/raid1/www/Hosts/bankrupt/CAR_Public/220131.mbx
C L A S S A C T I O N R E P O R T E R
Monday, January 31, 2022, Vol. 24, No. 16
Headlines
AG-WISE ENTERPRISES: Ruiz Files Suit in Cal. Super. Ct.
ALDI INC: Faces Haas Suit Over Pretzels' False White Fudge Labels
AMERICAN HONDA: Final Approval Order, Judgment Entered in Banh Suit
BADIA SPICES: Spices Contain High Level of Heavy Metals, Hill Says
BEIERSDORF INC: Sunscreen Contains Carcinogen, Lawsuit Claims
BENTLEY PROPERTIES: Filing for Class Cert. Extended to May 23
BONOBOS INC: Averts Class Action Over Alleged 2020 Data Breach
BONOBOS INC: Court Dismisses Cooper Class Suit Without Prejudice
BOOKS OF WONDER: Miller Files ADA Suit in S.D. New York
BRIAD RESTAURANT: Andersen's $550K Class Deal Wins Prelim. Approval
BRIDGECREST ACCEPTANCE: Judgment on Pleadings Bid in Canady Denied
BRIGHT HEALTH: Bernstein Liebhard Reminds of March 7 Deadline
BRIGHT HEALTH: ClaimsFiler Reminds of March 7 Deadline
BRIGHT HEALTH: Pomerantz LLP Reminds of March 7 Deadline
BROOKFIELD ASSET: Court Dismisses Simons Stockholder Class Suit
BUMBLE INC: Alkutkar Sues Over Bumble Dating App's False Claims
BURLINGTON RESOURCES: Loses Judgment on Pleadings Bid in Rice Suit
CHILDREN'S HOSPITAL: Faces ERISA Class Action in Massachusetts
COMMUNITY ACTION: James Files Suit in Cal. Super. Ct.
COMPASS PACT: Daily Sues Over Unpaid Overtime Wages
CORECIVIC INC: Faces Class Suit in Nevada Over Alleged Wiretapping
CRST MALONE: Notice of Action to Drivers in Broome Suit Allowed
DAN LIU: Scheduling Order on FRCP 23 Issues Entered in Cheng Suit
DESKTOP METAL: Kirby McInerney Reminds of February 22 Deadline
DGS CONSTRUCTION: Loses Bid for Judgment as Matter of Law in Amaya
ELITE LINE: Scheduling Order on Class Cert. Entered in Shaw Suit
EXELA TECHNOLOGIES: Loses Bid to Dismiss Shen's 2nd Amended Suit
FARMLAND PARTNERS: Approval of Brokop's Class Notice Recommended
FASTENAL CO: Court Orders More Briefing on Jackson Class Settlement
FIRSTCASH INC: Gainey McKenna Reminds of March 15 Deadline
FLYING FOOD: Alfaro Files Suit in Cal. Super. Ct.
FRANKENMUTH MUTUAL: Parker Sues Over Property Damage Calculation
GOOGLE LLC: Williams Sues to Recover Unpaid Overtime, Last Pay
GREEN DOT: Review of Lead Plaintiff Appointment in Koffsmon Denied
GREEN VILLAGE: Faces Munguia Suit Over Unpaid Overtime Wages
GULF COAST HOTEL: El-Shabazz Sues Over Unpaid OT, Retaliation
HALFDAYS APPAREL: Bunting Files ADA Suit in E.D. New York
HANOVER VENTURES: Class of Employees Certified in Gonzalez Suit
HOMETOWN AMERICA: Bid to Continue Class Cert. OK'd in Bartok Suit
HOST INTERNATIONAL: Stipulation to Modify Dates Tossed as Moot
INFINITY INSURANCE: Carr Suit Removed to C.D. California
INTERCONTINENTAL CAPITAL: Faces Campbell Labor Suit in E.D. Va.
JAMES CUMMINS: Miller Files ADA Suit in S.D. New York
JUMIO INC: Faces Another Biometrics Privacy Class Action Lawsuit
KB'S BBQ: Cedillo Sues Over Unpaid Overtime for Restaurant Staff
KIMPTON HOTEL: Class Cert Hearing in Thomas Continued to March 11
LASALLE CORRECTIONS: Stanfield Seeks to Certify Class of Nurses
LEXISNEXIS RISK: Clark FCRA Suit Transferred to E.D. Virginia
LINEAR MOTORS: Sessa Appeals Summary Judgment in FCRA Suit
LION HEART: Miller Files ADA Suit in S.D. New York
LIVANOVA PLC: Faces Class Action Over Contaminated Medical Devices
LUXOTTICA OF AMERICA: Gabourel Labor Suit Removed to C.D. Cal.
