether a plaintiff who purchased a product that was, at the time
of purchasing, already the subject of long-standing,
highly-publicized class actions may assert the same claims as a
plaintiff who purchased the product long before any public
awareness of the product's defects. Rather, the Court finds only
that Johnson has not met the requirements imposed on applicants for
intervention under Rule 24(b)(1)(B), based on the material
differences in circumstances between Johnson and Martell in
conjunction with the late stage of these proceedings.
As a separate and independent basis to deny the Motion to
Intervene, GM argues that the Portland Division of the District of
Oregon is an inappropriate venue for Johnson's claims. Johnson
alleges that he resides in Benton County and purchased his vehicle
in Lane County, both of which are located within the Eugene
Division, and so GM argues that the Eugene Division is the
appropriate venue for Johnson's claims. Because the Court concludes
that the motion should be denied on the grounds previously stated,
the Court does not reach GM's venue argument.
Conclusion
The Court denies the pending Motion to Intervene.
A full-text copy of the Court's Opinion and Order dated Nov. 29,
2021, is available at https://tinyurl.com/3sknhmue from
Leagle.com.
Kim D. Stephens -- kstephens@tousley.com -- TOUSLEY BRAIN STEPHENS
PLLC, at 1200 Fifth Avenue, Suite 1700, in Seattle, Washington
98101; Adam J. Levitt -- alevitt@dicellolevitt.com -- John E.
Tangren -- jtangren@dicellolevitt.com -- and Daniel R. Ferri --
dferri@dicellolevitt.com -- DICELLO LEVITT GUTZLER LLC, at Ten
North Dearborn Street, Sixth Floor, in Chicago, Illinois 60602; and
W. Daniel "Dee" Miles III -- dee.miles@beasleyallen.com -- H. Clay
Barnett III -- clay.barnett@beasleyallen.com -- and J. Mitch
Williams -- Mitch.williams@Beasleyallen.com -- BEASLEY, ALLEN,
CROW, METHVIN, PORTIS & MILES PC, at 272 Commerce Street, in
Montgomery, Alabama 36104, Of Attorneys for the Plaintiff and the
Proposed Class.
Kathleen Taylor Sooy -- ksooy@crowell.com -- and April N. Ross --
aross@crowell.com -- CROWELL & MORING LLP, at 1001 Pennsylvania
Avenue NW, in Washington, D.C. 20004; and Jennifer L. Campbell --
jcampbell@schwabe.com -- and Stephanie C. Holmberg --
sholmberg@schwabe.com -- SCHWABE, WILLIAMSON & WYATT PC, at 1211 SW
Fifth Avenue, Suite 1900, in Portland, Oregon 97204, Of Attorneys
for the Defendant.
HILCORP ENERGY: Amended Carl Complaint Dismissed Without Prejudice
------------------------------------------------------------------
In the case, ANNE CARL, et al., Plaintiffs v. HILCORP ENERGY
COMPANY, Defendant, Civil Action No. 4:21-CV-02133 (S.D. Tex.),
Judge Keith P. Allison of the U.S. District Court for the Southern
District of Texas, Houston Division, granted the Defendant's Motion
to Dismiss the Amended Complaint.
Background
The case is a proposed class action brought by owners of royalties
for gas. Anne Carl and Anderson White, as Co-Trustees of the
Carl/White Trust ("Plaintiff"), is the successor in interest lessor
of the lease at issue. Defendant Hilcorp is the successor in
interest Lessee. It operates at least two wells on the lease: Old
Ocean Unit 253 (F24-F28) and Old Ocean Unit 249 (F24-F28). The
Plaintiff alleges that the Defendant has systematically underpaid
royalties in violation of the royalty provision of the lease.
Paragraph 3 of the Lease, which includes clauses on both gas
royalty and free use of gas, states:
Gas Royalty Clause: The royalties to be paid by Lessee are (b)
on gas, including casinghead gas or other gaseous substance,
produced from said land and sold or used off the premises or in the
manufacture of gasoline or other product therefrom, the market
value at the well of one-eighth of the gas so sold or used.
Free Use Clause Lessee will have free use of oil, gas, coal,
wood and water from said land, except water from Lessors' wells,
for all operations hereunder, and the royalty on oil, gas and coal
will be computed after deducting any so used.
As to the former, the Plaintiff alleges that the gas royalty clause
requires royalty to be paid on any gas used off the premises. The
Plaintiff indicates that the Defendant typically uses gas off the
lease premises to power the equipment that performs compression,
dehydration, treatment, or processing services, or to pay in-kind
for off-lease services. As to the latter, the Plaintiff alleges
that, even absent the royalty provision, the free use clause
independently and expressly allows gas to be used only on the lease
premises, so royalty must be paid for gas used off the lease
premises. The leases of the Plaintiff and putative class members
contain either or both clauses. The lawsuit arises from the fact
that the Defendant does not pay for (post-production) use of gas
off the lease premises.
The Plaintiff brings a single claim, for breach of contract,
against the Defendant under the Class Action Fairness Act. 28
U.S.C. Section 1332(d). After the Defendant filed a motion to
dismiss the original complaint on Aug. 18, 2021, the Plaintiff
filed an amended complaint on Sept. 8, 2021. The original motion to
dismiss was terminated, and on Sept. 22, 2021, the Defendant filed
the instant motion to dismiss the amended complaint under Federal
Rule of Civil Procedure 12(b)(6).
Discussion
Defendant Hilcorp argues that the breach of contract claim should
be dismissed because it did not violate the clauses at issue. It
argues that the lease is an "at the well" lease under which
royalties are subject to postproduction costs; that is, royalties
need not be paid on gas used off the premises to increase the value
of the raw gas in preparation for downstream sale. The Defendant
further argues that the "off-lease use" and "free use" provisions
on which the Plaintiff relies do not change this structure.
First, the Plaintiff argues that the gas royalty clause requires
royalty to be paid on any gas used off the premises. This argument
is unavailing, Judge Allison holds. In the case, he says, the lease
at issue provides that royalties on gas are to be paid based on
"the market value at the well of one-eighth of the gas so sold or
used." He finds that postproduction costs must be deducted from the
royalty calculation.
Judge Allison concludes that these "off-lease" uses are
post-production costs that are properly excluded from the royalty
calculation pursuant to the Gas Royalty Clause. He finds that the
lease does not define "post-production expenses" in any unique way.
Further, the Complaint acknowledges that produced "gas is typically
used off the lease premises to power the equipment that performs
compression, dehydration, treatment, or processing services, or to
pay in-kind for off-lease services."
Judge Allison also finds cases cited by the Defendant persuasive.
He agrees with the Defendant that applicable state and federal law
requires applying the "market value at the well" provision as the
"critical clause" in interpreting the lease agreement at issue.
The Plaintiff's Response centers on its interpretation of BlueStone
Nat. Res. II, LLC v. Randle, 620 S.W.3d 380, 386-87 (Tex. 2021), a
Texas Supreme Court decision issued this year. Relying on that
case, the Plaintiff argues that the "sold or used off the premises"
and "free use" clauses require the lessee to pay full royalty for
gas used off the premises, regardless whether the lease agreement
contains a "market value at the well" provision.
The Defendant rebuts that the Plaintiff's interpretation of Randle
is unavailing, and that the case is inapposite in the case. It
notes Randle did not interpret a lease agreement subject to a
"market value at the well" royalty valuation that allowed for
deduction of post-production costs. Judge Allison agrees with the
Defendant.
The Plaintiff also argues that the Court should not resolve the
above questions about the lease provisions at the 12(b)(6) stage.
However, Judge Allison interprets Paragraph 3 of the lease as a
matter of law, determining that Defendant is entitled to deduct
value-enhancing postproduction costs under the lease.
Finally, as noted, the Complaint alleges that "gas is typically
used off the lease premises to power the equipment that performs
compression, dehydration, treatment, or processing services, or to
pay in-kind for off-lease services." Judge Allison has concluded
that these off-premises uses constitute postproduction costs that
increase the value of the raw gas in preparation for downstream
sale. However, the Plaintiff may amend the Complaint to include
allegations, if any, that the Defendant is using gas off the lease
premises for purposes unrelated to post-production activities and
failing to pay royalties for those uses.
Conclusion
For the reasons he stated, Judge Allison granted the motion to
dismiss and dismissed the Complaint without prejudice.
The Plaintiff may amend the complaint by Dec. 17, 2021, to the
extent the Plaintiff alleges that the Defendant uses gas off the
lease premises for purposes unrelated to increasing the value of
the raw gas in preparation for downstream sale.
A full-text copy of the Court's Nov. 30, 2021 Memorandum & Order is
available at https://tinyurl.com/3snau9v4 from Leagle.com.
HOMELAND INSURANCE: Williams Suit Must Be Remanded to State Court
-----------------------------------------------------------------
In the case, George Raymond Williams, Medical Doctor, Orthopaedic
Surgery, a Professional Medical, L.L.C., Plaintiff-Appellant v.
Homeland Insurance Company of New York; Med-Comp USA, Incorporated,
Defendants-Appellees, Case No. 20-30196 (5th Cir.), the U.S. Court
of Appeals for the Fifth Circuit issued an Opinion:
a. reversing the district court's jurisdictional holding;
b. vacating the district court's judgment and other order; and
c. remanding the case to the district court with instructions
to remand the entire case to state court.
Introduction
A class of Louisiana medical providers (the "Class") sued a number
of Louisiana Preferred Provider Organizations (the "PPOs") in
Louisiana state court on state law causes of action approximately
10 years ago. The Class amended its decade-old state lawsuit to
assert newly assigned bad faith insurance claims against Homeland
Insurance Company, an out-of-state defendant. After Homeland
removed the case to federal court, the district court concluded the
claims were barred by an earlier Delaware judgment and dismissed
the suit.
The Class contends that the district court lacked jurisdiction
because a non-diverse defendant remained in the case from the
original lawsuit, and, alternatively, that the court erred in
granting preclusive effect based on the statute of limitations
dismissal in Delaware.
Background
With a long procedural history, the case returns on appeal for the
third time. In 2009, Plaintiff Williams filed a putative class
action in Louisiana state court on behalf of the Class against
three Louisiana defendants, including Med-Comp USA. Med-Comp
operated a PPO network, which contracted with the proposed class of
medical providers for discounted rates. The Class alleged that the
PPOs violated the Louisiana Preferred Provider Organization Act
("PPO Act") by discounting the Class's bills without prior notice.
In 2011, the Class amended its complaint to add claims against
additional non-Louisiana defendants: CorVel Corporation, Homeland
Insurance, and Executive Risk Specialty Insurance.
Executive Risk and Homeland removed the case to federal court,
asserting both ordinary diversity jurisdiction under 28 U.S.C.
Section 1332(a) and jurisdiction under the Class Action Fairness
Act's ("CAFA") minimal diversity jurisdiction under 28 U.S.C.
Section 1332(d)(2). CorVel and the Class sought to remand pursuant
to CAFA's local controversy exception. he district court found the
criteria of the exception satisfied and remanded the case to
Louisiana state court. Homeland appealed, but the Fifth Circuit
affirmed the remand order.
On remand, after receiving class certification, the Class settled
with Executive Risk and all of the Louisiana defendants except
Med-Comp. The Class also prevailed on its direct-action claims
against Homeland in state court—leaving Med-Comp as the sole
remaining defendant.
As part of their settlement agreement, CorVel (Homeland's insured)
assigned to the Class its insurance coverage claims against
Homeland. This assignment underlies the present dispute. The
assignment, however, did not initially include the bad faith claim
CorVel was pursuing against Homeland in Delaware state court.
Although CorVel initially prevailed against Homeland, the Delaware
Supreme Court reversed, holding that the claim was barred by the
statute of limitations. CorVel then assigned the entirety of its
claims against Homeland to the Class.
The Class then amended its still unresolved complaint against
Med-Comp4 in Louisiana state court to assert the bad faith claim
against Homeland that CorVel had just lost on in Delaware. The
litigation then consisted of the Class bringing state law PPO Act
claims as a class against one non-diverse defendant (Med-Comp) and
a state law bad faith insurance claim as an assignee against one
diverse defendant (Homeland).
After being joined again in state court, Homeland removed the case
to federal court on the basis of ordinary diversity jurisdiction
and CAFA minimal diversity jurisdiction. Homeland justified removal
by arguing that Med-Comp's non-diverse Louisiana citizenship could
be disregarded because the PPO Act claims against Med-Comp were
"improperly and egregiously misjoined" with the assignment-based
bad faith claim against Homeland. The Class moved to remand.
Adopting a magistrate judge's report and recommendation, the
district court denied the motion to remand in part and granted it
in part. The district court retained jurisdiction over the bad
faith claim against Homeland and remanded the PPO Act claims
against Med-Comp to state court. Bypassing CAFA, the district court
reasoned that it had ordinary diversity jurisdiction over the case
because Homeland was diverse from the Class and because Med-Comp,
the non-diverse defendant, was improperly joined. Without
addressing the viability of the Class' PPO Act claims against
Med-Comp, the district court reasoned that improper joinder applied
because, in its capacity as CorVel's assignee, the Class lacked a
reasonable basis for recovery against Med-Comp.
The Class moved for leave to appeal under CAFA's interlocutory
appeal mechanism. A prior panel of the Fifth Circuit denied the
Class' motion. It held that the Class did not raise a CAFA issue
because the district court based its jurisdictional holding
entirely on ordinary diversity jurisdiction.
Homeland then moved to dismiss the bad faith claim, which the
Delaware Supreme Court had resolved in its favor based on the
statute of limitations. The district court approved a magistrate
judge's report and recommendation concerning the motion and held
that under the Full Faith and Credit Act, 28 U.S.C. Section 1738,
the court must look to Delaware law for applicable preclusion
principles. Concluding that Delaware would apply claim preclusion
to a case that had been dismissed for failure to file within the
statute of limitations, the court dismissed. The Class timely
appealed.
Discussion
The district court concluded that it had ordinary diversity
jurisdiction under 28 U.S.C. Section 1332(a)(1). The Fifth Circuit
has jurisdiction to evaluate whether the district court was
correct. When analyzing whether the proponent of jurisdiction has
established improper joinder, it examines all factual allegations
and ambiguities of state law in the light most favorable to the
party resisting jurisdiction.
The Class asserts that jurisdiction in federal district court was
improper because Med-Comp's presence destroyed complete diversity
of the parties and barred removal. The Class alternatively contends
that the district court erred in dismissing the bad faith claim on
claim preclusion grounds. Because the Fifth Circuit concludes that
the district court lacked jurisdiction in the case, it does not
reach the merits of the claim preclusion issue.
1. Ordinary Diversity Jurisdiction & Improper Joinder Doctrine
The Fifth Circuit finds that the district court purported to apply
the Fifth Circuit's established improper joinder doctrine --
namely, that a defendant is improperly joined if there is no
possibility of recovery against it -- but its reasoning and
conclusions cannot be squared with the circuit's improper joinder
jurisprudence. Rather, the district court functionally applied the
fraudulent misjoinder doctrine, which the Fifth Circuit has never
adopted and does not adopt now.
First, the Fifth Circuit concludes that Med-Comp was not improperly
joined because the Class has a possibility of recovery against
Med-Comp (a non-diverse defendant) on the PPO Act claims. The
complaint alleged that Med-Comp failed to provide the Class with
benefit cards identifying the applicable contractual discount
applied to the Class' services and failed to give 30 days written
notice of contractual alternative rates of pay. Accordingly, the
allegations in the complaint plausibly stated that Med-Comp
violated the PPO Act. Indeed, the Class secured favorable
settlements on virtually identical claims against other PPOs and
won summary judgment in state court on essentially the same claims
against Homeland. Viewing the Class' allegations in the light most
favorable to it, the Fifth Circuit concludes that the Class'
complaint provides a possibility of recovery against Med-Comp on
its PPO Act claims.
Second, Homeland urges the Fifth Circuit to follow the fraudulent
misjoinder doctrine, which it claims is consistent with its case
law. It is not, the Fifth Circuit holds. It says, that doctrine has
been adopted only by the Eleventh Circuit, citing Tapscott v. MS
Dealer Serv. Corp., 77 F.3d 1353, 1360 (11th Cir. 1996), abrogated
on other grounds by Cohen v. Office Depot, Inc., 204 F.3d 1069
(11th Cir. 2000), and a number of district courts. In Tapscott, the
Eleventh Circuit extended the improper joinder doctrine to
procedural questions concerning party joinder, holding that the
"egregious" misjoinder of parties "constitutes fraudulent joinder"
that permits a defendant to remove to federal court. Homeland
argues that the fifth Circuit should do the same and concludes that
the Class' purportedly unrelated -- but undisputedly viable --
claims against the two defendants justify removal. Although it has
cited Tapscott without disapproving it, the Fifth Circuit has not
adopted it or any other form of the fraudulent misjoinder doctrine,
and it refuses the invitation to do so now.
2. CAFA Minimal Diversity Jurisdiction
Homeland alternatively argues that the district court appropriately
exercised jurisdiction because of CAFA minimal diversity
jurisdiction. This argument, however, is barred by the law of the
case doctrine, the Fifth Circuit finds. Under that doctrine, it
will "follow the prior decisions in a case as the law of that
case." A subsequent panel will reexamine issues of law resolved by
a prior panel opinion only if: "(i) the evidence on a subsequent
trial was substantially different, (ii) controlling authority has
since made a contrary decision of the law applicable to such
issues, or (iii) the decision was clearly erroneous and would work
a manifest injustice."
In the case, a prior panel of the Fifth Circuit concluded that the
district court's remand order was not based on CAFA minimal
diversity jurisdiction. None of the three exceptions to the law of
the case doctrine apply in the case. First, there has been no
subsequent evidence on the point: The district court has not, for
example, reconsidered its order and concluded that it had
jurisdiction under CAFA. Second, there has been no change in
controlling authority. Third, the prior panel's decision was not
clearly erroneous; the district court was clear that its decision
to exercise jurisdiction was premised on ordinary diversity
jurisdiction -- not CAFA. To address CAFA minimal diversity
jurisdiction as an alternative basis for jurisdiction now would
undermine the prior panel's conclusion, and the Fifth Circuit thus
declines to do so.
Conclusion
For the foregoing reasons, the Fifth Circuit reverses the district
court's denial of the Class' motion to remand to state court,
vacates the district court's subsequent orders, and remands to the
district court with instructions to remand the case to state
court.
A full-text copy of the Court's Nov. 30, 2021 Opinion is available
at https://tinyurl.com/2p8pdmpr from Leagle.com.
HYBRID GRADING: Cruz Files ADA Suit in S.D. New York
----------------------------------------------------
A class action lawsuit has been filed against Hybrid Grading
Approach LLC. The case is styled as Shael Cruz, individually, and
on behalf of all others similarly situated v. Hybrid Grading
Approach LLC, Case No. 1:21-cv-10458 (S.D.N.Y., Dec. 7, 2021).
The lawsuit is brought over alleged violation of the Americans with
Disabilities Act.
Hybrid Grading Approach -- https://hybridgrading.com/ -- is a new,
innovative card grading service that uses high-level technology
combined with the opinion of our trusted expertise.[BN]
The Plaintiff is represented by:
Joseph H. Mizrahi, Esq.
MIZRAHI & KROUB LLP
200 Vesey Street, 24th Floor
New York, NY 11201
Phone: (212) 595-6200
Email: jmizrahi@mizrahikroub.com
JOHNSON CONTROLS: Smykla Appeals Securities Suit Dismissal
----------------------------------------------------------
Lead Plaintiffs Peter J. Smykla, et al., filed an appeal from a
court ruling entered in the lawsuit entitled ARLENE D. GUMM, et
al., Plaintiffs v. ALEX A. MOLINAROLI, et al., Defendants, Case No.
16-cv-1093-pp, in the United States District Court for the Eastern
District of Wisconsin.
The Plaintiffs are a group of former shareholders of Johnson
Controls, Inc. (JCI). In August 2016, they brought the class action
suit against JCI, its officers and directors, the Irish corporation
Tyco (with which JCI since has merged to form a new company) and
Merger Sub (the subsidiary through which the merger was
effectuated). The 134-page complaint alleged that JCI and its
leadership, as well as the entities with whom it (at that time)
intended to merge, had (in various combinations) violated federal
and state securities laws and federal tax laws, breached fiduciary
duties to the plaintiffs, been unjustly enriched, committed
state-law conversion, conspired, committed tortious interference
with contract and breach of contract and breached the covenant of
good faith and fair dealing.