MAJOR LEAGUE: MInor League Players Oppose Bid to Decertify Class
MARATHON REFINING: Seeks Continuance to File Class Cert. Opposition
MARINA CAFE: Bid to Certify Class in Lobato Suit Tossed as Moot
MARY T. BASSETT: Jacobson Sues Over Racial Preferences Policy
MDL 2924: Protocol for Depositions in Zantac Liability Suit OK'd
MESA AIR: Rule 23 Class Certified in Lowthorp Securities Suit
META PLATFORMS: Faces $3.2-Billion Class Action Over Unfair Pricing
META PLATFORMS: Faces Suit for Harvesting Minors' Data for Profit
MICHAELS ORGANIZATION: Third Joint Bid to Extend CMO Dates Filed
MOREHEAD RESTAURANT: Creecy Sues Over Unpaid Wages, Forced Tipping
MY PILLOW: Class Status Bid Filing Due September 8
NATIONAL DISTRIBUTION: Appeals Arbitration Bid Ruling in Lira Suit
NATIONWIDE MUTUAL: Smith's Bid for Partial Summary Judgment Granted
NEW JERSEY: Court Orders More Brief in Support of Writ Petition
NEW YORK, NY: Class Certification Hearing Set for Feb. 28
NEW YORK, NY: Seeks March 17 Extension to Oppose Class Cert Bid
NORTH ALLEGHENY SCHOOL: Appeals TRO Issuance in ADA Suit
NORTH CAROLINA: Ketchersid's Class Claims Dismissed With Prejudice
NPAS SOLUTIONS: Kansas Court Dismisses Nyanjom FDCPA Class Suit
NRX PHARMACEUTICALS: Faces Class Suit Over Securities Violations
OAK STREET: Glancy Prongay Reminds of March 14 Deadline
ONIN STAFFING: Filing of Class Cert. Bid Extended to March 25
ORRKLAHOMA WEST: Patterson Sues Over Unpaid Overtime Wages
ORVIS COMPANY: Faces Class Action Over Alleged Privacy Violation
PARKHOUSE TIRE: Order on Class Cert Bids Entered in Redick Suit
PATZERIA FAMILY: Bocel Seeks FLSA Conditional Class Certification
PEOPLEASE LLC: Appeals Arbitration Bid Ruling in Espinoza FCRA Suit
PERSOLVE RECOVERIES: Sinkfield Class Suit Junked w/o Prejudice
PHILIPS NORTH: Brooks Sues Over Unpaid OT for Call Center Workers
POPLAR GROVE: Duke Wage-and-Hour Suit Removed to E.D. Arkansas
PRATT & WHITNEY: Keller Lenkner Files Amended No-Poach Class Action
PRECISION ALMOND: Velazquez Files Suit in Cal. Super. Ct.
PROFESSIONAL DIRECTIONAL: Snoddy Sues Over Unpaid Overtime Wages
PROGRESSIVE DIRECT: Seeks Adjustment of Class Cert. Deadlines
PROGRESSIVE SPECIALTY: Scheduling Order Entered in Drummond Suit
PROTEXTING LLC: Jackson Files TCPA Suit in W.D. Missouri
QUANTUM HEALTH: Tracy Sues Over Care Coordinators' Unpaid OT
ROB GRAHAM : Deadline to file Class Cert. Bid Extended to March 9
ROCKY CAR: Faces Xo Suit Over Car Washers' Unpaid Wages
ROYAL CREDIT: Court Dismisses Schindler Class Suit With Prejudice
RUSH UNIVERSITY: Liable to 403(B) Plan Losses, Barcenas Suit Says
RUTHERFORD COUNTY, TN: Lawmakers to Drop Effort to Oust Judge
SAFESPEED LLC: Oral Argument on Class Cert. Bid Set for Feb. 17
SAGINAW, MI: Court Certifies Class and Subclass in Taylor Suit
SCIENTIFIC GAMES: Reed Wins Leave to File Oversize Brief Instanter
SCOTT ASNER: Class Certification Hearing Rescheduled to May 16
SEVENTY SEVEN ENERGY: Class Status Bid Must be Filed by May 31
SHARPSPRING INC: Monteverde & Associates Reminds of Mar. 8 Deadline
SIMPLY THE BEST: Fails to Pay Proper OT Wages, Naranjo Suit Says
SMILE BRANDS: Edwards Files FDCPA Suit in C.D. California
SPECIALIZED LOAN: Mitchell Appeals Summary Judgment in FCRA Suit
SPORTS WAREHOUSE: Fails to Protect Customers' Info, Solter Claims
SPROUT FOODS: Simmons Suit Transferred to D. New Jersey
STAR BRANDS: Pretzels' White Fudge Label "Deceptive," Cox Claims
STATE FARM: Bid for Extension of Discovery & PTO Deadlines OK'd
STEMILT AG: Hearing on Second Class Status Bid Reset to Feb. 4
STUPP BROS: Conditional Class Cert Discovery Extended to Feb. 28
SVA HEALTHCARE: Review of Class Certification in Rave Suit Tossed
TOSHIBA CORPORATION: Stoyas Loses Bid for Class Certification
TOTAL AGGREGATE: Isaacs Seeks to Conditionally Certify Class
ULTA BEAUTY: Hearing on Motion to Join in Hansber Suit Vacated
UNITED STATES: More Military, Civilian Families File Water Claims
UNITED STATES: Navy Seals Seek to Certify Class & Subclasses
UNIVAR SOLUTIONS: Mismanaged 401(K) Plan, Coyer Suit Alleges
UPPER SAINT CLAIR: Dist. Court Denies Doe's Emergency Bid for TRO
VALVE CORP: Briefing Schedule for Dismissal Bid Filed in Wolfire
VILLAGE OF HIGHLAND: Jones Seeks to Certify FLSA Collective Case
VOLKSWAGEN AG: Bronstein, Gewirtz Reminds of March 15 Deadline
VOLKSWAGEN GROUP: Sued Over Failure to Disclose Defect in Vehicles
WALL & ASSOCIATES: 2nd Circuit Affirms Dismissal of Vandermast Suit
WASATCH ADVANTAGE: Class Certification Order Modified in USA Suit
WESTSIDE INVESTMENTS: Order on Class Cert Bids Entered in Pastore
WHOLE FOODS: Kinzer Appeals Discovery Order in Discrimination Suit
XPO LAST: Green, Tejada Seek to Certify Class
XTO ENERGY: Underpays Day Rate Consultants, Duncan Suit Alleges
YALLA GROUP: Lead Plaintiffs Voluntary Dismiss Class Action
ZEKELMAN INDUSTRIES: Filing of Class Cert. Bid Due May 16
ZIM SHIPPING: Fails to Pay Proper Wages, Williams Suit Says
[*] Australia Sees Rise of State-Based Class Action Regimes
[*] Villages of Lake in the Hills and Cary Sue Over PFAS Exposure
*********
AG-WISE ENTERPRISES: Ruiz Files Suit in Cal. Super. Ct.
-------------------------------------------------------
A class action lawsuit has been filed against Ag-Wise Enterprises,
Inc., et al. The case is styled as Leocadio Meraz Ruiz, individual
and class representative on behalf of himself and all other
similarly situated non-exempt former and current employees v.
Ag-Wise Enterprises, Inc., Ed Kuykendall, Case No. BCV-22-100220
(Cal. Super. Ct., Kern Cty., Jan. 26, 2022).
The case type is stated as "Other Employment – Civil Unlimited."
AG-Wise Enterprises, Inc. was founded in 1983. The Company's line
of business includes providing farm management services.[BN]
The Plaintiff is represented by:
Shoham J. Solouki, Esq.
SOLOUKI | SAVOY, LLP
316 W 2nd St., Ste. 1200
Los Angeles, CA 90012-3537
Phone: 213-814-4940
Fax: 213-814-2550
Email: shoham@soloukisavoy.com
ALDI INC: Faces Haas Suit Over Pretzels' False White Fudge Labels
-----------------------------------------------------------------
BRITTANY HAAS, individually and on behalf of all others similarly
situated, Plaintiff v. ALDI INC., Defendant, Case No. 1:22-cv-00375
(N.D. Ill., January 22, 2022) is a class action against the
Defendant for breach of contract, negligent misrepresentation,
fraud, unjust enrichment, breaches of express warranty, implied
warranty of merchantability/fitness for a particular purpose and
Magnuson Moss Warranty Act, and violations of the Illinois Consumer
Fraud and Deceptive Business Practices Act and State Consumer Fraud
Acts.
According to the complaint, the Defendant is engaged in false,
deceptive, and misleading advertising, labeling, and marketing of
its pretzels under the Choceur brand. The representation of the
product as "White Fudge [Covered Pretzels]" is false, deceptive and
misleading because it lacks the type and amounts of ingredients
consumers expect in fudge. The value of the product that the
Plaintiff purchased was materially less than its value as
represented by the Defendant. Had the Plaintiff and Class members
known the truth, they would not have bought the product or would
have paid less for it, says the suit.
Aldi Inc. is an operator of supermarket chains, with its principal
place of business in Batavia, Illinois. [BN]
The Plaintiff is represented by:
Spencer Sheehan, Esq.
SHEEHAN & ASSOCIATES, P.C.
60 Cuttermill Rd., Ste. 409
Great Neck, NY 11021
Telephone: (516) 268-7080
E-mail: spencer@spencersheehan.com
AMERICAN HONDA: Final Approval Order, Judgment Entered in Banh Suit
-------------------------------------------------------------------
Judge R. Gary Klausner of the U.S. District Court for the Central
District of California issued a Final Approval Order and Judgment
in the case, JIMMY BANH, et al., on behalf of themselves and all
others similarly situated, Plaintiffs v. AMERICAN HONDA MOTOR CO.,
INC., a California corporation, Defendant, Case No.: 2:19-cv-5984
RGK (ASx) (C.D. Cal.).
On June 3, 2021, the Court entered an Order re: Plaintiffs' Renewed
Motion for Preliminary Approval of Class Action Settlement that
preliminarily approved the Settlement Agreement in this Litigation
and specified the manner in which the Settlement Administrator,
Defendant American Honda Motor Co., Inc. ("AHM"), was to provide
notice to the Settlement Class. The Settlement Agreement, which is
incorporated herein by reference, sets forth the terms and
conditions for a settlement and dismissal with prejudice of the
Litigation.
Following the dissemination of the Notice and the posting of the
Notice on the Settlement Website, the Settlement Class Members were
given an opportunity to: (i) submit timely requests for exclusion
from the Settlement Class, or (ii) object to the Settlement
Agreement (including the Class Counsel Fees and Expenses Award and
Named Plaintiffs' Service Award).
A Final Approval Hearing was held on Dec. 6, 2021, at 9 am, at
which time each person filing timely written objections to the
settlement and a notice of his/her intent to appear were given a
full opportunity to state any objections to the settlement.
Having fully considered the terms of the Settlement Agreement and
all submissions made in connection with it, Judge Klausner finds
that the Settlement Agreement and the settlement will be finally
approved as fair, reasonable, and adequate, and the Litigation
dismissed with prejudice as to all the Settlement Class Members who
have not excluded themselves from the Settlement Class, and
dismissed without prejudice as to all persons who timely and
validly excluded themselves from the Settlement Class as set forth
on the list of Opt-Outs. He further finds the Released Claims are
subject to the Release in accordance with Federal Rule of Civil
Procedure 54 and other applicable laws.
Accordingly, Judge Klause confirmed and made final the preliminary
certification of the Settlement Class in the Preliminary Approval
Order for purposes of the Settlement Agreement, as approved by the
Final Order and Judgment.