In January 2017, the Court denied the Plaintiffs' motion for a
preliminary injunction, after which the Plaintiffs amended the
complaint. The amended complaint raises 12 claims.
The first two claims are based on federal statutes. Count I asserts
that in making the allegedly false and misleading statements in the
S-4, the JCI Defendants violated Section 14(a) of the Securities
and Exchange Act of 1934 (15 U.S.C. Sections 78n(a)), SEC Rule
14a-9 (17 C.F.R. Section 240.14a-9) and SEC Rule 14a-101 (17 C.F.R.
Section 240.14a-101). It also asserts that the individual
Defendants violated Section 20 of the Act as "controlling persons."
In Count II, the Plaintiffs allege that the corporate Defendants
either filed, or were going to file, false Forms 1099 in violation
of the Taxpayer Bill of Rights II (26 U.S.C. Section 7434).
The last 10 claims are state-law claims. In Count III, the
Plaintiffs allege that the individual Defendants violated state law
fiduciary duties of due care, disclosure, good faith, loyalty, and
fair dealing by structuring the merger to benefit the corporation
and harm the Plaintiffs. Count IV alleges that the corporate
defendants aided and abetted the individual Defendants in violating
these duties. Count V alleges that all the defendants were unjustly
enriched by the merger structure and demands restitution. Count VI
alleges that the individual Defendants aided and abetted the unjust
enrichment of JCI and JCplc. Count VII claims that the corporate
defendants wrongfully converted the Plaintiffs' JCI stock through
the merger, and that the individual Defendants aided and abetted
that conversion.
As reported in the Class Action Reporter on November 23, 2021,
Judge Pamela Pepper issued an order:
a. granting the Defendants' motion to dismiss Counts I and II
of the amended complaint;
b. granting the Defendants' motion to dismiss Counts III
through XII of the amended complaint but declining to
exercise supplemental jurisdiction over those claims;
c. granting the Plaintiffs' Request for Leave to File
Supplemental Brief;
d. denying the Plaintiffs' motion to modify the PSLRA stay
of discovery; and
e. denying as moot the Plaintiffs' Rule 7(h) motion for leave
to serve subpoenas on non-parties.
The Plaintiffs seek a review of this order.
The appellate case is captioned as PETER J. SMYKLA, et al.,
Plaintiffs-Appellants v. ALEX A. MOLINAROLI, et al.,
Defendants-Appellees, Case No. 21-3234, in the United States Court
of Appeals for the Seventh Circuit, filed on December 1, 2021.[BN]
Lead Plaintiffs-Appellants PETER J. SMYKLA, et al., are represented
by:
K. Scott Wagner, Esq.
MALLERY S.C.
731 North Jackson Street, Suite 900
Milwaukee, WI 53202-4697
Telephone: (414) 727-6270
E-mail: swagner@mallery.com
- and -
Vernon J. Vander Weide, Esq.
Gregg M. Fishbein, Esq.
Richard A. Lockridge, Esq.
LOCKRIDGE GRINDAL NAUEN PLLP
100 Washington Avenue South, Suite 2200
Minneapolis, MN 55401-2159
Telephone: (612) 596-4026
Facsimile: (612) 339-0981
E-mail: vjvanderweide@locklaw.com
gmfishbein@locklaw.com
ralockridge@locklaw.com
KRAFT HEINZ: Faces Class Action Over MiO Artificial Flavoring
-------------------------------------------------------------
Wilson Fay, writing for Law Street, reports that on Nov. 30, Lisa
Boss, Linda Gunnett and Peggy Tatum filed a class action lawsuit in
the Northern District of Illinois against the Kraft Heinz Company
and Kraft Heinz Foods Company, LLC alleging the companies failed to
properly disclose the use of artificial flavoring in its MiO water
flavoring products.
According to the complaint, the Kraft Heinz Company is a Delaware
corporation co-headquartered in Chicago, Ill. and Pittsburgh, Penn.
The complaint further states that Kraft Heinz Foods is a subsidiary
of the Kraft Heinz Company and a Delaware company headquartered in
Chicago. The complaint purports that both defendants manufacture,
label, advertise, market, distribute, and sell food products
throughout the United States including MiO water flavoring
products.
As reported by the complaint, each of the named defendants are
residents and citizens of California who purchased the defendants'
water flavoring product MiO multiple times for personal and
household consumption.
The complaint alleges that at least 18 of the defendants' MiO
flavored water enhancers contain undisclosed artificial flavors.
Specifically, the complaint alleges that dl-malic acid, a synthetic
petrochemical, is the primary flavoring agent in MiO, and 16 of the
18 MiO products list malic acid as either the first or second
ingredient by weight after water.
The plaintiffs allege that none of the 18 MiO products disclose the
use of artificial flavoring on its front or back labels. Instead,
the complaint states that the MiO product's front labels display
the name of each product's characterizing fruit, berry or tea
flavor. The plaintiffs argue this labeling and the omission of
Federal and state required "Artificial Flavor" or "Artificially
Flavored" label disclosures makes consumers believe that the MiO
products are made exclusively from and flavored only with natural
flavoring.
Due to the defendants' failure to disclose the artificial flavoring
in its MiO products, the plaintiffs allege the defendants are in
violation of the Illinois Consumer Fraud and Deceptive Business
Practices Act, the Consumers Legal Remedies Act, California's False
Advertising Law, Pennsylvania Unfair Trade Practices and Consumer
Protection Law, Unfair Competition Law, and express and implied
warranties. In addition to the above claims the plaintiffs bring
claims of negligent misrepresentation and fraud by omission.
The plaintiffs seek class certification, declaratory judgment,
actual damages or statutory damages of $100 per class member,
disgorgement of any benefits received from the improper and
misleading labeling, punitive damages, restitution, attorneys fees
and interest. The plaintiffs are represented by The Elliott Law
Firm. [GN]
LAWPRACTICECLE LLC: M.D. Florida Refuses to Dismiss Goren ADA Suit
------------------------------------------------------------------
In the lawsuit entitled WILLIAM D. GOREN, for himself and other
similarly situated individuals, Plaintiff v. LAWPRACTICECLE,
L.L.C., a Florida limited liability company, Defendant, Case No.
8:21-cv-1503-WFJ-AAS (M.D. Fla.), the U.S. District Court for the
Middle District of Florida, Tampa Division, issued an order denying
the Defendant's motion to dismiss and motion for sanctions.
The Defendant is a Florida company that offers continuing legal
education ("CLE") courses to attorneys in an exclusively online
format. The Plaintiff is an attorney with a significant hearing
impairment, who received free access to the Defendant's courses in
exchange for providing the Defendant with course content. Because
the Defendant's CLE courses are not equipped with captions or other
auxiliary aids for viewers with hearing impairments, the Plaintiff
states that the courses are not accessible to him and others with
hearing difficulties.
In his class action complaint, the Plaintiff alleges that the
Defendant is violating Title III of the Americans with Disabilities
Act ("ADA"), 42 U.S.C. Sections 12181-12189, by failing to render
its courses accessible to those with hearing impairments.
Urging the Court to dismiss the Plaintiff's complaint, the
Defendant contends that Title III only applies to private entities
that are public accommodations. The Defendant argues that it is not
a public accommodation because it is not covered by the enumerated
list of public accommodations set forth in section 12182(7).
Further, the Defendant points to the recent decision of Gil v.
Winn-Dixie Stores, Inc., 993 F.3d 1266 (11th Cir. 2021), in which
the Eleventh Circuit held that a website with no nexus to a
physical location is not a public accommodation.
On this basis, the Defendant moves to dismiss the Plaintiff's
complaint pursuant to Fed. R. Civ. P. 12(b)(6) for failure to state
a claim for which relief can be granted. It also moves for Rule 11
sanctions, arguing that the Plaintiff's complaint lacks a
sufficient legal or factual basis and was brought for an improper
purpose.
In response, the Plaintiff argues that the Defendant's public
accommodation status is irrelevant to his claim. He contends that
even if the Defendant is not a public accommodation under section
12182(7), it remains subject to the accessibility requirements of
section 12189 as a person that offers examinations or courses for
professional purposes.
In support of his argument that entities subject to section 12189
need not be public accommodations, the Plaintiff cites the
Department of Justice's Title III regulations. These regulations
state that Title III applies to any "public accommodation,
commercial facility, or private entity that offers examinations or
courses" related to licensing for professional purposes. The
Plaintiff also points to two settlement agreements between the
Department of Justice and online-only course providers that failed
to provide auxiliary aids to individuals with hearing impairments,
noting that the Department of Justice only brought claims of
section 12189 violations in those instances.
Moreover, the Court notes that the Department of Justice's ADA
Title III Technical Assistance Manual states that "[p]rivate
entities offering examinations or courses covered by title III are
subject to the requirements discussed in III-4.60002 of this
manual. If the private entity is also a public accommodation or has
responsibility for a commercial facility, it would be subject to
other applicable title III requirements as well."
To survive a Rule 12(b)(6) motion to dismiss for failure to state a
claim, a plaintiff must plead sufficient facts to state a claim
that is plausible on its face. This standard does not require
detailed factual allegations but demands more than an unadorned
accusation. In considering a Rule 12(b)(6) motion to dismiss, a
complaint's factual allegations are accepted as true and construed
in the light most favorable to the plaintiff.
Applying this standard, District Judge William F. Jung holds that
the Defendant's motion to dismiss must be denied. Neither party has
cited a case that addresses whether section 12189 of Title III
applies to a private entity that is not a public accommodation.
In light of the authority cited by the Plaintiff and without any
binding case law on this issue, the Court finds at this stage of
the proceedings that the Plaintiff has alleged a plausible claim
for relief. The Plaintiff has set forth facts that, accepted as
true and viewed in a light most favorable to him, sufficiently
allege a violation of the ADA. Accordingly, neither dismissal nor
Rule 11 sanctions are warranted.
For these reasons, the Court denies the Defendant's motion to
dismiss, and motion for sanctions. The Defendant will file an
answer to the Plaintiff's complaint within fourteen (14) days.
A full-text copy of the Court's Order dated Nov. 29, 2021, is
available at https://tinyurl.com/2p8664zt from Leagle.com.
LIFE EXTENSION: Tavarez-Vargas Files ADA Suit in S.D. New York
--------------------------------------------------------------
A class action lawsuit has been filed against Life Extension
Foundation Buyers Club, Inc. The case is styled as Carmen
Tavarez-Vargas, on behalf of himself and all others similarly
situated v. Life Extension Foundation Buyers Club, Inc., Case No.
1:21-cv-10386 (S.D.N.Y., Dec. 6, 2021).
The lawsuit is brought over alleged violation of the Americans with
Disabilities Act.
The Life Extension Foundation (LEF) --
https://www.lifeextension.com/ -- is a company that claimed goals
of extending the healthy human lifespan by discovering methods to
control aging and eradicate disease.[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
LOGITECH INC: Tavarez-Vargas Files ADA Suit in S.D. New York
------------------------------------------------------------
A class action lawsuit has been filed against Life Logitech Inc.
The case is styled as Carmen Tavarez-Vargas, on behalf of himself
and all others similarly situated v. Logitech Inc., Case No.
1:21-cv-10401 (S.D.N.Y., Dec. 6, 2021).
The lawsuit is brought over alleged violation of the Americans with
Disabilities Act.
Logitech -- https://www.logitech.com/ -- is the first consumer
electronics company to label its products with the amount of
climate-warming carbon used to create them.[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
LOUISIANA: Court Reverses Grant of Bid to Strike in Powell Suit
---------------------------------------------------------------
In the lawsuit titled KATHLEEN POWELL, JEREMY PHILLIPS, BRANDI
PHILLIPS, DONALD DAWSON, BARBARA DAWSON, MICHAEL MONTALBANO, EVELYN
MONTALBANO, MITCHELL KIMBALL, AND KATHERINE KIMBALL v. STATE OF
LOUISIANA THROUGH THE TERREBONNE LEVEE AND CONSERVATION DISTRICT,
TERREBONNE PARISH CONSOLIDATED GOVERNMENT, AND COASTAL PROTECTION
AND RESTORATION AUTHORITY, Case No. 2021 CW 0933 (La. App.), the
Court of Appeal of Louisiana, First Circuit, reversed the district
court's July 7, 2021 judgment granting the motion to strike filed
by Defendant Terrebonne Levee and Conservation District.
According to the Appellate Court's Opinion, a court must deny a
motion to strike if there is any question of fact or law, citing
Nationstar Mortg., LLC v. Schales, 2018-439 (La. App. 3d Cir.
12/12/18), 261 So.3d 912, 918, citing Federal Deposit Ins. Corp. v.
Niblo, 821 F.Supp. 441 (N.D. Tex. 1993).
Matters involving the interpretation of a statute present a
question of law. A decision as to whether the class action
allegations in the Plaintiffs' petitions are appropriate
necessarily requires the district court to determine whether the
Levee Taking Statute applies.
Accordingly, the Appellate Court finds that the district court
abused its discretion in granting Terrebonne Levee and Conservation
District's "Motion to Strike Class Action Allegations," which is
denied.
Under La. Code Civ. P. art. 592, a motion for a demand for
certification of a class action may be stricken only if the
proponent fails to file a timely motion for certification within
the delay allowed and only after a contradictory hearing.
The Appellate Court holds that a motion to strike is not the proper
procedural pleading in this case where the proponent has not yet
answered the petition and the Plaintiffs have not filed a motion to
certify the class.
A full-text copy of the Court's Opinion dated Nov. 29, 2021, is
available at https://tinyurl.com/4uhhhbwt from Leagle.com.
MERRILL LYNCH: New York Court Closes Other Cases in Spoofing Suit
-----------------------------------------------------------------
In the consolidated lawsuit captioned as IN RE MERRILL, BOFA, AND
MORGAN STANLEY SPOOFING LITIGATION, Case Nos. 19-cv-6002 (LJL),
19-cv-6172 (LJL), 19-cv-6488 (LJL) (S.D.N.Y.), the U.S. District
Court for the Southern District of New York directed the Clerk of
Court to update docket numbers 19-cv-6172 and 19-cv-6488 to reflect
that those cases are closed.
The Defendants in this litigation are Merrill Lynch Commodities,
Inc. ("MLCI"), Bank of America Corporation ("BAC"), Morgan Stanley
& Co. LLC ("MSC"), Edward Bases, John Pacilio, and John Doe Nos.
1-18. The Plaintiffs allege that the Defendants unlawfully and
intentionally manipulated the price of contracts for COMEX Gold
Futures, COMEX Silver Futures, et al.
On Sept. 13, 2019, the Honorable Alison J. Nathan consolidated
three related actions bearing the case numbers 19-cv-6002,
19-cv-6172, and 19-cv-6488 into one consolidated action under the
Master File number 19-cv-6002 (the "Consolidation Order"). That
Consolidation Order established a Master Docket for the
consolidated actions, with all entries to be docketed under the
Master File number.
On Feb. 4, 2020, the consolidated action was randomly assigned to
District Judge Lewis J. Liman for all purposes. A notation
indicating this reassignment was included on the Master Docket, as
well as the dockets for case numbers 19-cv-6172 and 19-cv-6488. On
March 4, 2021, the Court issued an Opinion and Order dismissing
with prejudice the First Amended Consolidated Class Action
Complaint; this Opinion and Order was filed on the Master Docket
with a direction to the Clerk of Court to close the case. As a
result, the Master File, 19-cv-6002, was terminated, but there is
no similar notation on the dockets for 19-cv-6172 and 19-cv-6488.
In accordance with the Opinion and Order filed at Dkt. No. 72 and
the Clerk's Judgment filed at Dkt. No. 73 on the Master Docket, the
Clerk of Court is directed to update docket numbers 19-cv-6172 and
19-cv-6488 to reflect that those cases are closed.
A full-text copy of the Court's Order dated Nov. 29, 2021, is
available at https://tinyurl.com/2p86mxa5 from Leagle.com.
MITSUBISHI AUSTRALIA: Bannister Law Sues Over Fuel Economy Claims
-----------------------------------------------------------------
Joshua Dowling, writing for Drive, reports that a class action has
been launched by a law firm against Mitsubishi Australia over fuel
economy claims for approximately 70,000 examples of the Mitsubishi
Triton ute sold between 2016 and 2018.
Bannister Law Class Action has launched the proceedings before
Mitsubishi Australia's appeal against an earlier decision has been
heard in court.
In May this year, a landmark case in the Victorian Supreme Court
effectively set a precedent for government-mandated fuel rating
label figures for more than 15 million new cars sold in Australia
over the past 20 years.
If Mitsubishi Australia loses its appeal, the ruling could have
far-reaching implications for vehicle manufacturers whose customers
cannot match real-world fuel consumption with fuel rating label
estimates.
As Drive reported earlier, two years ago a consumer tribunal
ordered Mitsubishi to refund the $39,500 purchase price of a
Mitsubishi Triton ute because it used significantly more fuel than
"misleading and deceptive" figures published on the vehicle's fuel
consumption rating label.
In June 2019, the Victorian Civil and Administrative Tribunal
(VCAT) ruled against Mitsubishi and in favour of the customer, Mr
Zelko Begovic, who had kept a log of his fuel use over an extended
period.
Mr Begovic demonstrated his vehicle used significantly more than
the official fuel consumption rating label data, which indicated
the 2016 Mitsubishi Triton should be more efficient than his
previous 2008 Mitsubishi Triton.
Tests by a Mitsubishi technician and an independent fuel economy
expert also could not match the estimates on the Mitsubishi
Triton's fuel rating label.
Mitsubishi Australia appealed the VCAT decision and, in May 2021,
the Supreme Court of Victoria also ruled in favour of the customer,
finding the data on the labels "misleading and deceptive".
In handing down its decision in May 2021, the Supreme Court of
Victoria dismissed two other allegations and found Mitsubishi's
fuel economy tests complied with the law and the customer vehicle
at the centre of the dispute was not defective.
At issue is the fact that Mitsubishi Australia -- and all other car
manufacturers who sell vehicles locally -- are required by law to
publish fuel economy estimates derived from laboratory tests.
Such tests were designed so all cars can be assessed in identical
conditions around the world.
The like-for-like data enables car buyers to compare fuel use
across vehicle brands and types.
However, real-world fuel consumption can be higher than laboratory
test results due to driving style, traffic congestion, road
conditions, and vehicle accessories which can detract from a
vehicle's economy and efficiency.
A statement issued on Dec. 2 by Mitsubishi Motors Australia said:
"A law firm has commenced legal proceedings against Mitsubishi
Motors Australia in relation to the fuel consumption testing and
labelling of Triton vehicles with (model) years from 2016 to 2018.
"Mitsubishi Motors believes the case is without foundation, and
will respond accordingly. Importantly, Mitsubishi Motors has full
confidence in the accuracy of its fuel consumption testing, which
is conducted in an accredited laboratory.
"There are very specific government regulations that mandate how
this testing is undertaken and how the result is displayed on the
fuel consumption label of all new vehicles, with which Mitsubishi
fully complies.
"As this is a legal matter, it is not appropriate to comment any
further at this stage."
Of concern to the car industry is the fact that complying with
vehicle regulations has put Mitsubishi Australia - and the
Mitsubishi dealership which sold the vehicle - at risk of being in
breach of Australian Consumer Law.
It means the outcomes of the Mitsubishi Australia appeal - and the
open class action - could have broader implications across the
entire automotive industry, and for fuel rating labels in general.
Industry insiders say the current predicament Mitsubishi Australia
finds itself in is "an unworkable conflict in law."
"This case shows by complying with one law, a vehicle manufacturer
can be accused of being in breach of another law," said the
automotive industry veteran.
Detractors of the fuel economy test laboratory scheme say car
companies have over the years become more skilled at maximising
their lab test results, creating a larger gap to real-world
results.
In Europe, fuel economy laws are being overhauled to be based on a
series of real-world tests. Australia will likely follow once the
regulations are mandated and any anomalies have been ironed out.
Above: An example of a fuel consumption rating label on a Toyota
LandCruiser on showroom display.
By way of background, fuel consumption rating labels became
mandatory in Australia in 2001 and were designed to provide
consumers like-for-like fuel use comparisons across various
vehicles.
Since 2001, more than 15 million cars sold in Australia have been
equipped with the labels which are displayed on a vehicle's
windscreen at their point of sale.
Fuel rating labels are still mandatory on all new cars sold today,
although they can be removed once the car has been delivered to the
customer.