Pursuant to Federal Rule of Civil Procedure 23, he certified, for
settlement purposes only, a Settlement Class defined as follows:
"All current owners and lessees of the 2019-2020 Acura RDX (each a
Settlement Class Vehicles), who reside in, and who purchased or
leased their vehicles (other than for purposes of resale or
distribution) in, the United States, Puerto Rico, and all United
States territories, as well as former owners and lessees of
Settlement Class Vehicles who submit a Claim. The Settlement Class
also includes all United States military personnel who purchased a
Settlement Class Vehicle during military duty."
The proposed method for providing relief to Settlement Class
Members, as set forth in the Settlement Agreement, is finally
approved as fair, reasonable, adequate, just, and in the best
interests of the Settlement Class, and the Parties are ordered to
implement, provide, and comply with the requirements and relief
described in the Settlement Agreement in accordance with its terms.
For settlement purposes only, Judge Klausner confirmed the
appointment of AHM as Settlement Administrator and finds the
Settlement Administrator has fully discharged its duties as set
forth in the Settlement Agreement.
He also confirmed the appointment of the Class Counsel, for
settlement purposes only, of: (1) Hagens Berman Sobol Shapiro, LLP;
and (2) Goldenberg Schneider, LPA, and finds the Class Counsel
adequately represents the Settlement Class for purposes of entering
into and implementing the settlement and Settlement Agreement.
He further confirmed the appointment, for settlement purposes only,
of Named Plaintiffs Robert Bilbrey, Jimmy Banh, Mark Peoples, Jamal
Samaha, George Quinlan, Sarah Gravlin, Alexis Chisari, Michael
Brumer, Dave Jahsman, John Bartholomew, Vimal Lawrence, Mark Klein,
Adam Pryor, Srikarthik Subbarao, Daniel Allan, Paul Gonzales, Eric
Faden, and Kristen Gratton, for settlement purposes only, and finds
the Named Plaintiffs adequately represent the Settlement Class for
purposes of entering into and implementing the settlement and
Settlement Agreement.
Judge Klausner awarded Service Awards to the 18 Class
Representatives, totaling $120,000, and a Class Counsel Fees and
Expenses Award in the amounts of $2,260,794 (Fee Award) and
$477,701 (Expense Award) to the Class Counsel. These amounts will
be paid and distributed in accordance with the provisions of the
Settlement Agreement.
Judge Klausner granted the motion for final approval of all the
terms set forth in the Settlement Agreement, and overruled all
objections, as either untimely, not in accordance with the Court's
previous order, or on their merits. He directed consummation of all
of the Settlement Agreement's terms and provisions.
The list of Opt-Outs attached as Exhibit A is approved. Exhibit A
is a complete list of all Settlement Class Members who timely have
requested exclusion from the Settlement Class. The Opt-Outs will
neither share in nor be bound by the Final Order and Judgment,
subject to the terms of the Settlement Agreement.
Judge Klausner adjudged that the Named Plaintiffs and the
Settlement Class Members have conclusively compromised, settled,
dismissed, and released any and all claims against AHM and the
Releasees.
Judge Klausner dismissed on the merits and with prejudice the
Corrected Second Amended Class Action Complaint in the Litigation
without fees or costs except as provided in the Settlement
Agreement. Upon the Effective Date, the Named Plaintiffs and all
members of the Settlement Class who have not been excluded from the
settlement, whether or not they submit a Claim Form within the time
and in the manner provided for, will be barred from asserting any
Released Claim against AHM, and any such members of the Settlement
Class will have released any and all Released Claims against the
Releasees.
The Parties are authorized, without further approval from the
Court, to adopt such amendments, modifications and expansions of
the Settlement Agreement and all Exhibits thereto as: (i) will be
consistent in all material respects with the Final Order and
Judgment; and (ii) do not limit the rights of the Parties or
Settlement Class Members.
Judge Klausner found no reason for delay and directed the Clerk to
enter the Final Order and Judgment in accordance with the terms of
the Final Order and Judgment as of the date of the Order.
A full-text copy of the Court's Jan. 19, 2022 Final Approval Order
& Judgment is available at https://tinyurl.com/ybujfvvs from
Leagle.com.
STEVE W. BERMAN -- steve@hbsslaw.com -- (pro hac vice) SEAN R. MATT
-- steve@hbsslaw.com -- (pro hac vice) HAGENS BERMAN SOBOL SHAPIRO
LLP, in Seattle, Washington.
CHRISTOPHER R. PITOUN -- christopherp@hbsslaw.com -- HAGENS BERMAN
SOBOL SHAPIRO LLP, in Pasadena, California Counsel for the
Plaintiffs and Class [Additional Counsel listed on Signature Page]
BADIA SPICES: Spices Contain High Level of Heavy Metals, Hill Says
------------------------------------------------------------------
SEBRINA HILL, individually and on behalf of all others similarly
situated, Plaintiff v. BADIA SPICES, INC., Defendant, Case No.
1:22-cv-20258-BB (S.D. Fla., January 22, 2022) is a class action
against the Defendant for unjust enrichment, fraud, and violation
of the Ohio Consumers Sales Practices Act.
According to the complaint, the Defendant is engaged in deceptive
and misleading advertising, labeling, and marketing of its spices.
The Defendant allegedly failed to disclose that its spices contain
heavy metals, including arsenic, cadmium, and lead, at levels above
what is considered safe for children and adults. Had the Plaintiff
and Class members known the truth, they would not have bought the
spices.