However, fuel consumption rating labels do not use the word
"estimate" to describe figures for city, highway, and average use.
Instead, in fine print the label warns: "Actual fuel consumption .
. . depends on factors such as traffic conditions, vehicle
condition and how you drive."
Fuel rating label figures are derived from laboratory tests
(pictured below) so they can be repeated in identical conditions in
different countries, rather than based on real-world driving
scenarios.
Over time, however, car companies have developed techniques to
optimise fuel consumption results during the laboratory tests.
Independent analysis has shown the gap between fuel rating label
figures and real-world driving figures has widened over the past
two decades.
The difference between real-world fuel consumption and rating label
figures was about 10 per cent in 2002, grew to 35 per cent in 2014,
and in 2017 was projected to be 49 per cent higher than published
claims by 2020, as manufacturers found ways to optimise laboratory
tests.
In Europe, the automotive industry is in the process of moving to
real-world driving fuel consumption data, which requires a portable
laboratory to be fitted to a test vehicle while it is being driven
(pictured above and below).
Australia still uses laboratory testing protocols mandated since
July 2003, and there are no current plans to move to more accurate
fuel economy rating labels.
"If this Supreme Court ruling is allowed to stand, then the
Australian government will need to update its fuel economy test
procedures," said an automotive industry insider. "The car makers
have done nothing wrong, other than conduct laboratory tests
according to the current regulations."
In 2017, the Australia Automobile Association (AAA) found
real-world testing among a range of new cars were using "up to 59
per cent more fuel and emitting up to seven times the legal limit
of some noxious emissions than indicated by laboratory-only
tests".
The AAA found real-world consumption was, on average, 21 per cent
higher than the rating label claim figures on the 30 popular cars
tested as part of the preliminary study.
At the time, AAA chief executive Michael Bradley said: "It's
becoming clear . . . the gap between laboratory results and
real-world results is widening, meaning consumers and the
environment are increasingly being ripped off."
The two Mitsubishi Triton utes at the centre of Australia's
landmark legal dispute - the customer's original 2008 model and the
new 2016 model he bought as a replacement vehicle - displayed
consumption rating label figures derived from laboratory tests, as
with all new cars sold over the same period and to the present
day.
Mr Begovic's 2008 Mitsubishi Triton fuel rating label displayed an
estimated consumption rate of 7.8 litres per 100km in highway use,
while his 2016 Mitsubishi Triton fuel rating label displayed an
estimated consumption rate of 6.8 litres per 100km in highway use,
a 12.8 per cent decrease.
However, Mr Begovic found, in his experience, his 2016 Mitsubishi
Triton delivered a 24 per cent increase in real-world fuel
consumption compared to his 2008 Mitsubishi Triton.
Mr Begovic produced figures that showed his 2016 Mitsubishi Triton
used an average of 12.44 litres per 100km in his driving routine,
versus about 10 litres per 100km for the same driving routine in
his 2008 Mitsubishi Triton.
Given the reduction in fuel consumption estimates on the 2008
versus 2016 fuel rating labels, Mr Begovic had expected his 2016
Mitsubishi Triton to use about 8.5 litres per 100km in his driving
routine.
Further, the 2016 Mitsubishi Triton's real-world fuel use of 12.44
litres per 100km compared to the 6.8L/100km claim for open road
driving, the 9.0L/100km claim for urban driving, and the 7.6L/100km
claim for a combination of urban and highway driving.
The Supreme Court of Victoria upheld the earlier finding of the
Victorian consumer tribunal that the figures on the 2016 Mitsubishi
Triton's fuel rating label -- affixed to the vehicle at the point
of sale -- were "misleading and deceptive".
The Supreme Court heard Mr Begovic purchased the 2016 Mitsubishi
Triton in part due to its reduction in the claimed fuel consumption
versus his 2008 Mitsubishi Triton, and he had relied on the data
published on the fuel rating labels when deciding to buy the
vehicle.
In addition to fuel rating labels, historical fuel economy data
claims are also published on the Australian government's Green
Vehicle Guide website.
VCAT had earlier found Mr Begovic's 2016 Mitsubishi Triton "used
more fuel" than the 2008 Mitsubishi Triton "in the same driving
conditions" -- even though the labels claimed that the 2016 model
was "more fuel-efficient than the 2008 model".
Supreme Court of Victoria judge Tim Ginnane found the customer's
2016 Mitsubishi Triton was not defective and Mitsubishi had
complied with the law and had not manipulated fuel economy
laboratory tests, dismissing two of the three original judgments
made by VCAT.
However, Justice Ginnane upheld VCAT's verdict that the information
on the 2016 Mitsubishi Triton fuel economy label was "misleading
and deceptive".
Justice Ginnane said that because VCAT "erred in law" on two of the
three allegations, "its orders terminating the contract and
ordering the refunding of the purchase price could not be made".
Mitsubishi Australia says it is considering its next course of
action, whether to launch another appeal, or accept the findings.
A statement issued by Mitsubishi Motors Australia said the company
"takes its obligation to comply with the law very seriously".
"We were pleased to see that there is no suggestion that Mitsubishi
Motors did anything other than to comply with the law when
conducting the Government mandated fuel consumption tests it
depends upon to publish like-for-like consumer comparison data on
the Government mandated-fuel consumption labels," the Mitsubishi
statement said.
"We are taking further advice regarding our options (in this
matter). In light of that, it is not appropriate for Mitsubishi
Motors Australia Limited to comment on this matter further."
In the original VCAT hearing two years ago, Mitsubishi argued Mr
Begovic had fitted accessories to the vehicle such as a canopy, a
"shade cloth style mesh to the front grille", and switched to
all-terrain tyres rather than highway tyres, which Mitsubishi
claimed could have an impact on fuel consumption.
VCAT found Mr Begovic -- who had collected 19 fuel receipts and
kept a log book from January 2017 to May 2018 -- "presented as an
honest witness who gave his evidence unguardedly and without
exaggeration".
The VCAT hearing also heard evidence from independent vehicle
emissions expert, Andrea Winkelmann, who at the time had 25 years'
experience as an automotive engineer, having previously worked for
Ford and Holden.
Ms Winkelmann at the time worked for independent vehicle emissions
firm ABMARC in Australia -- which specialises in real-world fuel
economy tests and assessed 30 popular cars on behalf of the AAA in
2016 and 2017.
According to tests by ABMARC, Mr Begovic's Mitsubishi Triton used
26.6 per cent more fuel than claimed on the rating label in the
"combined" cycle, 17.8 per cent more fuel than claimed on the
rating label in the "urban" test, and 36.8 per cent more fuel than
claimed on the rating label in the "extra-urban" test (also known
as highway driving).
Ms Winkelmann described the anomalies between real-world
consumption of Mr Begovic's 2016 Mitsubishi Triton and the fuel
consumption rating label estimates as "unusual and excessive".
In back-to-back tests ordered by VCAT in August 2018, a Mitsubishi
technician also could not match the Mitsubishi Triton's fuel
consumption rating label figure.
Court documents reveal Mr Begovic drove a pre-determined route for
two of the three tests, and the Mitsubishi technician completed the
route in Mr Begovic's car once on the same route.
The vehicle returned a consumption average of 8.5L/100km from all
three tests, which was higher than the 6.8L/100km estimate on the
rating label for highway use, higher than the 7.6L/100km estimate
on the rating label for city and highway use, but less than the
9.0L/100km estimate on the rating label for urban-only use.
For these tests, Mr Begovic's 2016 Mitsubishi Triton was refitted
with original highway-terrain tyres rather than the all-terrain
tyres that had been fitted by Mr Begovic.
Independent testing has shown off-road tyres can affect fuel
consumption by up to 20 per cent. However, even with the original
tyres, real-world testing showed the 2016 Mitsubishi Triton used
more fuel than claimed on the consumption rating label.
The official fuel rating label figures for the most recent update
to the Mitsubishi Triton - released in 2019 after Mr Begovic
commenced legal action -- were higher than the official fuel rating
label figures for his 2016 Mitsubishi Triton.
Mitsubishi says the increased fuel consumption rating label figures
for the subsequent 2019 Mitsubishi Triton update (pictured below)
were due to additional weight and a change in the aerodynamics of
the vehicle's bodywork, which are used to determine the parameters
for the laboratory tests. [GN]
MR. CAR WASH: Faces Lao Suit Over Failure to Pay Proper Wages
-------------------------------------------------------------
JOSE LAO, individually and on behalf of all others similarly
situated, Plaintiff v. MR. CAR WASH OF EAST ORANGE, INC., MR. CAR
WASH OF IRVINGTON, INC., AND DAVID "DOE" [LAST NAME UNKNOWN],
Defendants, Case No. 2:21-cv-20291 (D.N.J., December 1, 2021) is a
class action seeking equitable and legal relief for the Defendants'
failure to pay minimum and overtime compensation and to timely pay
wages in violation of the Fair Labor Standards Act, the New Jersey
Wage and Hour Law and the New Jersey Wage Payment Law.
The Plaintiff was employed by the Defendants as a car wash
assistant from September 2015 until June 7, 2020, and then again
from September 2020 until November 2020.
The Defendants are car wash operators in New Jersey.[BN]
The Plaintiff is represented by:
Katherine Morales, Esq.
KATZ MELINGER PLLC
280 Madison Avenue, Suite 600
New York, NY 10016
Telephone: (212) 460-0047
Facsimile: (212) 428-6811
E-mail: kymorales@katzmelinger.com
NBT BANK: Seeks Court Approval of $5.7MM Overdraft Fee Settlement
-----------------------------------------------------------------
Katryna Perera, writing for Law30, reports that a proposed class of
NBT Bank NA customers asked a New York federal judge on Nov. 30 for
preliminary approval of a $5.7 million settlement that will end a
suit accusing the bank of wrongfully applying overdraft fees for
bank account transactions. [GN]
NOOSPHERE VENTURES: Tavarez-Vargas Files ADA Suit in S.D. New York
------------------------------------------------------------------
A class action lawsuit has been filed against Noosphere Ventures
USA, Inc. The case is styled as Carmen Tavarez-Vargas, on behalf of
himself and all others similarly situated v. Noosphere Ventures
USA, Inc., Case No. 1:21-cv-10390 (S.D.N.Y., Dec. 6, 2021).
The lawsuit is brought over alleged violation of the Americans with
Disabilities Act.
Noosphere -- https://noosphereventures.com/ -- is an international
asset management firm, with the strategic vision and capital to
transform high-potential companies into definitive market
leaders.[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
NORTHSHORE UNIVERSITY: Prelim. Class Cert. in Jane Does Suit Denied
-------------------------------------------------------------------
In the case, JANE DOE 1, JANE DOE 2, JANE DOE 3, JANE DOE 4, JANE
DOE 5, JANE DOE 6, JANE DOE 7, JANE DOE 8, JANE DOE 9, JANE DOE 10,
JANE DOE 11, JANE DOE 12, DOE 13, JANE DOE 14, Plaintiffs v.
NORTHSHORE UNIVERSITY HEALTH SYSTEM, Defendant, Case No.
21-cv-05683 (N.D. Ill.), Judge John F. Kness of the U.S. District
Court for the Northern District of Illinois, Eastern Division,
issued a Memorandum Opinion and Order:
a. denying the Plaintiffs' motion for a preliminary injunction
and for preliminary class certification; and
b. granting the Plaintiffs leave to proceed pseudonymously.
Background
It is a regrettable fact that the COVID-19 pandemic continues to
roil nearly all facets of life in the United States and across the
globe. Along with the immense toll in lives lost, persistent
sickness, and material and financial costs, efforts to ameliorate
the pandemic have generated fresh fissures along familiar fault
lines. A recent source of COVID-19 is the new mandates -- public
and private -- that certain people receive one of the approved
COVID-19 vaccines. Such mandates have, perhaps unavoidably, led to
collisions between the interests of public health, personal
liberty, and public policy.
The case presents a tangible example of those colliding interests.
A group of hospital workers face termination for their refusal, on
religious grounds, to be vaccinated against the COVID-19 disease.
The Plaintiffs are employed by Defendant NorthShore, which is a
conglomerate of local hospitals. They challenge NorthShore's policy
requiring all of its employees to receive one of the available
coronavirus vaccines in an effort to stem COVID-19 cases.
NorthShore's hospitals have been on the front lines fighting the
pandemic in the Chicagoland area. Its employees, including the
Plaintiffs, have worked tirelessly to ameliorate the toll wrought
by the COVID-19 pandemic. At the close of the first year of the
pandemic, three COVID-19 vaccines became widely available to the
American public. NorthShore determined that, for the health and
safety of its staff, visitors, and patients, it would require its
employees to be vaccinated.
NorthShore's vaccine requirement led to the case now before the
Court. THe Plaintiffs registered religious objections to receiving
any of the available COVID-19 vaccines because, the Plaintiffs say,
the vaccines were developed using cell lines derived from aborted
fetuses. The Plaintiffs offered NorthShore an alternative: In lieu
of becoming vaccinated, the Plaintiffs would instead submit to
full-time masking and weekly COVID-19 testing. But NorthShore
insisted that the Plaintiffs either get vaccinated or find work
elsewhere.
The Plaintiffs now seek a judicial order preventing NorthShore from
firing them based on their unvaccinated status. According to them,
NorthShore's policy violates both Title VII of the Civil Rights Act
of 1964, as well as the Illinois Health Care Right of Conscience
Act.
At issue in the Opinion is the Plaintiffs' request for a
preliminary injunction preserving the status quo during the
pendency of the case. Also at issue is the Plaintiffs' request for
preliminary class-wide treatment and to litigate using pseudonyms.
Discussion
Striving to save lives while still respecting fundamental rights --
a goal professed by both sides -- is, of course, both worthy and
challenging. But efforts to harmonize those twin aims of safety and
liberty must always align with binding legal precepts. Judge Kness
opines that although the Plaintiffs have demonstrated some
likelihood of success on the merits of their Title VII claim --
employers are required to make reasonable accommodations of
religious practices and views -- they cannot meet the additional
prerequisites for preliminary injunctive relief of showing
irreparable harm.
Put another way, if the Plaintiffs succeed at trial, their damages
can be fully compensated through the traditional legal remedy of a
damages award. Because that remedy is available, the Court cannot
lawfully enter a preliminary injunction. Accordingly, although the
Court will allow the Plaintiffs to remain pseudonymous, Judge Kness
will deny the Plaintiffs' motions for a preliminary injunction and
for preliminary class-wide treatment.
Conclusion
Judge Kness concludes that case involves a subject -- mandatory
vaccinations -- that is at the forefront of a national debate so
vituperative at times that it has led the Plaintiffs to seek to
conceal their own names. This debate becomes even more fraught
when, as in the case, core interests of public health, religious
convictions, and employers' rights collide. In resolving the
Plaintiffs' request for a preliminary injunction, however, the
Court need not opine on the value of COVID-19 vaccines, the
theological bases of the Plaintiffs' views, or the soundness of
NorthShore's management practices. Those are matters to be
addressed elsewhere. Rather, Court's sole duty at this stage is to
consider the threshold question whether the Plaintiffs have met the
legal standard for entry of a preliminary injunction. Judge Kness
finds that they have not.
Therefore, the Plaintiffs' motion for a preliminary injunction and
for preliminary class certification is denied. The Plaintiffs are
granted leave to proceed pseudonymously. So ordered in No.
21-cv-05683.
A full-text copy of the Court's Nov. 30, 2021 Memorandum Opinion &
Order is available at https://tinyurl.com/tuhcyb36 from
Leagle.com.
NOVAVAX INC: Faces Class Action Over Securities Violations
----------------------------------------------------------
Shareholder rights law firm Robbins LLP informs investors that a
shareholder filed a class action on behalf of all persons and
entities that purchased or otherwise acquired Novavax, Inc.
(NASDAQ: NVAX) securities between March 2, 2021 and October 19,
2021, for violations of the Securities Exchange Act of 1934.
Novavax is a biotechnology company that focuses on the discovery,
development, and commercialization of vaccines to prevent serious
infectious diseases. The Company's product candidates include
NVX-CoV2373, which is in development as a vaccine for COVID-19.
Contact us if you would like more information about the alleged
wrongdoing by Novavax, Inc.
Novavax, Inc. (NVAX) Misled Shareholders Regarding Approval of its
COVID Vaccine
According to the complaint, prior to March 2, 2021, Novavax
announced it planned to complete Emergency Use Authorization
("EUA") submissions for NVX-CoV2373 with the U.S. Food and Drug
Commission in the second quarter of 2021. Further, during the
relevant period, defendants made materially false and misleading
statements and failed to disclose that: (i) Novavax overstated its
manufacturing capabilities and downplayed manufacturing issues that
would impact its approval timeline for NVX-CoV2373; (ii) as a
result, Novavax was unlikely to meet its anticipated EUA regulatory
timelines for NVX-CoV2373; and (iii) therefore, the Company
overstated the regulatory and commercial prospects for
NVX-CoV2373.
On May 10, 2021, Novavax confirmed it was unlikely to seek EUA for
NVX-CoV2373 in the U.S. until July 2021 at the earliest, the
Company's third quarter of 2021. Following this disclosure,
Novavax's stock price fell over $37.00 over the next two trading
days. Then, on August 5, 2021, Novavax reported it expected to file
for NVX-CoV2373's EUA in the fourth quarter of 2021. On this news,
the Company's stock price fell $46.31 per share, or 19.16%, to
close at $189.89 per share on August 6, 2021. Finally, on October
19, 2021, Politico published an article reporting that Novavax
"faces significant hurdles in proving it can manufacture a shot
that meets regulators' quality standards" with respect to
NVX-CoV2737. The article cited anonymous sources as stating that
Novavax's "issues are more concerning than previously understood"
and that the Company could take until the end of 2022 to resolve
its manufacturing issues and win regulatory authorizations and
approvals. On this news, Novavax's stock price fell $23.69 per
share, to close at $136.86 per share on October 20, 2021.
Novavax, Inc. (NVAX) shareholders have legal options. All
representation is on a contingency fee basis. Shareholders pay no
fees or expenses.
Contact us to learn more:
Aaron Dumas
(800) 350-6003
adumas@robbinsllp.com
Shareholder Information Form
About Robbins LLP: A recognized leader in shareholder rights
litigation, the attorneys and staff of Robbins LLP have been
dedicated to helping shareholders recover losses, improve corporate
governance structures, and hold company executives accountable for
their wrongdoing since 2002. To be notified if a class action
against Novavax, Inc. settles or to receive free alerts when
corporate executives engage in wrongdoing, sign up for Stock Watch
today.
Attorney Advertising. Past results do not guarantee a similar
outcome.
Contacts:
Aaron Dumas
Robbins LLP
5040 Shoreham Place
San Diego, CA 92122
adumas@robbinsllp.com
(800) 350-6003
www.robbinsllp.com [GN]
ODYSSEY LANDSCAPING: Hernandez Files Suit in Cal. Super. Ct.
------------------------------------------------------------
A class action lawsuit has been filed against Odyssey Landscaping
Company Inc. The case is styled as Martin Javier Hernandez, Vicente
Serrano, individuals on behalf of themselves and all others
similarly situated v. Odyssey Landscaping Company Inc., a
California Corporation, Case No. STK-CV-UOE-2021-0011109 (Cal.
Super. Ct., San Joaquin Cty., Dec. 7, 2021).
The case type is stated as "Unlimited Civil Other Employment."
Odyssey Landscape Company, Inc. (OLC) --
http://www.odysseylandscape.com/-- provides services in landscape
maintenance, design and construction for custom residential
homes.[BN]
The Plaintiffs are represented by:
Jonathan Melmed, Esq.
MELMED LAW GROUP P.C.
1801 Century Park E., Ste. 850
Los Angeles, CA 90067-2346
Phone: 310-824-3828
Fax: 310-862-6851
Email: jm@melmedlaw.com
OKA PRODUCTS: Carrano Files Suit in E.D. New York
-------------------------------------------------
A class action lawsuit has been filed against Oka Products, LLC.
The case is styled as Theresa Carrano, individually and on behalf
of all others similarly situated v. Oka Products, LLC, Case No.
2:21-cv-06730-ARR-ST (E.D.N.Y., Dec. 4, 2021).
The nature of suit is stated as Fraud or Truth-In-Lending.
OKA Products -- https://okaproductsofficial.com/2018/ -- is an
american company with many years of manufacturing, marketing and
distribution experience in the food and beverage industry.[BN]
The Plaintiff is represented by:
Spencer I. Sheehan, Esq.
SHEEHAN & ASSOCIATES, P.C.
60 Cuttermill Road, Ste. 409
Great Neck, NY 11021
Phone: (516) 260-7080
Fax: (516) 234-7800
Email: spencer@spencersheehan.com
OLE MEXICAN FOODS: Hardy Files Suit in W.D. New York
----------------------------------------------------
A class action lawsuit has been filed against Ole Mexican Foods,
Inc. The case is styled as Ryan Hardy, individually and on behalf
of all others similarly situated v. Ole Mexican Foods, Inc., Case
No. 1:21-cv-01261 (W.D.N.Y., Dec. 3, 2021).
The nature of suit is stated as Other Fraud.
Ole Mexican Foods -- https://olemex.com/ -- makes Mexican-American
foods, inducing tortillas and taco shells, under brand names La
Banderita, La Centroamericana, Ole, and Verole.[BN]
The Plaintiff is represented by:
Innessa Melamed Huot, Esq.
FARUQI & FARUQI, LLP
685 Third Avenue, 26th Floor
New York, NY 10017
Phone: (212) 983-9330
Fax: (212) 983-9331
Email: ihuot@faruqilaw.com
PACIFIC COAST: Sanchez Files Suit in Cal. Super. Ct.
----------------------------------------------------
A class action lawsuit has been filed against Pacific Coast
Producers. The case is styled as Elizabet Sanchez, individually and
on behalf of all other similarly situated employees v. Pacific
Coast Producers, a California Corporation, Case No.
STK-CV-UOE-2021-0011106 (Cal. Super. Ct., San Joaquin Cty., Dec. 7,
2021).
The case type is stated as "Unlimited Civil Other Employment."
Pacific Coast Producers -- https://pacificcoastproducers.com/ -- is
an Agricultural Coop in Central and Northern California
specializing in canning fruits and tomatoes for Private
Brands.[BN]
The Plaintiff is represented by:
Galen T. Shimoda, Esq.
SHIMODA LAW CORP.
9401 E Stockton Blvd., Ste. 120
Elk Grove, CA 95624-5050
Phone: 916-525-0716
Fax: 916-760-3733
Email: attorney@shimodalaw.com
PELOTON INTERACTIVE: Bernstein Liebhard Reminds of Jan. 18 Deadline
-------------------------------------------------------------------
Bernstein Liebhard, a nationally acclaimed investor rights law
firm, reminds investors of the deadline to file a lead plaintiff
motion no later than January 18, 2022 in a securities class action
lawsuit that has been filed on behalf of investors who purchased or
acquired the common stock of Peloton Interactive, Inc. ("Peloton")
(NASDAQ: PTON) between December 9, 2020 and November 4, 2021,
inclusive (the "Class Period"). The lawsuit was filed in the United
States District Court for the Southern District of New York and
alleges violations of the Securities Exchange Act of 1934 and SEC
Rule 10b-5.
If you purchased or otherwise acquired Peloton common stock, and/or
would like to discuss your legal rights and options, please visit
Peloton Interactive Inc. Shareholder Class Action Lawsuit or
contact Joe Seidman toll free at (877) 779-1414 or
seidman@bernlieb.com.
Peloton is a fitness-equipment and media company, whose main
products are internet-connected stationary bicycles and treadmills
that enable monthly subscribers to remotely participate in classes
via streaming media.
For most of 2020 and 2021, the COVID-19 pandemic was a boon for
Peloton. Because stay-at-home orders and business closures kept
many people out of the gym, the demand for in-home exercise options
increased dramatically. Throughout the pandemic, including in the
months leading up to the Class Period, Peloton experienced
unprecedented demand for its products and services.
According to the complaint, Defendants repeatedly represented that
the Company's positive results and growth would continue after the
pandemic. Defendants also allegedly made false and misleading
statements about the amount of inventory that Peloton held, and
touted the Company's ability to keep its inventory levels in line
with sustained demand.
On August 26, 2021, the Company disclosed that it had identified a
material weakness in its internal controls over financial reporting
"with respect to identification and valuation of inventory."
However, at the same time that Peloton disclosed the weakness in
its internal controls, Defendants continued to misrepresent and
conceal the unsustainable nature of Peloton's financial results and
growth post-COVID, issuing guidance of $5.4 billion of total
revenue for fiscal year 2022, representing 34% year-over-year
growth.
As a result of these disclosures, the price of Peloton common stock
declined by $9.75, or 8.5%, from a closing price of $114.09 per
share on August 26, 2021 to a closing price of $104.34 per share on
August 27, 2021.
Then, on November 4, 2021, the Company announced second quarter
financial results that fell far short of expectations and reduced
its total revenue guidance for fiscal 2022 by a staggering $1
billion. Peloton further disclosed that inventory had skyrocketed
to $1.27 billion, 91% of which comprised "finished products" that
the Company still held. On Peloton's November 4 earnings conference
call with investors, Defendants admitted that Peloton overestimated
demand and underestimated the impact of gyms reopening as the
pandemic subsides. As a result of these disclosures, Peloton's
stock price declined by $30.42 per share, or over 35%, from a
closing price of $86.06 per share on November 4, 2021, to a closing
price of $43.68 per share on November 5, 2021.
If you wish to serve as lead plaintiff, you must move the Court no
later than January 18, 2022. A lead plaintiff is a representative
party acting on behalf of other class members in directing the
litigation. Your ability to share in any recovery doesn't require
that you serve as lead plaintiff. If you choose to take no action,
you may remain an absent class member.
If you purchased or otherwise acquired Peloton common stock, and/or
would like to discuss your legal rights and options please visit
https://www.bernlieb.com/cases/pelotoninteractiveinc-pton-shareholder-lawsuit-class-action-fraud-stock-458/
or contact Joe Seidman toll free at (877) 779-1414 or
seidman@bernlieb.com.
Since 1993, Bernstein Liebhard LLP has recovered over $3.5 billion
for its clients. In addition to representing individual investors,
the Firm has been retained by some of the largest public and
private pension funds in the country to monitor their assets and
pursue litigation on their behalf. As a result of its success
litigating hundreds of lawsuits and class actions, the Firm has
been named to The National Law Journal's "Plaintiffs' Hot List"
thirteen times and listed in The Legal 500 for ten consecutive
years.
Contact Information:
Joe Seidman
Bernstein Liebhard LLP
https://www.bernlieb.com
(877) 779-1414
seidman@bernlieb.com [GN]
PELOTON INTERACTIVE: Bronstein Gewirtz Reminds of Jan. 18 Deadline
------------------------------------------------------------------
Bronstein, Gewirtz & Grossman, LLC notifies investors that a class
action lawsuit has been filed against Peloton Interactive, Inc.
("Peloton" or the "Company") (NASDAQ:PTON) and certain of its
officers, on behalf of shareholders who purchased or otherwise
acquired Peloton between December 9, 2020, and November 4, 2021,
inclusive (the "Class Period"). Such investors are encouraged to
join this case by visiting the firm's site: www.bgandg.com/pton.
This class action seeks to recover damages against Defendants for
alleged violations of the federal securities laws under the
Securities Exchange Act of 1934.
The complaint alleges that throughout the Class Period, Defendants
made false and/or misleading statements and/or failed to disclose
that:(1) Defendants repeatedly, falsely assured investors that
Peloton's recent success was not primarily due to COVID-related
increased demand, but rather that the Company's growth and
financial results were sustainable and would continue post-COVID;
(2) Defendants' statements represented specific inventory amounts
on hand, and that those inventory levels aligned with and reflected
customer demand. In truth, however, and as the Company admitted,
Peloton had a material weakness in its internal controls over
financial reporting that left Defendants unable to accurately
ascertain inventory levels; (3) Defendants accordingly were unable
to align supply and demand, and by the end of the Class Period, the
Company had a massive growth in inventory that far exceeded
customer demand; and (4) as a result, Defendants' statements about
the Company's inventory, and what inventory levels reflected
regarding demand, were materially false and misleading and/or
lacked a reasonable basis.
A class action lawsuit has already been filed. If you wish to
review a copy of the Complaint you can visit the firm's site:
www.bgandg.com/pton or you may contact Peretz Bronstein, Esq. or
his Investor Relations Analyst, Yael Nathanson of Bronstein,
Gewirtz & Grossman, LLC at 212-697-6484. If you suffered a loss in
Peloton you have until January 18, 2022, to request that the Court
appoint you as lead plaintiff. Your ability to share in any
recovery doesn't require that you serve as a lead plaintiff.
Bronstein, Gewirtz & Grossman, LLC is a corporate litigation
boutique. Our primary expertise is the aggressive pursuit of
litigation claims on behalf of our clients. In addition to
representing institutions and other investor plaintiffs in class
action security litigation, the firm's expertise includes general
corporate and commercial litigation, as well as securities
arbitration. Attorney advertising. Prior results do not guarantee
similar outcomes.
Contact:
Bronstein, Gewirtz & Grossman, LLC
Peretz Bronstein or Yael Nathanson
212-697-6484 | info@bgandg.com [GN]
PELOTON INTERACTIVE: ClaimsFiler Reminds of January 18 Deadline
---------------------------------------------------------------
ClaimsFiler, a FREE shareholder information service, reminds
investors with losses in excess of $100,000 that they have until
January 18, 2022 to file lead plaintiff applications in a
securities class action lawsuit against Peloton Interactive, Inc.
(NASDAQ:PTON), if they purchased the Company's shares between
December 9, 2020 and November 4, 2021, inclusive (the "Class
Period"). This action is pending in the United States District
Court for the Southern District of New York.
Peloton investors should visit us at
https://claimsfiler.com/cases/nasdaq-pton-1/ or call toll-free
(844) 367-9658. Lawyers at Kahn Swick & Foti, LLC are available to
discuss your legal options.
About the Lawsuit
Peloton and certain of its executives are charged with failing to
disclose material information during the Class Period, violating
federal securities laws.
On November 4, 2021, the Company disclosed a shocking cut to its
full-year revenue forecast by up to $1 billion from a prior
forecast of $5.4 billion to a range of $4.4 to $4.8 billion due to
deteriorating demand for its home fitness equipment as customers
were increasingly free to pursue other fitness options outside the
home. Further, the Company disclosed that inventory totaled $1.27
billion, a 35% increase over the prior quarter, 91% of which were
"finished products" still held by the Company.
On this news, shares of Peloton plummeted $30.42 per share, or over
35%, from a closing price of $86.06 per share on November 4, 2021,
to a closing price of $43.68 per share on November 5, 2021.
The case is City of Hialeah Employees' Retirement System v. Peloton
Interactive, Inc., et al., 21-cv-9582.
About ClaimsFiler
ClaimsFiler has a single mission: to serve as the information
source to help retail investors recover their share of billions of
dollars from securities class action settlements. At
ClaimsFiler.com, investors can: (1) register for free to gain
access to information and settlement websites for various
securities class action cases so they can timely submit their own
claims; (2) upload their portfolio transactional data to be
notified about relevant securities cases in which they may have a
financial interest; and (3) submit inquiries to the Kahn Swick &
Foti, LLC law firm for free case evaluations.
To learn more about ClaimsFiler, visit www.claimsfiler.com. [GN]
PFIZER INC: Faces Another Suit Over Toxic Chemicals in Chantix
--------------------------------------------------------------
Irvin Jackson, writing for About Lawsuits, reports that in response
to problems with toxic chemicals in Chantix, Pfizer faces another
class action lawsuit over the recalled stop-smoking drug, which was
distributed with nitrosamine impurities that may increase the risk
of cancer.
The complaint (PDF) was filed Daniel Spence and Carita Thompson in
the U.S. District Court for the Northern District of Illinois on
November 24, joining a growing number of claims filed in the wake
of several Chantix recalls issued in recent months, seeking class
action status to pursue damages for consumers who paid for the
expensive smoking cessation drug, which was adulterated and unfit
for its intended purpose.
Chantix (varenicline) was introduced by Pfizer in 2006, as a
prescription medication designed to help people quit smoking.
However, the manufacturer halted Chantix distribution in June, when
it was discovered pills may contain dangerous levels of
nitrosamines, which are believed to be a byproduct of the drug
manufacturing process and may expose users to a risk of cancer.
The lawsuit points out that, since its launch, the cost of Chantix
climbed dramatically. What started out as $113.98 for a 30-day
supply, eventually climbed to nearly $500 for the same amount by
2018. That year, Pfizer raked in just under $1 billion in Chantix
sales. However, the lawsuit notes that because of the presence of
nitrosamines, consumers were not buying Chantix as advertised, but
instead were buying a varenicline-containing drug (VCD) which was
never approved by the FDA.
Over the last few years, several drugs, such as Zantac, valsartan
and metformin, have faced similar recalls over toxic chemicals that
never should have been in the pills, primarily involving the
presence of a nitrosamine known as N-Nitrosodimethylamine (NDMA).
As a result, thousands of Zantac lawsuits, valsartan lawsuits and
metformin lawsuits are now being pursued against those drug
makers.
Pfizer first disclosed the Chantix problems in June, after halting
distribution for the drug and recalling one lot in Canada. Weeks
later, the Chantix recall was expanded to include 12 batches of the
medication sold in the United States in July, and the drug maker
announced that it was recalling another four lots of Chantix in
August 2021.
In September, Pfizer issued a press release announcing a complete
Chantix recall for all lots of both its 0.5 mg and 1 mg tablets,
all due to the same problem first discovered in June 2021, with
high levels of the cancer-causing chemicals in certain pills, at
levels higher than deemed acceptable by the FDA.
"Upon information and belief, N-nitroso-varenicline contamination
of Defendant's VCDs dates back many years, at which point Defendant
had actual and/or constructive notice of the contamination," the
lawsuit states. "Ironically, the Defendant's wrongful acts resulted
in persons who sought to use smoking products less receiving a
Chantix pill that contained a carcinogen."
Pfizer indicates it has received no reports of adverse events
linked to the toxic chemicals in Chantix, but exposure to
nitrosamine impurities in other pills has been linked to reports of
cancer as the chemicals move through the body.
This latest joins several others in seeking nationwide class action
status for anyone who paid any amount for Chantix sold by Pfizer.
[GN]
PILGRIM'S PRIDE: Court Refuses to Review Dismissal of Hogan Suit
----------------------------------------------------------------
The U.S. District Court for the District of Colorado denied the
Plaintiff's motion for reconsideration of the order and judgment
dismissing his second amended complaint in the lawsuit titled
PATRICK HOGAN, individually and on behalf of all others similarly
situated, Plaintiff v. PILGRIM'S PRIDE CORPORATION, WILLIAM W.
LOVETTE, FABIO SANDRI, Defendants, Case No. 16-cv-02611-RBJ (D.
Colo.).
The lawsuit is a federal securities action against Pilgrim, a
producer of broiler chickens; William W. Lovette, Pilgrim's CEO at
times relevant to the case; and Fabio Sandri, Pilgrim's CFO at
times relevant to the case ("Defendants"). The Lead Plaintiff,
George Fuller, asserts claims on behalf of himself and others, who
purchased Pilgrim securities between Feb. 21, 2014, and Nov. 17,
2016.
Patrick Hogan was the named plaintiff when this putative class
action was filed. There was some early jockeying for the "lead
plaintiff" designation, but George Fuller was ultimately appointed
as Lead Plaintiff on April 4, 2017. However, there has never been a
request to change the caption.
Mr. Fuller purchased 3,859 shares of Pilgrim stock on Jan. 16,
2015, at the price of $34 per share and 3,627 additional at $27.95
per share. The gist of his complaint is that the Defendants
concealed their participation in a price-fixing conspiracy that
began as early as 2007 and continued through at least November
2016, instead falsely attributing Pilgrim's success to operational
improvements, resulting in the Plaintiff's purchasing his Pilgrim
shares at artificially inflated prices.
On March 14, 2018, the Court granted the Defendants' motion to
dismiss what by then was the Plaintiff's first amended complaint.
The Court found that the Plaintiff did not plead the underlying
antitrust conspiracy with sufficient particularity. The Court
described the Plaintiff's case as essentially premature but not
necessarily hopeless. The case was dismissed without prejudice.
The Plaintiff moved for reconsideration, based in part on a
Northern District of Illinois case that he characterized as an
intervening change in the law. The Court denied the motion, noting
that his arguments about that case and his arguments in general
rehashed arguments that the Court had considered and rejected. The
Court did grant the Plaintiff's unopposed request for leave to
amend but emphasized that the Court does not want to go through the
motions process again if there are not genuinely new facts that are
materially different than those that the Court has already found to
be insufficient to state a claim.
The Plaintiff filed a second amended complaint on June 8, 2020,
more than two years after the dismissal of the case without
prejudice and one and one-half years after leave to amend was
granted. The "genuinely new fact" cited by the Plaintiff to justify
the new complaint was that on June 3, 2020, a federal grand jury in
Colorado indicted certain executives of broiler chicken-producing
companies, including two Pilgrim executives (though not the two
named as defendants in the present case) for their role in a
price-fixing and bid rigging conspiracy during the period 2012
through 2017. The Plaintiff asserted three claims.
In his first claim, the Plaintiff alleged that the Defendants
violated Section 10(b) of the Exchange Act, 15 U.S.C. Section
78j(b), and Rule 10b-5, 17 C.F.R. Section 240.10b-5, in that they:
* employed devices, schemes and artifices to defraud;
* made untrue statements of material facts or omitted to state
material facts necessary in order to make statements made,
in light of the circumstances under which they were made,
not misleading; or
* engaged in acts, practices, and a course of business that
operated as a fraud or deceit upon the Lead Plaintiff and
others similarly situated in connection with their purchases
of Pilgrim securities during the Class Period.
Thus, the bullet points in the first claim alleged that the
Defendants violated the requirements of Rule 10b-5(a), (b) and (c),
even though none of the three subsections was expressly mentioned
in the claim, District Judge R. Brooke Jackson notes.
In his second claim, the Plaintiff asserted violations of Section
10(b) of the Exchange Act and Rules 10b-5(a) and (c). In support of
the claim, the Plaintiff repeated the substance, though not in the
bullet point format, of the allegations of the first claim.
In his third claim, the Plaintiff alleged in that Individual
Defendants Lovett and Sandri violated Section 20(a) of the Exchange
Act, 15 U.S.C. Section 78t(a), by using their control to cause
Pilgrim to issue materially false and misleading information in
violation of Section 10(b) and Rule 10b-5.
On July 31, 2020, the Defendants filed a motion to dismiss the
second amended complaint. Their primary arguments were that the
Plaintiff's Section 10(b) claims were time-barred by the five-year
statute of repose for securities actions found at 28 U.S.C. Section
1658(b)(2), and that the Plaintiff lacked standing to bring any
remaining claims. Following briefing the Court granted the motion
to dismiss. The Court agreed that Mr. Fuller's claims were barred
by the statute of repose in that the second amended complaint,
filed June 8, 2020, had been filed more than five years after Mr.
Fuller's purchases of Pilgrim stock in January and February 2015.
Judge Jackson disagreed with the Plaintiff's arguments that either
the "continuing fraud exception" or "relation back" under Rule
15(c) rendered Mr. Fuller's complaint timely. Judge Jackson also
found that Mr. Fuller lacked standing because he did not purchase
or sell but merely held his stock within the five-year repose
period.
Mr. Fuller now seeks reconsideration of the second order of
dismissal. Specifically, he seeks an order altering or amending the
Amended Final Judgment pursuant to Fed. R. Civ. P. 59(e). The
motion has been fully briefed. No party has requested oral
argument.
Analysis and Conclusions
The Plaintiff argues that the Court committed "clear error" (1) by
focusing on his first claim but ignoring his second claim, which
asserted "scheme liability" under Rules 10b-5(a) and (c); and (2)
by holding that his amended complaint did not relate back to the
date of the filing of the original complaint by Patrick Hogan.
Taking the latter argument first, the Plaintiff's points regarding
relation back are essentially a rehashing of points that he made or
could have made in his opposition to the motion to dismiss, Judge
Jackson notes. Judge Jackson declines to revisit the analysis of
his argument. That is not the purpose of a Rule 59(e) motion, Judge
Jackson points out.
As for the argument that the Court ignored his second claim for
relief, not only is it an entirely new argument that was not made
in response to the Defendants' motion to dismiss, but in the
Court's view, it doesn't fit this case, Judge Jackson holds.