Badia Spices, Inc. is a manufacturer of spices and seasonings, with
its principal place of business at 1400 NW 93rd Avenue, Miami,
Florida. [BN]
The Plaintiff is represented by:
Jacob Phillips, Esq.
NORMAND PLLC
3165 McCrory Pl., Ste. 175
Orlando, FL 32803
Telephone: (407) 603-6031
E-mail: Jacob.phillips@normandpllc.com
- and –
Jonathan Shub, Esq.
Kevin Laukaitis, Esq.
SHUB LAW FIRM LLC
134 Kings Highway E., 2nd Floor
Haddonfield, NJ 08033
Telephone: (856) 772-7200
Facsimile: (856) 210-9088
E-mail: jshub@shublawyers.com
klaukaitis@shublawyers.com
- and –
Gary E. Mason, Esq.
MASON LIETZ & KLINGER, LLP
5101 Wisconsin Avenue NW, Suite 305
Washington, DC 20016
Telephone: (202) 640-1168
Facsimile: (202) 429-2294
E-mail: gmason@masonllp.com
- and –
Gary M. Klinger, Esq.
MASON LIETZ & KLINGER, LLP
227 W. Monroe Street, Suite 2100
Chicago, IL 60606
Telephone: (202) 640-1168
Facsimile: (202) 429-2294
E-mail: gklinger@masonllp.com
BEIERSDORF INC: Sunscreen Contains Carcinogen, Lawsuit Claims
-------------------------------------------------------------
Erin Shaak, writing for ClassAction.org, reports that Beiersdorf,
Inc. and Bayer Healthcare, LLC face a proposed class action that
claims their Coppertone Defend and Care Whipped Ultra Hydrate SPF
50 sunscreen contains an undisclosed carcinogen.
The 26-page case echoes several other lawsuits filed in the wake of
a study published by analytical pharmacy Valisure LLC, who said it
had discovered concerning levels of benzene, a substance linked to
leukemia and other cancers, in various sunscreen products,
including Coppertone Defend and Care Whipped Ultra Hydrate SPF 50.
According to the case, consumers who purchased the Coppertone
product were misled by the sunscreen's packaging and labeling,
which includes no mention of the presence of benzene. The suit says
consumers have lost the benefit of their bargain by purchasing a
product that is unsafe for use and "entirely worthless" due to its
contamination with the toxic substance.
The lawsuit relays that scientific studies have shown there to be
no safe level of benzene exposure, especially when the "incredibly
dangerous" substance is applied to the skin, where it can be easily
absorbed into the bloodstream. The presence of benzene in sunscreen
is "particularly dangerous," the suit says, given the application
of sunscreen typically involves using a significant amount of the
product and reapplying it later. According to the case, even a low
amount of benzene in a sunscreen can result in a high level of
exposure.
In light of the foregoing, Valisure's May 2021 citizen petition to
the U.S. Food and Drug Administration (FDA) is "particularly
concerning," the lawsuit argues. Per the complaint, Valisure
detected benzene in numerous sunscreen products, including the
Coppertone Defend and Care sunscreen at issue in this case.
The level of benzene found in the Coppertone product, notably, was
among the lowest of the sunscreens in which benzene was detected by
Valisure. According to Valisure, a product with benzene levels of
less than 0.10 parts per million "warrants further investigation
but is likely of less concern than products with a defined value of
0.10 ppm or higher."
Nevertheless, the lawsuit states that according to the FDA, benzene
is a "Class 1 solvent" that should never be used in the manufacture
of drug products, due to its "unacceptable toxicity," unless its
use is unavoidable in order to achieve the product's therapeutic
benefits. The suit notes that because most of the sunscreens tested
by Valisure did not contain benzene, its presence in sunscreen
products is not unavoidable.
The case claims that reasonable consumers are concerned about what
they put into and onto their bodies and thus would not have
purchased the Coppertone sunscreen had they known it contained
benzene. [GN]
BENTLEY PROPERTIES: Filing for Class Cert. Extended to May 23
-------------------------------------------------------------
In the class action lawsuit captioned as KALEE DEARDORFF, v.
BENTLEY PROPERTIES LTD., Case No. 3:21-cv-05620-BJR (W.D. Wash.),
the Hon. Judge Barbara Jacobs Rothstein entered an order granting
the parties' stipulated motion to extend the deadline for
Plaintiff's motion for class certification; and
The Plaintiff's deadline for filing a motion for class
certification is extended to May 23, 2022, says Judge Rothstein.
A copy of the Court's order dated Jan. 25, 2022 is available from
PacerMonitor.com at https://bit.ly/3r5BelG at no extra charge.[CC]
BONOBOS INC: Averts Class Action Over Alleged 2020 Data Breach
--------------------------------------------------------------
Sara Merken, writing for Reuters, reports that e-commerce menswear
company Bonobos Inc on Jan. 19 won its bid to dismiss a lawsuit
related to a 2020 data breach, as a Manhattan federal judge found a
New York online shopper lacks standing to bring the claims.
U.S. District Judge Jesse Furman tossed the proposed class action
against the New York-based subsidiary of Walmart Inc, in a decision
in which he weighed factors related to showing a "substantial" risk
of identity theft or fraud to pursue a data breach lawsuit in
federal court.
"Put simply, given the age and nature of the data, the risk of
identity theft or fraud is too remote to constitute injury in
fact," the judge wrote.
Plaintiff Bradley Cooper of New York filed his lawsuit last year
alleging hackers accessed a Bonobos external cloud backup database
in August 2020, stole "some or all of" its seven million online
customers' personal information and posted the data to a "hacker
website forum." Cooper had entered his personal data in 2013.