Generally speaking, "scheme liability" claims under Rule 10b-5(a)
or (c) are distinct from Rule 10b-5(b) claims "because they are
based on deceptive conduct rather than deceptive statements," Judge
Jackson explains, citing West Virginia Pipe Trades Health & Welfare
Fund v. Medtronic, Inc., 357 F.Supp.3d 950, 977 (D. Minn. 2014).
The Plaintiff now argues that his scheme case is based on conduct
(the alleged price-fixing conspiracy), not on deceptive statements
or omissions; and that the five-year statute of repose applicable
to a scheme claim runs from the date of the last act in furtherance
of the scheme. He suggests that the last act in furtherance of the
price-fixing scheme took place no earlier than Nov. 17, 2017, the
date on which The Washington Post published an article about
manipulation of the Georgia Dock chicken price index. Thus,
according to the Plaintiff, the five-year period of repose had not
run when he filed his second amended complaint on June 8, 2020.
One must remember, however, that the Plaintiff's first and second
claims as pled were substantively the same other than their
headings, Judge Jackson notes. Both claims were based on the
Defendants' concealment of the alleged price-fixing conspiracy.
Indeed, Mr. Fuller acknowledged in his brief opposing the
Defendants' motion to dismiss that the crux of his complaint was
that the Defendants made untrue or misleading public statements by
failing to disclose the price-fixing conspiracy and instead touting
legitimate causes for Pilgrim's success.
Judge Jackson finds that the Defendants' motion to dismiss did not
single out any of the Plaintiff's three claims. Rather, the
Defendants argued that the case should be dismissed under the
statute of repose applicable to their alleged misrepresentations
and omissions, embedded in each of the three claims, and also for
lack of standing. The Plaintiff's response to the motion did not
single out any subsection either. It did not mention the scheme
claims or suggest that a different statute of repose applied to his
second claim.
The Court ruled on what the parties presented. Only after the Court
granted the motion did the Plaintiff suggest that the Court erred
by ignoring his second claim. In that context, Judge Jackson is not
persuaded that the Court committed "clear error."
The Plaintiff argues that his failure to make a "scheme claim"
argument in response to the Defendants' motion was not a waiver
because he was not required to respond to an argument that the
Defendants did not make. However, Judge Jackson notes, in this case
the Defendants moved to dismiss all three of the Plaintiff's
claims, effectively treating them all as grounded in deceptive
statements.
Even if the Defendants had only addressed the Plaintiff's first
claim, as he now asserts, that claim encompassed the substance of
all three subsections of Rule 10b-5. The Plaintiff could and should
have argued at that time that a "scheme claim" is governed by a
different period of repose. A 59(e) motion is not a vehicle to
raise issues that could have been raised previously, Judge Jackson
states.
Judge Jackson is not persuaded even now by the Plaintiff's repose
argument. Judge Jackson finds that the statute of repose began to
run on the date Mr. Fuller purchased his stock because the scheme
claim as alleged in this case was, in reality, a concealment claim.
Judge Jackson, thus, agrees with the court in In re Teva Securities
Litigation, Nos. 3:17-cv-558 (SRU), 2021 WL 1197805 (D. Conn. March
30, 2021) which rejected an effort to extend the five-year repose
period by transforming misrepresentation claims into a scheme
claim.
The Plaintiff's assertion that the last fraudulent act in
furtherance of the scheme occurred on the date of a newspaper
article is arbitrary at best. Even today Judge Jackson says he does
not know when (if ever) the last act by the Defendants in
furtherance of a price-fixing conspiracy took place. The notion
that the statute of repose didn't begin to run until the newspaper
article essentially is a repetition of the continuing fraud theory
that Judge Jackson rejected.
Order
Because Judge Jackson does not find that there was clear error, the
Plaintiff's motion to alter or amend the Amended Final Judgment
pursuant to Rule 59(e) is denied.
A full-text copy of the Court's Order dated Nov. 29, 2021, is
available at https://tinyurl.com/2p8wswrh from Leagle.com.
PLAYTIKA HOLDING: Howard G. Smith Reminds of January 24 Deadline
----------------------------------------------------------------
Law Offices of Howard G. Smith reminds investors of the upcoming
January 24, 2022 deadline to file a lead plaintiff motion in the
case filed on behalf of investors who purchased Playtika Holding
Corp. ("Playtika" or the "Company") (NASDAQ: PLTK) securities: (a)
pursuant and/or traceable to the Company's January 2021 initial
public offering ("IPO" or the "Offering"); or (b) between January
15, 2021 and November 2, 2021, inclusive (the "Class Period").
Investors suffering losses on their Playtika investments are
encouraged to contact the Law Offices of Howard G. Smith to discuss
their legal rights in this class action at 888-638-4847 or by email
to howardsmith@howardsmithlaw.com.
On or about January 15, 2021, Playtika conducted its IPO, selling
approximately 18.5 million shares of common stock priced at $27.00
per share.
Then, on May 11, 2021, Playtika announced its financial results for
the first quarter of 2021. While the Company's revenue beat
expectations by $57.97 million, its GAAP earnings per share ("EPS")
of $0.09 missed consensus estimates by $0.04.
On this news, Playtika's stock price fell $0.93 per share, or
3.47%, to close at $25.89 per share on May 11, 2021.
Then, on November 3, 2021, Playtika announced its financial results
for the third quarter of 2021. Among other items, Playtika reported
revenue of $635.9 million, missing consensus estimates by $26.07
million, and GAAP EPS of $0.20, missing consensus estimates by
$0.05.
On this news, Playtika's stock price fell $6.80, or 23%, to close
at $22.72 per share on November 3, 2021, thereby injuring investors
further.
The complaint filed alleges that the Defendants made materially
false and/or misleading statements, as well as failed to disclose
material adverse facts about the Company's business, operations,
and prospects. Specifically, Defendants made false and/or
misleading statements and/or failed to disclose that: (i) the
Company's year-over-year total costs and costs related to sales &
marketing and research & development were on track to rise
significantly by the third quarter of 2021; (ii) the success of the
Company's game portfolio was less sustainable than the Company had
represented; (iii) the foregoing issues were likely to negatively
impact the Company's revenue and earnings; and (iv) as a result,
the Company's public statements were materially false and
misleading at all relevant times.
If you purchased or otherwise acquired Playtika securities pursuant
and/or traceable to the IPO or during the Class Period, you may
move the Court no later than January 24, 2022 to ask the Court to
appoint you as lead plaintiff if you meet certain legal
requirements. To be a member of the class action you need not take
any action at this time; you may retain counsel of your choice or
take no action and remain an absent member of the class action. If
you wish to learn more about this class action, or if you have any
questions concerning this announcement or your rights or interests
with respect to these matters, please contact Howard G. Smith,
Esquire, of Law Offices of Howard G. Smith, 3070 Bristol Pike,
Suite 112, Bensalem, Pennsylvania 19020, by telephone at (215)
638-4847, toll-free at (888) 638-4847, or by email to
howardsmith@howardsmithlaw.com, or visit our website at
www.howardsmithlaw.com.
This press release may be considered Attorney Advertising in some
jurisdictions under the applicable law and ethical rules.
Contacts:
Law Offices of Howard G. Smith
Howard G. Smith, Esquire
215-638-4847
888-638-4847
howardsmith@howardsmithlaw.com
www.howardsmithlaw.com [GN]
PLAYTIKA HOLDING: Wolf Haldenstein Reminds of January 24 Deadline
-----------------------------------------------------------------
Wolf Haldenstein Adler Freeman & Herz LLP on Dec. 1 disclosed
investors that a federal class action lawsuit has been filed
against Playtika Holding Corp. ("Playtika" or the "Company")
(NASDAQ: PLTK) in the United States District Court for the Eastern
District of New York on behalf of all persons and entities who
purchased or otherwise acquired Playtika securities:
pursuant and/or traceable to the January 15, 2021 IPO; or between
January 15, 2021 and November 2, 2021, both dates inclusive (the
"Class Period").
All investors who purchased shares of Playtika Holding Corp. and
incurred losses are urged to contact the firm immediately at
classmember@whafh.com or (800) 575-0735 or (212) 545-4774. You may
obtain additional information concerning the action or join the
case on our website, www.whafh.com.
If you have incurred losses in the shares of against Playtika
Holding Corp. you may, no later than January 24, 2022, request that
the Court appoint you lead plaintiff of the proposed class. Please
contact Wolf Haldenstein to learn more about your rights as an
investor in of against Playtika Holding Corp.
The complaint filed alleges that the Defendants made materially
false and/or misleading statements, as well as failed to disclose
material adverse facts about the Company's business, operations,
and prospects. Specifically, Defendants made false and/or
misleading statements and/or failed to disclose that:
-- the Company's year-over-year total costs and costs related to
sales & marketing and research & development were on track to rise
significantly by the third quarter of 2021;
-- the success of the Company's game portfolio was less
sustainable than the Company had represented;
the foregoing issues were likely to negatively impact the Company's
revenue and earnings; and
-- as a result, the Company's public statements were materially
false and misleading at all relevant times.
On January 15, 2021, Playtika conducted its IPO, selling
approximately 18.5 million shares of common stock priced at $27.00
per share.
Then, on May 11, 2021, Playtika announced its financial results for
the first quarter of 2021. While the Company's revenue beat
expectations by $57.97 million, its GAAP earnings per share ("EPS")
of $0.09 missed consensus estimates by $0.04.
On this news, Playtika's stock price fell $0.93 per share, or
3.47%, to close at $25.89 per share on May 11, 2021. Subsequently,
on November 3, 2021, Playtika announced its financial results for
the third quarter of 2021. Among other items, Playtika reported
revenue of $635.9 million, missing consensus estimates by $26.07
million, and GAAP EPS of $0.20, missing consensus estimates by
$0.05.
On this news, Playtika's stock price fell $6.80, or 23%, to close
at $22.72 per share on November 3, 2021, thereby injuring investors
further.
Wolf Haldenstein has extensive experience in the prosecution of
securities class actions and derivative litigation in state and
federal trial and appellate courts across the country. The firm has
attorneys in various practice areas; and offices in New York,
Chicago and San Diego. The reputation and expertise of this firm in
shareholder and other class litigation has been repeatedly
recognized by the courts, which have appointed it to major
positions in complex securities multi-district and consolidated
litigation.
If you wish to discuss this action or have any questions regarding
your rights and interests in this case, please immediately contact
Wolf Haldenstein by telephone at (800) 575-0735, via e-mail at
classmember@whafh.com, or visit our website at www.whafh.com
Contact:
Wolf Haldenstein Adler Freeman & Herz LLP
Patrick Donovan, Esq.
Gregory Stone, Director of Case and Financial Analysis
Email: gstone@whafh.com, donovan@whafh.com or
classmember@whafh.com
Tel: (800) 575-0735 or (212) 545-4774
Attorney Advertising in some jurisdictions under the applicable law
and ethical rules. [GN]
POWER HOME: Files Certiorari Petition in Rickenbaugh Suit
---------------------------------------------------------
Power Home Solar, LLC filed with the Supreme Court of United States
a petition for a writ of certiorari in the matter styled POWER HOME
SOLAR, LLC, Petitioner v. JAMES RICKENBAUGH AND MARY RICKENBAUGH,
INDIVIDUALLY AND ON BEHALF OF OTHERS SIMILARLY SITUATED,
Respondents, Case No. 21-747.
Response is due on December 22, 2021.
Power Home petitions for a writ of certiorari to review the
judgment of the Supreme Court of North Carolina in the case titled
JAMES RICKENBAUGH; and MARY RICKENBAUGH, Individually and on Behalf
of all Others Similarly Situated, Plaintiffs v. POWER HOME SOLAR,
LLC, Defendant, Case No. 19 CVS 244.
On January 7, 2019, the Rickenbaughs filed a class action complaint
against PHS in the Superior Court for the State of North Carolina.
The Complaint was subsequently removed to the North Carolina
Business Court. The Rickenbaughs allege that in approximately
February 2017, they purchased a residential solar energy system
from PHS in reliance on representations made by PHS concerning the
expected energy savings from PHS's products. The Rickenbaughs
further allege that after installing a PHS solar energy system at
their residence, their actual energy savings were just a fraction
of what they had been promised by PHS's sales representatives. The
Rickenbaughs claim they were victims of a "sophisticated and
fraudulent scheme" involving false and misleading promises of
guaranteed energy savings and predatory lending practices for
consumer financing of PHS’s solar energy systems.
The Rickenbaughs brought claims against PHS, individually and on
behalf of a class of other similarly situated consumers, for common
law fraud, unfair and deceptive trade practices, breach of
contract, punitive damages, and unjust enrichment.
On March 26, 2019, PHS moved to compel bilateral arbitration
pursuant to the arbitration provision in the agreement between PHS
and the Rickenbaughs.
On December 20, 2019, the North Carolina Business Court denied
PHS's motion to compel bilateral arbitration, and instead ordered
arbitration of both the Complaint and the question of whether the
arbitration provision permitted class arbitration.
On January 17, 2020, PHS filed a Notice of Appeal from the December
20 Order. On April 3, 2020, the North Carolina Supreme Court issued
a writ of supersedeas staying the December 20 Order and the
submission of the claims to arbitration pending a decision on PHS's
appeal. PHS's appeal before the North Carolina Supreme Court was
docketed on April 1, 2020 and PHS submitted its Appellant's Brief
on June 30, 2020.
On June 9, 2021, the Supreme Court of North Carolina denied PHS's
petition for a writ of certiorari through a summary order. The
Supreme Court of North Carolina issued an order denying
Petitioner's petition for a writ of certiorari to review the
December 20, 2019 Order of the North Carolina Business Court which
deferred to the arbitrator the decision as to whether class
arbitration is available in this dispute.
PHS now requests that the Supreme Court of United States review the
final judgment of the North Carolina state court through this
petition.
The questions presented are: 1. Whether, pursuant to the Federal
Arbitration Act, the incorporation of American Arbitration
Association rules into an arbitration agreement constitutes clear
and unmistakable evidence that the parties agreed to have an
arbitrator determine the availability of class arbitration, where
the rules identified by the parties' agreement are silent as to the
availability of class arbitration? 2. Whether the question of the
availability of class arbitration is an issue that requires a clear
and unmistakable statement of the parties' intent to delegate the
question to an arbitrator beyond what is required to delegate
questions of arbitrability in the bilateral context? [BN]
Defendant-Petitioner Power Home Solar, LLC is represented by:
David A. Sullivan, Esq.
Michael P. Burke, Esq.
DARROWEVERETT LLP
10 North Main St., 3rd Floor
Fall River, MA 02722
Telephone: (508) 675-1576
E-mail: dsullivan@darroweverett.com
- and -
James P. Cooney III, Esq.
Matthew F. Tilley, Esq.
WOMBLE BOND DICKINSON (US) LLP
301 South College St., Suite 3500
Charlotte, NC 28202
Telephone: (704) 331-4980
E-mail: jim.cooney@wbd-us.com
REALPAGE UTILITY: Court Affirms PU Section 7-304 in Moore Suit
--------------------------------------------------------------
In the case, PAUL MOORE v. REALPAGE UTILITY MANAGEMENT, INC., Misc.
No. 1, September Term, 2021 (Md. Spec. App.), Judge Joseph M. Getty
of the Court of Special Appeals of Maryland answered the following
question certified to it by the federal district court in the
affirmative:
Are, for apartment houses built prior to 1978, methods of
energy allocation that determine the billable amount of gas
or electricity by means other than by the actual measurement
of consumption of the individual unit, subject to the Public
Service Commission ("PSC")'s approval as set forth in
Maryland Code ("Md. Code") (1998, 2020 Repl. Vol.), Public
Utilities Article ("PU") Section 7-304?
In Maryland, the PSC is charged with regulating public utilities
such as gas, electricity, telephone, water, and sewage disposal
companies, in order to ensure safe, reliable, and economical
utility services to the citizens of Maryland. For residential
electric and gas service in buildings constructed since July 1,
1978, the statutorily required method for determining an apartment
tenant's utility bill is to measure the actual amount of gas and
electricity consumed by that tenant using an individual meter or
submeter. This method rests on the principle that a tenant should
only pay for gas and electricity consumed by the tenant's unit over
the course of a billing period, which ensures fairness in the
measurement and billing process.
When the Maryland General Assembly required the installation of
individual meters in new construction as of July 1, 1978, it did
not retroactively apply this requirement to existing apartment
buildings. Apartment buildings constructed prior to 1978 that only
have a master meter allocated energy costs to tenants by two
methods: (1) square footage computation and pro rata assessments;
or (2) added rental components. While the PSC has regulatory
responsibility over some types of metering, such as individual
meters and submetering, from the PSC's perspective, the
above-referenced methods of allocating a tenant's energy costs for
apartment buildings constructed prior to 1978 are not, and have
never been, within the PSC's purview.
A new system of calculating a tenant's monthly gas and electric
bill was introduced in the mid-1980s for apartments having a master
meter instead of individual meters or submeters. This system did
not calculate the actual use of a tenant's gas and electricity
consumption, nor did it allocate energy charges solely on the basis
of square footage computations and pro rata assessments. Instead,
the system relied upon various components of measurement, such as
the number of seconds a valve was open on a furnace ("furnace
runtime") to compute a tenant's utility charges. Therefore, this
system was not within the PSC's definition of a submeter and
resulted in a wholly unregulated method of allocating rental
utility charges. Tenants of landlords that utilized these new
energy allocation systems expressed concern over a system that had
no regulatory oversight. Accordingly, the General Assembly
attempted to remedy these concerns by considering legislation in
the 1987 and 1988 Legislative Sessions.
As such, today, if a property owner or residential utility billing
service company uses an energy allocation system to calculate the
amount of gas or electricity consumed by an individual apartment
unit, they must confirm that the method has been approved by the
PSC. In the approval process, the PSC ensures that the energy
allocation system results in a reasonable determination of the cost
of the energy consumed by an individual apartment unit.
Accordingly, this approval provides residential apartment tenants
with a safeguard against arbitrary and unreliable energy allocation
equipment and procedures calculating their gas and electricity
bills.
Before the Court of Special Appeals is a certified question of law
from the U.S. District Court for the District of Maryland ("federal
district court") that arises in the context of a putative class
action lawsuit brought by Appellant Paul Moore, on behalf of
residential apartment tenants, against Appellee RealPage Utility
Management, Inc., a residential utility billing services company
working on behalf of landlords in Maryland. The federal district
court asked the Court of Special Appeals to determine whether, for
apartment houses built prior to 1978, methods of energy allocation
that determine the billable amount of gas or electricity by means
other than by the actual measurement of consumption of the
individual unit, are subject to the PSC's approval as set forth in
Md. Code (1998, 2020 Repl. Vol.), PU Section 7-304.
Based upon a plain language analysis of PU Section 7-304, its
corresponding Code of Maryland Regulations ("COMAR") provisions,
and a review of the General Assembly's intent in enacting the
statute as evidenced by the legislative history, the Court of
Special Appeals holds that the approval requirements stated in PU
Section 7-304 are applicable to all energy allocation systems in
apartment houses, regardless of the construction date of the
building. It opines that under the PSC's interpretation of the
definition set forth in PU Section 7-304, energy allocation systems
are systems that determine the approximate energy use consumed in
an individual dwelling unit with a device that measures a furnace
operating or running time, baseboard pipe temperature, or other
characteristics. It has been a longstanding position of the PSC
that the allocation of energy costs solely computed on the basis of
square footage computations and pro rata assessments is governed by
lease agreements under the Real Property Article and are not within
the purview of the PSC. Therefore, the allocation of energy costs
solely computed on the basis of square footage computations and pro
rata assessments, as well as added rental components, are exempt
from the approval requirements set forth in PU Section 7-304.
In light of the foregoing, the Court of Special Appeals answers the
question certified to it by the federal district court in the
affirmative and holds that the approval requirements stated in PU
Section 7-304 are applicable to all energy allocation systems. The
statute defines such systems as "a method of determining the
approximate energy use within an individual dwelling unit by a
measuring device that the PSC approves." Accordingly, the
allocation of energy costs solely computed on the basis of square
footage computations and pro rata assessments are not within the
PSC's purview, and, therefore, are exempt from the approval
requirements stated in PU Section 7-304. Based on the information
presented to Court of Special Appeals from the federal district
court, it is unclear what type of method RealPage's system
utilizes. The Court of Special Appeals has not been asked, and it
cannot determine, whether RealPage's system is an energy allocation
system subject to the PSC's purview.
A full-text copy of the Court's Nov. 30, 2021 Opinion is available
at https://tinyurl.com/2p87tvyx from Leagle.com.
REXIGEN THERAPEUTICS: $4.8M Class Deal in Khoja Suit Wins Final OK
------------------------------------------------------------------
In the case, KARIM KHOJA, et al., on behalf of himself and all
others similarly situated, Plaintiffs v. OREXIGEN THERAPEUTICS,
INC., et al., Defendants, Case No. 15-cv-00540-JLS-AGS (S.D. Cal.),
Judge Janis L. Sammartino of the U.S. District Court for the
Southern District of California granted Lead Plaintiff Khoja's
Unopposed Motions for:
(1) Final Approval of Settlement and Plan of Allocation; and
(2) an Award of Attorneys' Fees and Litigation Expenses.
Background
The case began over six years ago on March 10, 2015, when the first
of three initial complaints in the action was filed alleging that
Defendant Orexigen made materially misleading statements when it
disclosed confidential 25% interim data from a large-scale clinical
trial of its weight loss drug, Contrave, on March 3, 2015. The news
that Contrave may demonstrate cardioprotective benefits caused
Orexigen's stock to close "31% higher than it did the day prior. A
March 5, 2015 Forbes.com article, however, reported that "a senior
FDA official condemned Orexigen's disclosure, causing the stock
price to plummet and erasing more than $280 million in market
capitalization."
Several related cases were filed premised on the same facts, and on
June 22, 2015, the Honorable M. James Lorenz ordered the cases
consolidated, appointed Khoja as the Lead Plaintiff, and approved
Kahn Swick & Foti, LLPas the Lead Counsel. On June 26, 2015, Judge
Lorenz recused himself from the case, and the Court was
reassigned.
On Aug. 20, 2015, the Plaintiff filed a Consolidated Complaint,
which added allegations of further misleading statements made by
Orexigen on March 3 and May 8, 2015. Defendants Orexigen, Joseph
P. Hagan, Michael A. Narachi, and Preston Klassen filed a Motion to
Dismiss the Consolidated Complaint, which the Court granted with
leave to amend. Thereafter, the Plaintiff requested that the Court
enters judgment in the Defendants' favor so he could pursue an
appeal and subsequently appealed the Court's dismissal decision. On
March 12, 2018, while the appeal was pending, Orexigen filed for
Chapter 11 bankruptcy, and an automatic stay halted further
proceedings against Orexigen, but not the remaining defendants
(collectively, the "Individual Defendants").
On Aug. 13, 2018, the Ninth Circuit affirmed in part and reversed
in part the Court's dismissal of the Consolidated Complaint. The
Individual Defendants filed petitions for panel rehearing and
rehearing en banc, but the Ninth Circuit denied the petitions. They
then filed a petition for writ of certiorari with the Supreme
Court, but the Court denied certiorari.
Following an Appeal Mandate Hearing on Jan. 7, 2019, the Court
issued a briefing schedule for the Individual Defendants to file a
renewed motion to dismiss. On Sept. 23, 2019, the Court granted in
part and denied in part the Individual Defendants' Renewed Motion
to Dismiss. On Oct. 17, 2019, the Plaintiff filed a Consolidated
Amended Complaint ("CAC"), which the Individual Defendants moved to
dismiss.
On March 13, 2020, the parties participated in a day-long mediation
facilitated by Jed Melnick, Esq., of JAMS. After reaching an
impasse, the parties adjourned but agreed that they would resume
settlement discussions after the Court ruled on the Individual
Defendants' pending Partial Motion to Dismiss.
On May 19, 2020, after Orexigen's Wind Down Administrator,
Province, Inc. filed a status report with the Ninth Circuit
reporting that the bankruptcy stay had been lifted, the Ninth
Circuit extended its prior order to Orexigen, and the mandate,
which noted the substitution of Province for Orexigen, was spread
to this Court on July 10, 2020.
On Nov. 2, 2020, the Court granted the Individual Defendants'
Partial Motion to Dismiss. Thereafter, the parties resumed
settlement negotiations, and, after several weeks of additional
negotiations, agreed to accept a mediator's proposal of $4.8
million. On Dec. 9, 2020, the parties completed and executed a
Settlement Term Sheet and filed a Notice of Settlement requesting
that the Court set a date for the Plaintiff to move for preliminary
approval of the parties' settlement. The Court subsequently ordered
the Plaintiff to file a motion for preliminary approval of the
settlement by Feb. 12, 2021. The Plaintiff filed an Unopposed
Motion for Preliminary Approval of Proposed Settlement on Feb. 12,
2021, and the Court granted preliminary approval on April 22, 2021.
On May 18, 2021, the $4.8 million Settlement Amount was paid into
an interest-bearing escrow account on behalf of the Settlement
Class. The Plaintiff's Final Approval and Fees Motions now follow.
The Proposed Settlement preliminarily approved by the Court defines
the Settlement Class as: "All Persons who purchased or otherwise
acquired Orexigen publicly traded securities between March 3, 2015
and May 12, 2015, inclusive, excluding the Defendants, all the
directors and officers of Orexigen (whether current or former),
each of their respective immediate family members, and entities in
which any such excluded person holds a controlling interest."
The Settlement provides for a $4.8 million Settlement Amount less
the following deductions: The reasonable costs and expenses of the
Claims Administrator incurred in connection with providing notice
and administrating the settlement (not to exceed $250,000); certain
taxes and tax expenses; the Lead Counsel's fees (not to exceed 33
percent of the Settlement Amount); and the Lead Counsel's and the
Lead Plaintiff's expenses (not to exceed $185,000). The remaining
balance, i.e., the Net Settlement Fund, is to be distributed to
Authorized Claimants.
Each Settlement Class Member who wishes to receive a portion of the
Net Settlement Fund must submit a Proof of Claim and Release Form
by the date provided in the Proposed Notice, and any Settlement
Class Member who fails to submit a timely Proof of Claim and
Release Form will be barred from receiving payment but otherwise
bound by the terms of the Settlement. Before the deduction of fees,
costs, and expenses, the Plaintiff's damages expert estimates the
average recovery per share to be $0.19, if valid claims are
submitted for all approximately 25 million shares of Orexigen
securities purchased during the Class Period.
Each Authorized Claimant will receive a pro rata share of the Net
Settlement Fund based on a recognized loss formula, which varies
for common stock, call options, and put options.
In exchange, the Class Members will have fully, finally, and
forever waived, released, relinquished, discharged, and dismissed
with prejudice all Released Claims against all Released Defendant
Parties, and will forever be barred and enjoined from commencing,
instituting, intervening in or participating in, prosecuting or
continuing to prosecute any action or other proceeding in any court
of law or equity, arbitration tribunal, or administrative forum, or
other forum of any kind of character (whether brought directly, in
a representative capacity, derivatively, or in any other capacity),
that asserts any of the Released Claims against any of the Released
Defendant Parties, regardless of whether such Settlement Class
Member executed and delivers a Proof of Claim and Release Form, and
whether or not such Settlement Class Member shares in the
Settlement Fund.
Conclusion
Judge Sammartino granted the Lead Plaintiff's Final Approval Motion
and Fees Motion. She certified the Settlement Class for purposes of
the Settlement and approves the Settlement and the Plan of
Allocation as fair, reasonable, and adequate pursuant to Federal
Rule of Civil Procedure 23(e). She ordered the parties to undertake
the obligations set forth in the Stipulation of Settlement that
arise out of the Order.
Judge Sammartino awarded attorneys' fees to the Lead Counsel in the
amount of $1,584,000 and litigation expenses in the amount of
$100,529.65. She also authorized the Lead Counsel to deduct up to
$250,000 from the Settlement Fund for reimbursement of the claims
administration expenses after the total claims administration
expenses are known. She further awarded the Plaintiff an incentive
award in the amount of $9,230 for the work he performed as the
class representative.
Judge Sammartino directed the Clerk of Court to enter a separate
judgment of dismissal in accordance therewith and to close the
case. Without affecting the finality of the Order, the Court
maintains jurisdiction with respect to the implementation and
enforcement of the terms of the Stipulation of Settlement.
A full-text copy of the Court's Nov. 30, 2021 Order is available at
https://tinyurl.com/2p997sx3 from Leagle.com.
SHELBY COUNTY, TN: Class Action Mulled Over Cash Bail Practices
---------------------------------------------------------------
Autumn Scott and David Royer, writing for News3Channel, report that
the American Civil Liberties Union (ACLU), the ACLU of Tennessee,
Just City, and The Wharton Law Firm sent a letter to Shelby County
judicial and government officials on Dec. 1 demanding that the
county end its cash bail practices.
The letter states that the county's current bail practices violate
the constitutional and statutory rights of people arrested in
Shelby County, and outlines proposed reforms to avoid litigation.
The ACLU said if an agreement is not reached, a lawsuit will be
filed.
Under the current pretrial system, a person can be held for weeks
or longer without a bail hearing with counsel and ability to pay is
not considered which leaves those who can't afford bail to be
detained indefinitely.
"Shelby County keeps hundreds of people locked in jail every day
without making any attempt to evaluate if they can afford the bail
they were assigned, creating a wealth-based detention system that
disproportionately harms limited income, Black and disabled
people," said Hedy Weinberg, ACLU-TN executive director. "A justice
system that only treats people fairly if they have money isn't
about 'justice' at all."
Just City aims to reform bail system in Shelby County
Tennessee law requires that judges treat money bail as a last
resort- only to be imposed if other less restrictive conditions are
deemed insufficient to ensure that someone appears for their
trial.
In the letter, the civil rights organizations call on the county to
make sure people who are arrested receive a bail hearing no later
than 24 hours after their arrest with counsel. It also demands that
the person's financial circumstances are considered prior to any
hearing and that secured bail money is only issued as a last
resort.
A person who is detained for even a few days will often face
serious consequences such as losing their job, housing, education,
health care, and even child custody.
"Because of this community's dependence on money bail, the Shelby
County Jail is full of people who cannot pay for their freedom.
There are proven alternatives to this counterproductive system -
tools and policies that have worked in other cities just like
Memphis to reduce crime, save money and help people," stated Josh
Spickler, executive director of Just City. "These methods work, but
they require leadership. Today, we are inviting Shelby County
leaders to join us for a long-overdue conversation about safe and
effective alternatives to the money bail system. We hope they'll
join us."
According to the Vera Institute of Justice, Shelby County spent
nearly $139 million, 31% of the total county budget, on its two
jail facilities in 2019.
Shelby County Mayor's Office Press Secretary Frankie Dakin issued a
statement, saying in part "Our current money bail system is a
function of state law and our judicial system. We support reform
that reduces the criminal justice system's reliance on cash bail. A
person should be held in detention because they pose a risk to
public safety, not because they are poor." [GN]
SIMMONS PREPARED: Smith Appeals Judgment in FLSA Suit to 8th Cir.
-----------------------------------------------------------------
Plaintiff Lonnie Smith, Jr. filed an appeal from a court ruling
entered in the lawsuit entitled LONNIE SMITH, JR., individually and
on behalf of all others similarly situated v. SIMMONS PREPARED
FOODS, INC., Case No. 2:20-cv-02158-PKH, in the U.S. District Court
for the Western District of Arkansas - Ft. Smith.
As reported in the Class Action Reporter on September 17, 2020, the
lawsuit alleges violations of the overtime provisions of the Fair
Labor Standards Act and the Arkansas Minimum Wage Act.
The Plaintiff was employed by the Defendant as an hourly-paid
employee in its chicken factory from August 2019 to February 2020,
and was misclassified by the Defendant as non-exempt from the
overtime requirements of the FLSA and the AMWA.
According to the complaint, the Defendant paid improper overtime
rate to the Plaintiff because it failed to include the value of the
bonuses and the rent credit that it provided to the Plaintiff and
other hourly employees when calculating overtime rate.
Additionally, the Defendant did not compensate the Plaintiff for
the time spent working during lunch breaks because the Plaintiff
was required by the Defendant to clock out for lunch but was
regularly required to work through his lunch break.
On October 21, 2021, Honorable P. K. Holmes III entered judgment
against Simmons Prepared Foods, Inc., in the amount of $2.00.
Interest on this judgment will accrue at the rate of 0.11% per
annum from the date of entry of this judgment until paid.
The Plaintiff seeks a review of the decision entered by Judge
Holmes.
The appellate case is captioned as Lonnie Smith, Jr. v. Simmons
Prepared Foods, Inc., Case No. 21-3750, in the United States Court
of Appeals for the Eighth Circuit, filed on December 1, 2021.
The briefing schedule in the Appellate Case states that:
-- BRIEF OF APPELLANT Lonnie Smith Jr. is due on January 10,
2022; and
-- Appellee brief is due 30 days from the date the court issues
the Notice of Docket Activity filing the brief of appellant.[BN]
Plaintiff-Appellant Lonnie Smith, Jr. appears pro se.
Defendant-Appellee Simmons Prepared Foods, Inc. is represented by:
Ellen A. Adams, Esq.
Amy M. Stipe, Esq.
GABLE & GOTWALS
BOK Park Plaza, Suite 2200
499 W. Sheridan Avenue
Oklahoma City, OK 73102
Telephone: (405) 235-5500
E-mail: eadams@gablelaw.com
astipe@gablelaw.com
- and -
Kerri E. Kobbeman, Esq.
CONNER & WINTERS
4375 N. Vantage Drive, Suite 405
Fayetteville, AR 72703
Telephone: (479) 582-5711
E-mail: kkobbeman@cwlaw.com
- and -
Justin A. Lollman, Esq.
Christopher S. Thrutchley, Esq.
GABLE & GOTWALS
110 N. Elgin, Suite 200
Tulsa, OK 74120-1495
Telephone: (918) 595-4800
E-mail: jlollman@gablelaw.com
cthrutchley@gablelaw.com
STONECO LTD: Bernstein Liebhard Reminds of January 18 Deadline
--------------------------------------------------------------
Bernstein Liebhard, a nationally acclaimed investor rights law
firm, reminds investors of the deadline to file a lead plaintiff
motion no later than January 18, 2022 in a securities class action
lawsuit that has been filed on behalf of investors who purchased or
acquired the securities of StoneCo Ltd. ("StoneCo") (NASDAQ: STNE)
between January 11, 2021 and November 16, 2021, inclusive (the
"Class Period"). The lawsuit was filed in the United States
District Court for the Southern District of New York and alleges
violations of the Securities Exchange Act of 1934.
If you purchased or otherwise acquired StoneCo securities, and/or
would like to discuss your legal rights and options, please visit
Stoneco Ltd Shareholder Class Action Lawsuit or contact Joe Seidman
toll free at (877) 779-1414 or seidman@bernlieb.com.
StoneCo is a provider of financial technology solutions. StoneCo's
services allow merchants and other vendors to conduct electronic
commerce across in-store, online, and mobile channels, primarily in
Brazil.
According to the complaint, Defendants made materially false and/or
misleading statements, as well as failed to disclose material
adverse facts about the Company's business, operations, and
prospects. Specifically, Defendants failed to disclose to investors
that: (1) StoneCo was experiencing difficulties in implementing its
credit product; (2) StoneCo faced significant risks via its
point-of-sale vendor, PAX Global Technology Ltd.; and (3) as a
result of the foregoing, the Company's financial results would be
adversely impacted.
On August 30, 2021, after the market closed, StoneCo announced its
second quarter 2021 financial results in a press release, reporting
an 8.1% year-over-year decrease in revenue "mainly due to
adjustments in credit fair value and significantly lower credit
disbursements." The Company stated that it had "implemented some
prudent actions, like temporarily stopping the disbursement of
credit and increasing coverage for potential future losses, which
impacted [StoneCo's] reported results for the quarter."
As a result of these disclosures, the Company's share price fell
$2.96 to close at $46.54 per share on August 31, 2021, on unusually
heavy trading volume.
Then, on October 26, 2021, PAX Global Technology Ltd's Florida
offices were raided by the U.S. Federal Bureau of Investigation,
the Department of Homeland Security, and several other agencies as
part of a federal investigation. As a Viceroy Research report on
October 27, 2021 pointed out, StoneCo states that PAX "is no longer
[its] sole provider of POS services, [but the Company is] still
substantially dependent on it to manufacture and assemble a
substantial amount of [its] POS devices." In addition, another
company replaced its PAX terminals "because it did not receive
satisfactory answers from PAX regarding its POS devices connecting
to websites not listed in their supplied documentation."
On this news, the Company's share price fell $2.64, or 7%, to close
at $33.81 per share on October 27, 2021, further injuring
investors.
Finally, on November 16, 2021, StoneCo announced that it would
"start retesting our original [credit] product, which is short-term
loans, between the fourth quarter of '21 and the first quarter of
'22." The Company could not provide specific guidance about when
credit volumes would return to levels before StoneCo had halted
origination of credit.
On this news, the Company's share price fell $10.96, or 34%, to
close at $20.70 per share on November 17, 2021, thereby injuring
investors further.
If you wish to serve as lead plaintiff, you must move the Court no
later than January 18, 2022. A lead plaintiff is a representative
party acting on behalf of other class members in directing the
litigation. Your ability to share in any recovery doesn't require
that you serve as lead plaintiff. If you choose to take no action,
you may remain an absent class member.
If you purchased or otherwise acquired StoneCo securities, and/or
would like to discuss your legal rights and options please visit
https://www.bernlieb.com/cases/stonecoltd-stne-shareholder-lawsuit-class-action-fraud-stock-461/
or contact Joe Seidman toll free at (877) 779-1414 or
seidman@bernlieb.com.
Since 1993, Bernstein Liebhard LLP has recovered over $3.5 billion
for its clients. In addition to representing individual investors,
the Firm has been retained by some of the largest public and
private pension funds in the country to monitor their assets and
pursue litigation on their behalf. As a result of its success
litigating hundreds of lawsuits and class actions, the Firm has
been named to The National Law Journal's "Plaintiffs' Hot List"
thirteen times and listed in The Legal 500 for ten consecutive
years.
Contact Information:
Joe Seidman
Bernstein Liebhard LLP
https://www.bernlieb.com
(877) 779-1414
seidman@bernlieb.com [GN]
SUNOCO INC: Writ of Mandamus Filed in Cline Breach of Contract Suit
-------------------------------------------------------------------
Sunoco Inc. filed a writ of mandamus from a court ruling in the
lawsuit styled PERRY CLINE, on behalf of himself and all others
similarly situated v. SUNOCO, INC. (R&M), and, SUNOCO PARTNERS
MARKETING & TERMINALS, L.P., Case No. 6:17-CV-00313-JAG, in the
U.S. District Court for the Eastern District of Oklahoma,
Muskogee.
As previously reported in the Class Action Reporter, Mr. Cline owns
a royalty interest in one or more oil wells in Oklahoma. Sunoco,
Inc. (R&M), and Sunoco Partners Marketing & Terminals, L.P.
("Sunoco"), purchase and resell oil from Cline's wells. Oklahoma
law requires Sunoco to pay proceeds from the oil to Mr. Cline. If
Sunoco pays the proceeds late, it must pay Cline interest on the
payment at a rate set forth in Oklahoma's Production Revenue
Standards Act. Mr. Cline has sued Sunoco for paying his production
proceeds late without paying the required interest.
The Defendants appealed the district court's judgment and orders in
favor of the plaintiff class. The district court awarded the
plaintiff class over $155 million in actual and punitive damages.
It also issued a plan of allocation order to divide and distribute
the damages.
On November 1, 2021, the Court entered an order dismissing
consolidated appeals because Sunoco did not meet its burden to
establish appellate jurisdiction.
The Defendants seek a review of this order.
The appellate case is captioned as In re: Sunoco, Inc. (R&M), et
al., Case No. 21-7063, in the United States Court of Appeals for
the Tenth Circuit, filed on December 1, 2021.[BN]
Defendants-Petitioners SUNOCO, INC. (R&M), NKA Sunoco (R&M), LLC;
and SUNOCO PARTNERS MARKETING & TERMINALS L.P. are represented by:
Mark D. Christiansen, Esq.
EDINGER LEONARD & BLAKLEY
6301 North Western Avenue, Suite 250
Oklahoma City, OK 73118
Telephone: (405) 702-9900
- and -
Matthew Dekovich, Esq.
Mark Emery, Esq.
Daniel Mead McClure, Esq.
NORTON ROSE FULBRIGHT
1301 McKinney Street, Suite 5100
Houston, TX 77010
Telephone: (713) 651-5151
- and -
Michael A. Heidler, Esq.
Marie R. Yeates, Esq.