Bonobos sent notices to customers, including Cooper, in January
2021, the complaint said.
The judge in the Jan. 19 decision evaluated Cooper's claims of
injury against factors including whether the data was intentionally
stolen, if the data has been misused and whether the information is
"sensitive" in nature.
Ruling in Bonobos' favor, he found the plaintiff "fails to allege
any injuries that are 'certainly impending' or based on a
'substantial risk that the harm will occur.'"
A Walmart representative said in an email: "We appreciate the
court's thorough review and thoughtful decision dismissing Mr.
Cooper's case. We have always taken our customers' privacy
seriously and will continue to do so." A lawyer for the plaintiff
from George Gesten McDonald did not reply to a request for
comment.
The case is Cooper v. Bonobos Inc, U.S. District Court for the
Southern District of New York, No. 1:21-cv-00854.
For the plaintiff: Lori Feldman of George Gesten McDonald
For Bonobos: Michelle Kisloff of Hogan Lovells [GN]
BONOBOS INC: Court Dismisses Cooper Class Suit Without Prejudice
----------------------------------------------------------------
In the case, BRADLEY COOPER, on behalf of himself and all others
similarly situated, Plaintiff v. BONOBOS, INC., Defendant, Case No.
21-CV-854 (JMF) (S.D.N.Y.), Judge Jesse M. Furman of the U.S.
District Court for the Southern District of New York dismissed
Cooper's claims without prejudice for lack of subject-matter
jurisdiction.
I. Background
Bonobos owns and operates a chain of men's clothing stores that
does business both online and through brick-and-mortar stores
throughout the United States. On June 28, 2013, Cooper purchased
approximately $170 of items through Bonobos' website. To complete
the order, he was required to enter his billing and shipping
information, including his name, address, email address, telephone
number, and credit card information.
Over six years later, in August 2020, a group of hackers known as
"Shiny Hunters" accessed Bonobos' cloud backup database and stole
the personal information of some or all of Bonobos' seven million
online customers. Thereafter, the hackers posted the stolen
information to a "hacker website forum." The leaked information
included customers' addresses, telephone numbers, email addresses,
order history, Internet Protocol ("IP") addresses, encrypted
passwords, and partial credit card numbers (that is, the last four
digits).
In January 2021, Bonobos sent notices to affected customers,
including Cooper, stating that "an unauthorized third party may
have been able to view some of your account details, including your
contact information and encrypted password." The notice explained
that the user's "encrypted password was protected so your actual
password was not visible" and that "payment card information was
not affected by this issue." The notice further advised that
Bonobos was "resetting your password and had logged you out of your
account."
In response to the message, Cooper changed the password to his
Bonobos account, placed a security freeze on his credit through
Experian, purchased credit repair and protection services for $85
per month, and purchased a robocall-blocking subscription for
$19.99. Cooper alleges that he has also "spent time dealing with
the increased and unwanted spam, texts, telephone calls, and emails
that he continues to receive after the data breach."
Cooper brings suit on behalf of a putative class of "all residents
of the United States of America whose private information was
compromised in the data breach and who made purchases from the
Defendant prior to June 2018." He brings claims for negligence,
violations of Section 349 of the New York General Business Law, and
unjust enrichment.
Bonobos now moves, pursuant to Rule 12(b)(1) and (6) of the Federal
Rules of Civil Procedure, to dismiss the Complaint for lack of
subject-matter jurisdiction and for failure to state a claim.
II. Discussion
To bring a lawsuit in federal court, a plaintiff must have
standing, which requires a showing that he or she suffered an
"injury in fact." At a minimum, that means a plaintiff must allege
and prove that, as a result of the defendant's actions, he or she
faces a "substantial risk" of some harm.
The question presented in the putative class action -- brought by
Plaintiff Cooper against Defendant Bonobos, a men's clothing store
-- is one with which many courts have grappled in recent years:
Whether and when someone whose personal information was stolen as
part of a data breach can demonstrate a sufficiently "substantial"
risk of identity theft or fraud to bring a lawsuit in federal
court.
In general, the answer to that question turns on evaluation of
several factors: Whether the data was intentionally stolen or
otherwise compromised; whether any of the stolen data has already
been misused; and whether the stolen data is of a "sensitive"
nature and presents a high risk of identity theft or fraud, the
paradigmatic example being a Social Security number.
Applying these factors in the case, Judge Furman concludes that
Cooper lacks standing to bring claims against Bonobos relating to a
2020 data breach. First, he finds that Cooper does not allege that
any of his accounts, or the accounts of other Bonobos consumers for
that matter, were compromised in this manner. Nor does he allege
that, in August 2020 when the Bonobos hack occurred, he even used
the password that he had used for Bonobos in June 2013 on other
websites.
Second, Cooper fails to allege that his credit card number remained
unchanged in the nearly seven years between his Bonobos purchase
and the hack. Moreover, assuming arguendo that the number did
remain the same, Cooper could have taken the simple step upon
receiving notice of the hack of canceling the card, "'effectively
eliminating the risk of credit card fraud in the future.'" Finally,
the data stolen in the Bonobos data breach is, absent plausible
allegations of misuse, insufficient to demonstrate that Cooper is
at a substantial risk of identity theft or fraud. Put simply, given
the nature and age of the data, the likelihood that its exposure
would result in harm to Cooper is too remote to support standing.