VINSON & ELKINS
1001 Fannin Street, Suite 2500
Houston, TX 77002-6760
Telephone: (713) 758-2222
- and -
Shannon Wells Stevenson, Esq.
DAVIS GRAHAM & STUBBS
1550 Seventeenth Street, Suite 500
Denver, CO 80202
Telephone: (303) 892-7533
- and -
Robert D. Woods, Esq.
R. Paul Yetter, Esq.
YETTER COLEMAN
811 Main Street, Suite 4100
Houston, TX 77002
Telephone: (713) 632-8000
Plaintiff-Respondent PERRY CLINE, on behalf of himself and all
others similarly situated, is represented by:
Jeffrey J. Angelovich, Esq.
Bradley E. Beckworth, Esq.
Andrew G. Pate, Esq.
NIX PATTERSON
3600 North Capital of Texas Highway, Suite 350B
Building B
Austin, TX 78746
Telephone: (903) 645-7333
- and -
Michael Burrage, Esq.
WHITTEN BURRAGE
512 North Broadway Avenue, Suite 300
Oklahoma City, OK 73102
Telephone: (405) 516-7800
- and -
Paula Jantzen, Esq.
Jason A. Ryan, Esq.
Patrick M. Ryan, Esq.
RYAN WHALEY COLDIRON JANTZEN PETERS & WEBBER
400 North Walnut Avenue
Oklahoma City, OK 73104
Telephone: (405) 239-6040
- and -
Owen McGovern, Esq.
Daniel Nolan Nightingale, Esq.
Russell S. Post, Esq.
BECK REDDEN
1221 McKinney Street, Suite 4500
Houston, TX 77010
Telephone: (713) 951-3700
SUNRISE SENIOR: Appeals Class Cert. Ruling in Heredia Suit
----------------------------------------------------------
Sunrise Senior Living, LLC, et al., filed an appeal from a court
ruling entered in the lawsuit entitled Audrey Heredia, et al. v.
Sunrise Senior Living LLC, Case No. 8:18-cv-01974-JLS-JDE, in the
U.S. District Court for the Central District of California, Santa
Ana.
This is a putative class action arising out of the alleged failure
of the Defendants to staff its assisted living facilities at levels
sufficient to provide the promised level of care to its residents.
The Plaintiffs' Second Amended Complaint (SAC) brings three claims
against Sunrise: violation of the California Consumers Legal
Remedies Act; violation of California's Unfair Competition Law; and
elder financial abuse.
As reported in the Class Action Reporter on February 22, 2021, the
Hon. Judge Josephine L. Staton entered an order denying without
prejudice the Plaintiffs' Motion for Class Certification, and
denying the Plaintiffs' Motion for Leave to Amend.
The Court said, "The Plaintiffs maintain that they made diligent
efforts during this time to seek new representatives. First,
Plaintiffs argue that Sunrise did not provide a list of putative
class members until December 30, 2019. The Plaintiffs drafted
communications to class members and began conducting interviews and
reviewing documents by March 2020. However, as a result of the
COVID-19 pandemic, such efforts were delayed, and the Plaintiffs
were "unable to locate suitable class representatives who had
signed the Sunrise arbitration agreement until July of 2020. The
Plaintiffs then notified Sunrise of their intent to seek leave to
file a further amended complaint on July 17, 2020, and filed the
instant motion on August 21, 2020. The Court acknowledges that the
COVID-19 pandemic likely made it more difficult for Plaintiffs to
conduct interviews with potential class representatives,
particularly in a case involving elderly class members residing in
assisted-living facilities. But this does not explain why the
Plaintiffs could not have sought an order modifying the Scheduling
Order for the same reasons months earlier -- and especially before
filing and fully briefing a motion for class certification. The
Plaintiffs fail to explain why they could not have sought an order
modifying the schedule at a much earlier point, instead of marching
forward with their motion for class certification with "blind faith
in [the named representatives'] adequacy."
On August 17, 2021, the Plaintiff filed an amended motion for class
certification.
On November 16, 2021, the Court entered an order denying
Defendants' motions to strike expert testimony and granting
Plaintiffs' motion for class certification.
The Defendants seek a review of this order.
The appellate case is captioned as Sunrise Senior Living, LLC, et
al. v. Audrey Heredia, et al., Case No. 21-80121, in the United
States Court of Appeals for the Ninth Circuit, filed on December 1,
2021.[BN]
Defendants-Petitioners SUNRISE SENIOR LIVING, LLC and SUNRISE
SENIOR LIVING MANAGEMENT, INC. are represented by:
Bradley Joseph Hamburger, Esq.
Michael J. Holecek, Esq.
GIBSON, DUNN & CRUTCHER, LLP
333 S Grand Avenue
Los Angeles, CA 90071-3197
- and -
Michele L. Maryott, Esq.
GIBSON, DUNN & CRUTCHER, LLP
3161 Michelson Drive
Irvine, CA 92612-4412
Telephone: (949) 451-3945
E-mail: mmaryott@gibsondunn.com
- and -
Jason C. Schwartz, Esq.
GIBSON, DUNN & CRUTCHER, LLP
1050 Connecticut Avenue, NW
Washington, DC 20036-5306
Telephone: (202) 955-8500
E-mail: jschwartz@gibsondunn.com
Plaintiffs-Respondents AUDREY HEREDIA, as successor-in-interest to
the Estate of Carlos Heredia; AMY FEARN, as successor-in-interest
to the Estate of Edith Zack; and HELEN GANZ, by and through her
Guardian ad Litem, Elise Ganz, on behalf of themselves and all
others similarly situated, are represented by:
Robert S. Arns, Esq.
Shounak S. Dharap, Esq.
Robert C. Foss, Esq.
ARNS LAW FIRM
515 Folsom Street, 3rd Floor
San Francisco, CA 94105
Telephone: (415) 495-7800
E-mail: ddl@arnslaw.com
- and -
Sarah Colby, Esq.
George Nobuo Kawamoto, Esq.
STEBNER & ASSOCIATES
870 Market Street
San Francisco, CA 94102
Telephone: (415) 362-9800
E-mail: sscolby@schneiderwallace.com
george@stebnerassociates.com
- and -
Julie Erickson, Esq.
ERICKSON KRAMER OSBORNE, LLP
44 Tehama Street
San Francisco, CA 94105
Telephone: (415) 635-0631
- and -
Mark T. Johnson, Esq.
Guy B. Wallace, Esq.
SCHNEIDER WALLACE COTTRELL KONECKY, LLP
2000 Powell Street, Suite 1400
Emeryville, CA 94608
Telephone: (415) 421-7100
E-mail: gwallace@schneiderwallace.com
- and -
W. Timothy Needham, Esq.
Megan Yarnall, Esq.
JANSSEN MALLOY LLP
730 Fifth Street
P.O. Drawer 1288
Eureka, CA 95501
Telephone: (707) 445-2071
E-mail: tneedham@janssenlaw.com
- and -
Michael D. Thamer, Esq.
MICHAEL D. THAMER LAW OFFICES
12444 South Highway 3
P.O. Box 1568
Callahan, CA 96014
Telephone: (530) 467-5307
E-mail: michael@trinityinstitute.com
UBER TECHNOLOGIES: Faces Price Gouging Class Action in New York
---------------------------------------------------------------
Christina Tabacco, writing for Law Street, reports that a Bronx,
New York woman is claiming that ride-hailing company Uber sometimes
charges customers more than the price initially presented to them
for rides. The Southern District of New York complaint asserts that
despite Uber Technologies Inc.'s purported transparent pricing, the
company illegally dupes consumers and charges them higher fares.
According to the filing, Uber introduced a feature in 2016 called
"Upfront Pricing," purported to provide accuracy and price
certainty to riders by notifying them of the total cost of a ride
prior to purchase. The plaintiff alleges that Uber markets its
transparent pricing scheme to riders, knowing that they will rely
on it when electing to use its service.
The plaintiff explains that Uber can get away with charging riders
more than advertised because it receives the consumers' method of
payment, usually a credit card, at or before the price is
presented. Had the plaintiff known about Uber's "classic bait and
switch scheme," she would not have used the company's services, the
filing says.
The complaint also argues that many overcharged consumers are
unaware that they paid more than advertised. As for proof, the
filing contends that Uber's records are capable of showing each and
every one of the overcharges during the class period.
The plaintiff seeks to certify a class of consumers who purchased
one or more rides through Uber originating anywhere within New York
using Upfront Pricing through the Uber App since Jan. 1, 2016. The
rider states two claims for relief under New York's General
Business Law and one for unjust enrichment. She seeks damages,
actual and statutory, as well as injunctive relief, and an award of
her attorneys' fees and costs.
The plaintiff is represented by Reese LLP. [GN]
UNITED AIRLINES: Faces Class Action Over Early Out Benefits
-----------------------------------------------------------
Rachel Stone, writing for Law360, reports that a retired flight
attendant sued United Airlines in Illinois federal court on Nov.
30, claiming the airline illegally blocked her and other retirees
from accessing benefits and additional pay through "early-out"
severance programs, which the airline maintains are actually paid
leaves of absence. [GN]
UNITED LAUNCH: Creger's Bid for Prelim. Injunction and TRO Denied
-----------------------------------------------------------------
In the case, HUNTER CREGER, et al., Plaintiffs v. UNITED LAUNCH
ALLIANCE LLC, Defendant, Civil Action No. 5:21-cv-01508-AKK (N.D.
Ala.), Judge Abdul K. Kallon of the U.S. District Court for the
Northern District of Alabama, Northeastern Division:
(i) denied the Plaintiffs' motion for a preliminary injunction
and temporary restraining order; and
(ii) denied as moot United Launch's motion for a hearing on the
Plaintiffs' motion.
Background
Hunter Creger, Benjamin Eastman, Sherrie Maine, Lance Norwood, and
Zachary Breland filed the action seeking relief from United
Launch's COVID-19 vaccination policy. United Launch, an aerospace
engineering firm, recently implemented a policy requiring employees
to either get vaccinated against COVID-19 or obtain a medical or
religious exemption. Employees who refuse vaccination and are not
granted an exemption are considered to have "voluntarily resigned."
The Plaintiffs, all unvaccinated current or former employees at
United Launch's Decatur, Alabama facility, requested exemptions.
After United Launch denied their requests, the Plaintiffs filed the
action "on behalf of themselves and all others similarly situated,"
alleging that the implementation of the COVID-19 vaccination policy
and the denial of their exemption requests violate Title VII, the
Americans with Disabilities Act, and Alabama law.
The Plaintiffs seek: (1) certification of a class under Federal
Rule of Civil Procedure 23; (2) a temporary restraining order and
preliminary injunction preventing United Launch from effectuating
its vaccine policy; (3) a permanent injunction doing the same; and
(4) various monetary damages.
Now before the Court is the Plaintiffs' motion for a temporary
restraining order and preliminary injunction, in which they argue
that unless the Court "temporarily enjoins United Launch's mandate
for all employees with religious or medical reasons for seeking an
accommodation, the Plaintiffs and hundreds of others similarly
situated will suffer harms that neither the Equal Opportunity
Employment Commission, the Alabama Department of Labor, nor the
Court can remedy." The Plaintiffs asked the Court to rule on their
motion the same day they filed it. The Court declined, finding that
the Plaintiffs "had not, at this juncture, demonstrated an
irreparable injury requiring immediate injunctive relief," and
instead allowed the parties to fully brief the motion.
Discussion
A preliminary injunction is an "extraordinary remedy," and the
grant of a preliminary injunction is "the exception rather than the
rule." To obtain this extraordinary relief, the applicant must show
that: "(1) it has a substantial likelihood of success on the
merits; (2) irreparable injury will be suffered unless the
injunction issues; (3) the threatened injury to the movant
outweighs whatever damage the proposed injunction may cause the
opposing party; and (4) if issued, the injunction would not be
adverse to the public interest." The movant bears the burden of
persuasion on each of these factors, and is only entitled to a
preliminary injunction upon a clear showing that it is entitled to
such relief.
Judge Kallon turns now to these four factors to ascertain whether
the Plaintiffs are correct that they have met their burden for each
and that an injunction is necessary to ensure that "the EEOC and
the court will be able to order meaningful relief later."
A.
The first factor requires a movant to make a clear showing that
their claims have a substantial likelihood of success on the
merits.
Judge Kallon finds that the Plaintiffs have failed to meet their
burden for the first element of a preliminary injunction as to any
of their three claims. Importantly, a preliminary injunction is
"not to be granted unless the movant clearly establishes the burden
of persuasion as to the four requisites." "Failure to show any of
the four factors is fatal, and the most common failure is not
showing a substantial likelihood of success on the merits."
B.
In addition to showing a likelihood of success on the merits,
plaintiffs seeking a preliminary injunction must also show that
they are "likely to suffer irreparable harm in the absence of
preliminary relief." An irreparable injury is one that "cannot be
undone through monetary remedies."
Judge Kallon is sympathetic to the alleged injuries. But, he finds,
that each of the potential harms are either not irreparable -- i.e.
can be remedied through later compensation or other relief -- or
are based on speculation. If the plaintiffs are ultimately
successful, for example, a court or administrative agency of
competent jurisdiction could award the plaintiffs all medical costs
incurred due to a lack of insurance and related damages due to any
emotional distress. Moreover, each of the alleged injuries is
contingent on the Plaintiffs being unable to secure income and
benefits from a new employer. But this inability to find new work
is speculative at best, and the Supreme Court has explicitly noted
that "difficulties in obtaining other employment" does not support
a showing of irreparable harm.
C.
As for the third factor, the Plaintiffs must show that "the
threatened injury to the movant outweighs whatever damage the
proposed injunction may cause the opposing party." They argue that
an injunction will not damage United Launch because it (1) does not
require customers and visitors to be vaccinated, (2) does not
require the testing of these who have been vaccinated, "even though
the CDC has acknowledged that the existing vaccines do not prevent
reinfection or transmission," and (3) does not require vaccinated
employees to wear masks or social distance. By contrast, the
Plaintiffs argue, in addition to the harms mentioned previously,
they face the gravely serious injury of being forced to get
vaccinated and "forsake their religious beliefs and health."
But United Launch is not forcing employees to get vaccinated
against their will, Judge Kallon finds. Rather, the vaccine mandate
calls only for employees to look for a new job if they decline
vaccination. This threat of having to seek new employment, however
stressful, does not tip the balance of equities in their favor. And
though the Plaintiffs certainly may be harmed by losing their jobs
at United Launch, this harm does not outweigh the potential harms
that United Launch may face if it is forced to retain unvaccinated
employees without valid bases for accommodations.
D.
Finally, the movant must show that their proposed injunction "would
not be adverse to the public interest." The Plaintiffs argue that
an injunction will serve the public interest by "enforcing the
guarantees enshrined in the Constitution and federal
anti-discrimination law," and they specifically stress the
importance of protecting the right to religious freedom and bodily
autonomy.
But, as Judge Kallon outlined, the Plaintiffs' religious liberty is
not threatened, nor is their medical freedom of choice. Rather, the
Plaintiffs are given the option to remain unvaccinated -- an option
that they have all chosen -- and instead seek employment with a
company that does not require vaccination. Conversely, there is
unquestionably a public interest in allowing companies to promote
the safety and welfare of their employees by taking preventative
measures against COVID-19, or, in the case, to retain government
contracts and thereby continue to employ a substantial number of
employees.
Given that the Plaintiffs have failed to show a public interest in
enjoining United Launch's vaccine requirement, and in light of the
presumptive public interest in combatting the virus's spread, the
Plaintiffs have failed to make a clear showing as to a preliminary
injunction's fourth requirement.
Conclusion
Judge Kallon concludes the Plaintiffs have not demonstrated, at
this juncture, that they are entitled to preliminary injunctive
relief. Therefore, he denied their motion for a preliminary
injunction and temporary restraining order. United Launch's motion
for a hearing on the Plaintiffs' motion is also denied as moot.
A full-text copy of the Court's Nov. 30, 2021 Memorandum Opinion &
Order is available at https://tinyurl.com/yfmczp6t from
Leagle.com.
UNIVERSITY OF MIAMI: Settles Retirement Plan Class Action Suit
--------------------------------------------------------------
Emile Hallez, writing for InvestmentNews, reports that the
University of Miami is settling a lawsuit over fees in its
defined-contribution retirement plans for $1.85 million, according
to court filings made.
The school was sued in April 2020 in the Miami division of U.S.
District Court for the Southern District of Florida, with law firms
representing plaintiffs and the proposed class alleging that it
failed in its fiduciary duties of prudence and loyalty.
The university didn't monitor expenses or solicit competitive bids
for plan administration, leading to higher-than-necessary fees paid
to record keepers Fidelity and TIAA, the plaintiffs claimed. They
also alleged that the school did not prudently select investment
options, taking particular aim at the CREF Stock Account and TIAA
Real Estate Account, which they claimed were expensive and
underperforming relative to other available options. Finally, the
plaintiffs alleged that the university failed to monitor its
appointed fiduciaries.
However, most of those claims hit a wall, with the judge presiding
over the case tossing them earlier this year by granting a motion
to dismiss. The only one that remained active was the portion of a
claim dealing with administrative expenses, related to the duty of
prudence.
That development led the parties to hold a settlement conference,
according to a court filing.
As much as a third of the settlement amount, or more than $600,000,
will go toward attorneys' fees, the agreement noted.
The settlement also includes a nonmonetary component that requires
the university to issue a request for proposals for administrative
and record-keeping services for the plan within three years. The
school also can't agree to an increase in contractual fees for
either of the plans' record keepers during that three-year period,
according to the settlement, which requires court approval.
Representing plaintiffs in the case are law firms McKay Law, Wenzel
Fenton Cabassa and Justice for Justice. [GN]
US DOMINION: Plaintiffs Must Defend Cooper Suit From Dismissal
--------------------------------------------------------------
In the lawsuit captioned JENNIFER L. COOPER, EUGENE DIXON, FRANCIS
J. CIZMAR, ANNA PENNALA, KATHLEEN DAAVETTILA, CYNTHIA BRUNELL,
KARYN CHOPJIAN, and ABBIE HELMINEN, individually and on behalf of
all others similarly situated, Plaintiffs v. US DOMINION, INC.,
DOMINION VOTING SYSTEMS, INC., and DOMINION VOTING SYSTEMS
CORPORATION, Defendants, Case No. 21-cv-02672-PAB-STV (D. Colo.),
the U.S. District Court for the District of Colorado ordered the
Plaintiffs to show cause why this case should not be dismissed over
subject matter jurisdiction.
The matter is before the Court sua sponte on the Class Action
Complaint. The Plaintiffs assert that the Court has jurisdiction
over this matter pursuant to 28 U.S.C. Section 1332(d), the Class
Action Fairness Act ("CAFA").
Chief District Judge Philip A. Brimmer notes that in every case and
at every stage of the proceeding, a federal court must satisfy
itself as to its own jurisdiction, even if doing so requires sua
sponte action, citing Citizens Concerned for Separation of Church &
State v. City & Cnty. of Denver, 628 F.2d 1289, 1297 (10th Cir.
1980). Absent an assurance that jurisdiction exists, a court may
not proceed in a case.
Judge Brimmer explains that courts are well-advised to raise the
issue of jurisdiction on their own, regardless of parties' apparent
acquiescence. First, it is the Court's duty to do so. Second,
regarding subject matter jurisdiction, the consent of the parties
is irrelevant, principles of estoppel do not apply, and a party
does not waive the requirement by failing to challenge
jurisdiction. Finally, delay in addressing the issue only compounds
the problem if, despite much time and expense having been dedicated
to the case, a lack of jurisdiction causes it to be dismissed.
CAFA governs class actions filed under Rule 23 of the Federal Rules
of Civil Procedure. According to Section 1332(d)(2)(A), which
codifies CAFA, district courts will have original jurisdiction of
any civil action in which the matter in controversy exceeds the sum
or value of $5 million, exclusive of interest and costs, and is a
class action in which any member of a class of plaintiffs is a
citizen of a State different from any defendant. There are three
prerequisites to subject matter jurisdiction under CAFA: (1)
minimal diversity between plaintiffs and defendants; (2) at least
100 plaintiffs in the class; and (3) an amount in controversy that
exceeds $5 million.
The Plaintiffs in this lawsuit have alleged that there are at least
100 plaintiffs in the class, and that the amount in controversy in
this matter exceeds $5 million. However, the present allegations
are insufficient to demonstrate that minimal diversity exists
between the Plaintiffs and the Defendants, Judge Brimmer holds.
Minimal diversity requires that any member of a class of plaintiffs
is a citizen of a State different from any defendant. For all Named
Plaintiffs, however, the complaint merely alleges residency, and
there is no allegation of domicile for any named Plaintiff, Judge
Brimmer finds. The Plaintiffs allege that each Named Plaintiff is
an individual and resident of the State of Michigan.
Residency, however, is not synonymous with domicile, Judge Brimmer
holds, citing Miss. Band of Choctaw Indians v. Holyfield, 490 U.S.
30, 48 (1989). To establish domicile in a particular state, a
person must be physically present in the state and intend to remain
there. Accordingly, allegations of the Plaintiffs' residency are
insufficient to establish their citizenship, Judge Brimmer points
out.
Because the allegations are presently insufficient to allow the
Court to determine whether minimal diversity exists, the Plaintiffs
have failed to establish that the Court has jurisdiction under
CAFA, Judge Brimmer holds.
The Court, therefore, ordered the Plaintiffs to show cause why this
case should not be dismissed due to the Court's lack of subject
matter jurisdiction.
A full-text copy of the Court's Order dated Nov. 29, 2021, is
available at https://tinyurl.com/yckuceyj from Leagle.com.
VAXART INC: Delaware Court Narrows Claims in Stockholder Suit
-------------------------------------------------------------
In the case, IN RE VAXART, INC. STOCKHOLDER LITIGATION,
Consolidated C.A. No. 2020-0767-PAF (Del. Ch.), Judge Paul A.
Fioravanti, Jr., of the Court of Chancery of Delaware entered a
Memorandum Opinion:
a. granting the motions to dismiss by the Vaxart Defendants
and the Armistice Defendants as to Counts I, IV, and V; and
b. requesting supplemental briefing and submission of
documents cited in the Complaint.
Background
Vaxart is a small biotechnology company that embarked on developing
a vaccine for COVID-19 in the early stages of the pandemic. In
early June 2020, the Company's board of directors agreed to amend
two warrant agreements between the Company and its one-time
majority stockholder. The warrant amendments permitted the
stockholder to beneficially own a greater number of Vaxart shares
upon exercise of the warrants. In effect, it enabled the
stockholder to exercise and dispose of the warrant shares faster
than under the terms of the original warrants. A few days later,
Vaxart stockholders voted on an amendment to the Company's
incentive compensation plan to increase the number of shares
eligible for grant. A few weeks after those two events, the Company
announced that it had been selected to participate in a non-human
primate study sponsored by Operation Warp Speed, the federal
government's program to accelerate the development and distribution
of a COVID-19 vaccine. The Company's stock price jumped upon the
announcement.
The Plaintiffs in the action are Vaxart stockholders who have
asserted a variety of claims arising from the three events
described. They allege that the Company's board and former majority
stockholder had knowledge of Vaxart's selection to participate in
the non-human primate study before the board approved the warrant
agreement amendments and before the stockholder vote on the
amendment to the equity incentive plan. The Plaintiffs allege the
board withheld the disclosure of that information until after those
two events so as to benefit themselves in the form of spring-loaded
option grants, and to benefit the former majority stockholder,
which exercised the warrants and sold most all of the underlying
shares within two days of the public announcement of Vaxart's
participation in the non-human primate study.
The Plaintiffs have asserted claims for breach of fiduciary duty,
unjust enrichment, and aiding and abetting.
On Sept. 8, 2020, Plaintiff Galjour filed his complaint. On Oct. 9,
2020, the Vaxart Defendants and the Armistice Defendants both moved
to dismiss that complaint in its entirety. On Oct. 20, 2020,
Plaintiffs Jacquith and Paul Bergeron filed their complaint. The
court consolidated the actions on Nov. 12, 2020. On Dec. 14, 2020,
the court entered an order establishing a leadership structure for
the Plaintiffs and designated the Jacquith-Bergeron complaint as
the operative complaint. The Defendants moved to dismiss the
operative complaint. The court heard argument, taking the matter
under submission on Aug. 24, 2021.
On Aug. 4, 2020, the plaintiffs not involved in the instant case
initiated separate litigation against Floroiu, Latour, Davis,
Finney, Yedid, Boyd, and Maher (the "California Defendants") in the
California Superior Court in San Mateo County (the "California
Litigation"). On Nov. 25, 2020, the Plaintiffs in the California
Litigation filed a Second Amended Complaint. On Dec. 30, 2020, the
California Defendants filed a demurrer. On March 15, 2021, the
California Superior Court granted the demurrer, without prejudice
and with leave to replead. On June 17, 2021, the plaintiffs in the
California action filed a Third Amended Complaint. On Aug. 18,
2021, the California Defendants filed a demurrer to the Third
Amended Complaint. Briefing is ongoing.
Analysis
The Complaint contains five counts. Count I is a derivative claim
alleging the Director Defendants breached their fiduciary duties by
approving the Warrant Amendments. Count II is a derivative unjust
enrichment claim alleging the Director Defendants breached their
fiduciary duties by issuing spring-loaded options in violation of
the 2019 Plan. Count III is a direct claim alleging Floroiu,
Latour, Davis, Finney, Yedid, and VanLent breached their fiduciary
duty by failing to disclose Vaxart's selection to participate in
the OWS study prior to the stockholder vote on the 2019 Amendment.
Count IV is a derivative unjust enrichment claim against Armistice.
Count V alleges Armistice breached its fiduciary duties as a
controlling shareholder or, in the alternative, aided and abetted
the Director Defendants' breaches of fiduciary duties. In the
alternative, the Plaintiffs allege Armistice aided and abetted the
Director Defendants' breaches of their fiduciary duties in
approving the Warrant Amendments.
First, Judge Fioravanti holds that Armistice was not a controlling
stockholder at the time of the transaction. He finds that the
allegations of Floroiu's connections to Armistice and Boyd do not
support a pleadings-stage inference of a lack of independence, let
alone susceptibility to domination. The bare allegation that
Floroiu worked at McKinsey with Boyd, many years ago -- the
Complaint lacks any mention of duration -- is similarly weak. In
short, there are no well-pleaded allegations that Armistice had the
ability to or exercised control over the Board at the time of, or
with respect to, any of the challenged transactions. Accordingly,
the Plaintiffs have not created a pleadings-stage inference that
Armistice owed fiduciary duties to Vaxart as a controller.
Second, Judge Fioravanti finds that demand is not excused as to
claims concerning the Warrant Amendments. As he explained, the
Complaint's meager references to Floroiu's employment history do
not undermine his presumed independence. The Complaint also fails
to sustain the reasonable inference the Stock Option Recipients
received a material benefit from the Warrant Amendments or stood to
lose a related material benefit by challenging the decision to
approve the Warrant Amendments. Lastly, the claim alleging breach
of fiduciary duties for approval of the Warrant Amendments is
dismissed because demand is not excused.
Third, the Complaint fails to plead sufficient facts to sustain the
inference that the Defendant Directors were motivated to "to
enrich" Boyd and Maher in any way and thus invited a substantial
risk of liability for conferring a benefit on the Armistice
directors out of disloyalty or otherwise in bad faith. The claims
against the Armistice Directors are accordingly dismissed because
demand was not excused.
Fourth, Count IV is an unjust enrichment claim against Armistice
premised on the breach of fiduciary duty claims against the Board
for approving the Warrant Amendments. The Plaintiffs allege that
"the Warrant Amendments allowed Armistice to realize nearly $267
million in cash proceeds over two trading days" and that "these
benefits were derived from improper means." As the predicate claim
alleging breach of fiduciary duty has been dismissed for failure to
make a demand, Judge Fioravanti opines that the claim alleging
unjust enrichment must be dismissed as well.
Finally, Count V is a breach of fiduciary duty claim against
Armistice. The Plaintiffs argue that, in the alternative, Armistice
is liable for aiding and abetting the Director Defendants' breaches
of fiduciary duties in approving the Warrant Amendments. The breach
of fiduciary duty claims related to the Director Defendant's
approval of the Warrant Amendments were derivative; the aiding and
abetting claim is derivative as well. The Plaintiffs have alleged
an aiding and abetting claim against Armistice alone. As employees
of Armistice, Boyd and Maher have a disabling interest in the
outcome of the litigation against their employer.
For reasons he already discussed, Judge Fioravanti finds that the
Plaintiffs have failed to plead sufficient facts to support their
theory that any other members of the Demand Board would be unable
to consider a litigation demand against Armistice or the Armistice
Directors. Armistice was not a controlling stockholder. Even
assuming the fund received a material benefit from the Warrant
Amendments, no members of the Board were dependent on Armistice,
the Complaint fails to allege particularized facts creating a
reasonable doubt as to the capacity of a majority of the Demand
Board to impartially consider a demand. Demand is not excused, and
the aiding and abetting claim is dismissed.
Conclusion
For the foregoing reasons, Judge Fioravanti granted the motions to
dismiss by the Vaxart Defendants and the Armistice Defendants as to
Counts I, IV and V. He requested supplemental briefing and
submission of documents cited in the Complaint, which will be
detailed in a separate letter to the parties.
A full-text copy of the Court's Nov. 30, 2021 Memorandum Opinion is
available at https://tinyurl.com/tc4swjyc from Leagle.com.
Stephen E. Jenkins, F. Troupe Mickler, IV, ASHBY & GEDDES, P.A.,
Wilmington, Delaware; Gregory V. Varallo, BERNSTEIN LITOWITZ BERGER
& GROSSMANN LLP, in Wilmington, Delaware; Jeroen van Kwawegen,
Daniel E. Meyer, Margaret Sanborn-Lowing, BERNSTEIN LITOWITZ BERGER
& GROSSMANN LLP, in New York City; Gustavo F. Bruckner, Samuel J.
Adams, Daryoush Behbood, POMERANTZ LLP, in New York City; Sascha N.
Rand, Rollo C. Baker, IV, Silpa Maruri, Jesse Bernstein, Charles H.
Sangree, QUINN EMANUEL URQUHART & SULLIVAN, LLP, in New York City;
Stanley D. Bernstein, Matthew Guarnero, BERNSTEIN LIEBHARD LLP, in
New York City; William J. Fields, Christopher J. Kupka, Samir
Shukurov, FIELDS KUPKA & SHUKUROV LLP, in New York City, Attorneys
for the Plaintiffs.
Brock E. Czeschin, Andrew L. Milam, RICHARDS LAYTON & FINGER, P.A.,
in Wilmington, Delaware; Riccardo DeBari, Renee Zaytsev, Mendy
Piekarski, THOMPSON HINE, in New York City, Attorneys for Andrei,
Wouter W. Latour, Todd Davis, Michael J. Finney, Robert A. Yedid,
Anne M. VanLent, and Nominal Defendant Vaxart, Inc.
Matthew F. Davis, Abraham C. Schneider, POTTER ANDERSON & CORROON
LLP, in Wilmington, Delaware; Douglas A. Rappaport, Kaitlin D.
Shapiro, Elizabeth C. Rosen, Madeleine R. Freeman, AKIN GUMP
STRAUSS HAUER & FELD LLP, in New York City, Attorneys for
Defendants Steven Boyd, Keith Maher, Armistice Capital, LLC.
WILCO LIFE: 11th Cir. Affirms Dismissal of COI Rate Class Action
----------------------------------------------------------------
Taylor Brinkman, Esq., and Carl Scherz, Esq., of Locke Lord LLP, in
an article for JDSupra, report that on November 15, 2021, the U.S.
Court of Appeals for the Eleventh Circuit affirmed dismissal of
a putative cost-of-insurance ("COI") rate class action in
Anderson v. Wilco Life Insurance Company [1] -- a victory
for life insurers in litigation that has harried the industry for
the last decade.
The lawsuit alleged that Wilco Life -- a successor to Conseco Life
Insurance Company—breached the terms of certain universal
life policies by determining COI rates using factors not
described in the policy. The district court granted Wilco Life's
motion to dismiss the case on the pleadings, holding that the
policy unambiguously gave Wilco Life discretion to determine
current COI rates, as long as they were below the maximum
guaranteed rates stated in the policy. The Eleventh Circuit
affirmed.
Anderson staked her claims on a sentence accompanying the Table of
Guaranteed Monthly COI Rates in her policy. That sentence,
which followed the table and explanation of the annual
guaranteed COI rates, stated that "[a]ctual monthly cost
of insurance rates will be determined by the company based on
the policy cost factors described in your policy" (emphasis
added). The policy's later provision entitled "Cost of
Insurance Rates" explained that the guaranteed monthly COI rates
were "based on the insured's sex, attained age, and premium
class on the date of issue" but that current monthly COI
rates "will be determined by the Company" and would not
exceed the guaranteed rates. Anderson argued that, because
sex, attained age, and premium class were the only "policy cost
factors" described in the policy, the policy restricted Wilco
Life to consider only those factors in adjusting current COI
rates.
The Eleventh Circuit rejected Anderson's argument.
First, it rejected Anderson's invitation to apply contra
proferentem—an oft-cited (and misapplied) contract
construction principle interpreting ambiguous policy exclusions
against the drafter. The court stated that, even if Anderson had
provided a reasonable alternative reading of the policy, a
policy "susceptible to two reasonable meanings is not
ambiguous if the trial court can resolve the conflicting
interpretations by applying the rules of contract
construction."
The court determined that the policy was not ambiguous because
Wilco Life's proffered interpretation, not Anderson's, was
the only reasonable way to read the policy. It held that the
policy plainly set forth two different COI rates (guaranteed
and current), and that engrafting the factors governing the
determination of guaranteed rates onto the current rates would
destroy the policy's distinction between the two types of
rates. It further concluded that the provision stating that current
monthly COI rates "will be determined by the Company" was a
"straightforward" provision that gave Wilco Life discretion
to set Anderson's current monthly rate, citing to cases in other
contexts where the phrase "determined by the Company" has been
interpreted to give discretion.
The Court declined to weigh in on the debate over whether policy
provisions stating that COI rates will be "based on" certain
factors requires insurance companies to consider only those
factors in determining COI rates. It distinguished cases like
Vogt v. State Farm Life Ins. Co., 963 F.3d 753, 761 (8th Cir.
2020), and Fleisher v. Phoenix Life Insurance Co., 18 F. Supp.
3d 456, 470 (S.D.N.Y. 2014). Nevertheless, a separate 11th
Circuit panel recently held in an unreported decision that the
phrase "based on" is not exclusive. Slam Dunk I, LLC v. Conn.
Gen. Life Ins. Co., No. 20-13706, 2021 WL 1575162 (11th
Cir. Apr. 22, 2021). The Slam Dunk court relied on Seventh
Circuit authority in determining that"[n]othing about the plain
and ordinary meaning of the phrase 'based on' connotes
exclusivity, and nothing about it implies the list that
follows is exhaustive." Id. (citing Norem v. Lincoln Benefit
Life Co., 737 F.3d 1145, 1150 (7th Cir. 2013)). [GN]
ZHANGMEN EDUCATION: Kirby McInerney Reminds of Jan. 18 Deadline
---------------------------------------------------------------
The law firm of Kirby McInerney LLP reminds investors that a class
action lawsuit has been filed in the U.S. District Court for the
Southern District of New York on behalf of those who acquired
Zhangmen Education Inc. ("Zhangmen Education" or the "Company")
(NYSE: ZME) American Depositary Shares ("ADSs") pursuant and/or
traceable to the registration statement and prospectus
(collectively, the "Registration Statement") issued in connection
with the Company's June 2021 initial public offering ("IPO").
Investors have until January 18, 2022 to apply to the Court to be
appointed as lead plaintiff in the lawsuit.
Zhangmen Education, based in Shanghai, People's Republic of China
("PRC"), is an education company focused on providing personalized
online courses to K-12 students in China.
On July 23, 2021, less than two months after the IPO, PRC unveiled
a sweeping overhaul of its education sector, banning companies that
teach the school curriculum from making profits, raising capital,
or going public. These drastic measures effectively ended any
potential growth in the for-profit tutoring sector in PRC. On this
news, Zhangmen Education's ADS price declined by $3.36 per ADS, or
approximately 35.2%, from $9.54 per ADS to close at $6.18 per ADS
on July 23, 2021.
On July 26, 2021, Zhangmen Education issued a release providing an
update on the new PRC policies, admitting among other things that
Zhangmen Education expected "the Guidelines to have material
impacts on our existing business operations, financial condition
and corporate structure." On this news, Zhangmen Education's ADS
price declined by $1.21 per ADS, or approximately 19.6%, from $6.18
per ADS to close at $4.97 per ADS on July 26, 2021.
On August 25, 2021, Zhangmen Education issued a press release
providing a further update on similar policies implemented by the
Shanghai government and the implications for Zhangmen Education's
business, stating for example that: (a) "No new provider of
after-school tutoring services on academic subjects in China's
compulsory education system ('Academic AST') will be approved,
while existing Academic AST providers shall be subject to review
and re-registration as non-profit organizations"; (b) "Tuition fees
for Academic AST shall follow the guidelines from the government to
prevent any excessive charging or excessive profit-seeking
activities"; and (c) "AST advertising shall be subject to enhanced
oversight." On this news, Zhangmen Education's ADS price declined
by $0.14 per ADS, or approximately 4.2%, from $3.37 per ADS to
close at $3.23 per ADS on August 25, 2021.
On November 19, 2021, Zhangmen Education announced that its
auditor, Deloitte Touche Tohmatsu Certified Public Accountants LLP,
had voluntarily resigned. On this news, Zhangmen Education's ADS
price declined by $0.09 per ADS, or approximately 5.8%, from $1.56
per ADS to close at $1.47 per ADS on November 19, 2021.
The lawsuit alleges that the IPO Registration Statement failed to
disclose that: (a) PRC authorities were in the process of
implementing sweeping new regulatory reforms on the private
education industry in China including, among others, prohibitions
on: (i) profit-making by private education companies, (ii) engaging
in core-curriculum tutoring on weekends and vacations, and (iii)
capital-raising by companies like Zhangmen Education; (b) the known
risks, events, and uncertainties noted in the Registration
Statement were reasonably likely to have a material adverse effect
on Zhangmen Education's business; and (c) based on the foregoing,
the statements in the Registration Statement concerning Zhangmen
Education's historical financial performance, market demand, and
industry trends were materially incomplete, inaccurate, and
misleading.
If you purchased or otherwise acquired Zhangmen Education ADSs,
have information, or would like to learn more about these claims,
please contact Thomas W. Elrod of Kirby McInerney LLP at
212-371-6600, by email at investigations@kmllp.com, or by filling
out this contact form, to discuss your rights or interests with
respect to these matters without any cost to you.
Kirby McInerney LLP is a New York-based plaintiffs' law firm
concentrating in securities, antitrust, whistleblower, and consumer
litigation. The firm's efforts on behalf of shareholders in
securities litigation have resulted in recoveries totaling billions
of dollars. Additional information about the firm can be found at
Kirby McInerney LLP's website: http://www.kmllp.com.
This press release may be considered Attorney Advertising in some
jurisdictions under the applicable law and ethical rules.
Contacts:
Kirby McInerney LLP
Thomas W. Elrod, Esq.
212-371-6600
https://www.kmllp.com
investigations@kmllp.com [GN]
ZOOM VIDEO: Settles Zoombombing Class Action Lawsuit
----------------------------------------------------
Annie Rauwerda, writing for Boingboing, reports that
videoconferencing service Zoom is faced with an $85 million lawsuit
over privacy and security issues like third-party data sharing and
Zoombombing. Zoom denies wrongdoing but agreed to pay the hefty
settlement.
Subscribers would be eligible for $25 or 15% of their subscription
cost -- whichever is larger. If you were not a paid subscriber but
used the service, you are entitled to $15. To file a claim, visit
www.zoommeetingsclassaction.com, fill out a form, and provide proof
that you used Zoom between March 30, 2016, and July 30, 2021. [GN]
*********
S U B S C R I P T I O N I N F O R M A T I O N
Class Action Reporter is a daily newsletter, co-published by
Bankruptcy Creditors' Service, Inc., Fairless Hills, Pennsylvania,
USA, and Beard Group, Inc., Washington, D.C., USA. Rousel Elaine T.
Fernandez, Joy A. Agravante, Psyche A. Castillon, Julie Anne L.
Toledo, Christopher G. Patalinghug, and Peter A. Chapman, Editors.
Copyright 2021. All rights reserved. ISSN 1525-2272.
This material is copyrighted and any commercial use, resale or
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Information contained herein is obtained from sources believed to
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