Thus, Cooper does not, and cannot, establish standing for his
claims based on the increased risk of identity theft or fraud. Put
simply, given the age and nature of the data, the risk of identity
theft or fraud is too remote to constitute injury in fact.
Accordingly, Judge Furman must and does dismiss the case.
III. Conclusion
Judge Furman concludes that Cooper fails to allege any injuries
that are "certainly impending" or based on a "substantial risk that
the harm will occur." Thus, Cooper's claims must be and are
dismissed without prejudice for lack of subject-matter
jurisdiction, and the Court need not -- indeed, may not -- address
Bonobos' other arguments.
Moreover, although leave to amend should be freely given "when
justice so requires," it is "within the sound discretion of the
district court to grant or deny leave to amend." In the case,
Cooper already amended his pleadings once after Bonobos moved to
dismiss, and he "fails to show how amendment could demonstrate a
cognizable injury suffice to support Article III standing. Thus,
any further amendment would be futile."
The Clerk of Court is directed to terminate ECF No. 34, to enter
judgment consistent with the Opinion and Order, and to close the
case.
A full-text copy of the Court's Jan. 19, 2022 Opinion & Order is
available at https://tinyurl.com/mr3vyjcs from Leagle.com.
BOOKS OF WONDER: Miller Files ADA Suit in S.D. New York
-------------------------------------------------------
A class action lawsuit has been filed against Books Of Wonder, Inc.
The case is styled as Kimberly Miller, on behalf of herself and all
other persons similarly situated v. Books Of Wonder, Inc., Case No.
1:22-cv-00695 (S.D.N.Y., Jan. 26, 2022).
The lawsuit is brought over alleged violation of the Americans with
Disabilities Act.
Books Of Wonder -- https://booksofwonder.com/ -- is a publishing
company based out in New York.[BN]
The Plaintiff is represented by:
Michael A. LaBollita, Esq.
GOTTLIEB & ASSOCIATES
150 E. 18th Street, Suite Phr
New York, NY 10003
Phone: (212) 228-9795
Email: michael@gottlieb.legal
BRIAD RESTAURANT: Andersen's $550K Class Deal Wins Prelim. Approval
-------------------------------------------------------------------
In the case, JEFFREY ANDERSEN, an individual, on behalf of himself
and all similarly situated individuals, Plaintiff v. BRIAD
RESTAURANT GROUP, LLC, Defendant, Case No. 2:14-cv-00786-GMN-BNW
(D. Nev.), Judge Gloria M. Navarro of the U.S. District Court for
the District of Nevada granted the Parties' Joint Motion for
Preliminary Approval of Class Action Settlement.
I. Background
The case arises out of the Defendant's alleged failure to pay the
proper minimum wage pursuant to Nevada's Minimum Wage Amendment,
Nev. Const. art. XV, Section 16 (the "MWA"). During all relevant
times, the Defendant owned and operated approximately eight TGI
Friday's Restaurants in Nevada. The Plaintiff alleges that the
action "is a result of the Defendant's the failure to pay him and
other similarly-situated employees who are members of the Class the
lawful minimum wage, because the Defendant has improperly claimed
eligibility to compensate employees at a reduced minimum wage rate
under the MWA."
The Plaintiff filed the instant Class Action Complaint against the
Defendant, alleging three causes of action: (1) violation of Nev.
Const. art. XV, Section 16; (2) violation of Nev. Const. art. XV,
Section 16 and NAC 608.102; and (3) violation of Nev. Const. art.
XV, Section 16 and NAC 608.104.
On Feb. 24, 2015, the Court dismissed the Plaintiff's second and
third claims for relief with prejudice. It then certified the
following question to the Nevada Supreme Court: "Whether an
employee must actually enroll in health benefits offered by an
employer before the employer may pay that employee at the
lower-tier wage under the MWA." (Order, ECF No. 119). In MDC
Restaurants, LLC v. Eighth Judicial District Court, ("MDC I"), the
Nevada Supreme Court answered that question, holding that "under
the MWA, health benefits need only be offered or made available for
the employer to pay the lower-tier wage."
On Dec. 16, 2016, the Defendant filed its Motion for Summary
Judgment on the Plaintiff's only remaining cause of action --
violation of the MWA -- on the grounds that the "Plaintiff was paid
at least $7.25 per hour" and that the Plaintiff "was offered health
insurance by the Defendant." The Court granted the Defendant's
Motion for Summary Judgment and denied the Plaintiff's Motion to
Certify Class as moot. The Clerk of Court was instructed to enter
judgment in favor of the Defendant.
The Plaintiff appealed the Court's decision, and during the
appeal's pendency, the Nevada Supreme Court issued its decision in
MDC Rests., LLC v. Eighth Jud. Dist. Court, 419 P.3d 148, 148 (Nev.
2018) ("MDC II"). In MDC II, the Nevada Supreme Court addressed
"whether there is some minimum quality or substance of health
insurance that an employer must provide for the employer to pay the
lower-tier minimum wage under the MWA."
The Ninth Circuit remanded the case for reconsideration. The Court
subsequently granted the Plaintiff's Motion to Certify Class,
defining the class as: "All current and former employees of
Defendant at its Nevada locations who were paid less than $8.25 per
hour at any time since May 19, 2012, but were not provided with
qualifying health benefits pursuant to Nev. Const. art. XV, sec.
16., excluding those employees who executed the arbitration
agreements unless the employee was employed with Defendant before
May 19, 2014, and did not execute an arbitration agreement until
after May 19, 2014."
On July 28, 2021, the Plaintiff and the Defendant reached a
Settlement Agreement after arms-length negotiations and
subsequently submitted the instant Joint Motion for Preliminary
Approval of Class Action Settlement. Under the proposed settlement,
Defendant agrees to pay the following: $550,000 (Settlement Amount)
on behalf of the Settlement Cass for, inter alia, a complete
specific release of the claims of the Plaintiff and members of the
Settlement Class who do not exclude themselves from the settlement.
In exchange, the Plaintiff, on behalf of the Settlement Class,
agrees to dismiss the underlying case and release the Defendant
from any and all claims arising from or relating to his employment,
except for any "workers' compensation claims or any claims that may
not be released under applicable law."
II. Discussion
The instant Motion seeks preliminary approval of the parties'
proposed settlement and requests that the Court schedules a final
fairness hearing. The parties assert that the proposed settlement
is fair, adequate, and reasonable. Additionally, they claim that
the proposed method of class notice is appropriate.
Judge Navarro first analyzes whether the proposed settlement is
reasonable, before turning to the appropriateness of the proposed
notice.
A. Fairness, Reasonableness, and Adequacy of Proposed Settlement
The factors in a court's fairness assessment will naturally vary
from case to case, but courts in the Ninth Circuit generally must
weigh the Churchill factors: (1) the strength of the plaintiff's
case; (2) the risk, expense, complexity and likely duration of
further litigation; (3) the risk of maintaining class action status
throughout the trial; (4) the amount offered in settlement; (5) the
extent of discovery completed and the stage of the proceedings; (6)
the experience and views of counsel; (7) the presence of a
governmental participant; and (8) the reaction of the class members
of the proposed settlement.
Judge Navarro finds that (i) because settlement eliminates the
lengthy process and further litigation may not improve the outcome,
the first two factors weigh in favor of granting preliminary
approval; (ii) the third Churchill factor weighs in favor of
granting preliminary approval because she is satisfied that there
are risks associated with pursuing and maintaining the instant
class action, given the uncertainty of the suit; (iii) given that
the settlement amount falls within the accepted range of prior
approved settlements in wage and hour class actions, at this stage,
she is satisfied that the amount offered in settlement is within
the range of reasonableness; (iv) based upon the litigation
history, the extent of discovery completed, and the current stage
of the proceedings, that the "counsel had a good grasp on the
merits of their case before settlement talks began," and therefore,
the fifth factor weighs in favor of granting preliminary approval;
(v) she is satisfied that the Plaintiff's Counsel has adequate
experience including personal involvement in complex class action
suits and settlements; and (vi) final Churchill factor is
inapplicable at this time.
B. Class Representative Service Awards
The proposed settlement provides that, subject to Court approval,
the Class Counsel will petition the Court for "an award of a Class
Representative Payment in the amount of $5,000)" to be paid out of
the gross settlement amount, which the Defendant will not oppose.
Because the Plaintiff will separately apply for the service award
at the time of seeking final approval of the proposed class action
settlement, Judge Navarro does not reach a determination as to the
fairness of the proposed Class Representative Service Award.
C. Proposed Class Notice and Administration
Pursuant to the proposed settlement, the parties advise that the
settlement will be administered by Simpluris, Inc., "an experienced
class action settlement administrator" that also conducted the
parties' first opt-out notice in the case. Within 10 days following
preliminary approval of the settlement, the "Defendant will provide
to the Settlement Administrator the names, last known addresses,
and telephone numbers, Social Security numbers, and Covered Hours
for all Class Members." No later than 10 business days after
receiving the data, "the Settlement Administrator will mail the
Class Notice Packets to all Class Members via first-class regular
U.S. Mail." For all returned direct mail, the Settlement
Administrator will perform one skip trace as outlined in the
Settlement Agreement.
Because mail delivery is an appropriate form of delivery, Judge
Navarro finds the method of notice is sufficient. Furthermore,
given the completeness of the Notice and the acceptable proposed
form of delivery, she approves the parties' notice mechanism as
sufficient.
III. Conclusion
Judge Navarro granted the Joint Motion for Preliminary Approval.
The proposed Settlement Agreement is preliminarily approved as fair
and adequate.
Within 10 days of the Order, the Defendant will provide to the
Settlement Administrator, Simpluris, Inc., the names, last known
addresses, and telephone numbers, Social Security numbers, and
Covered Hours for all Class Members.
Within 10 days of receiving the above information from the
Defendant, Simpluris Inc. will direct notice to the class members
via first-class regular mail, which includes the Class Notice and
Claim Form.
The deadline for class members to complete, sign, and return a
Claim Form or Opt-Out will be no later than 60 days after the
notice of Settlement is mailed.
Within 10 days of the deadline to submit Claim Forms and Opt-Outs,
Simpluris, Inc. will provide the parties with a complete and
accurate list of all claimants, participating class members, and
non-participating class members.
Within seven days after Simpluris, Inc. notifies the parties of the
number of valid Opt-Outs it received, the Defendant will notify
Class Counsel and the Court whether it plans to exercise its right
to rescind the settlement pursuant to Section III.D.6 of the
Settlement Agreement.
If the Defendant does not exercise its right to rescind the
settlement, the Plaintiff will file a Motion for Final Approval of
Class Settlement by April 28, 2022.
The deadline for the Class Counsel to file a motion for attorneys'
fees and expenses will be 30 days after entry of the Order.
The deadline for the Class Counsel to file a motion for the class
representative service award will be 30 days after entry of the
Order.
A final fairness hearing will take place on May 19, 2022, at 10:00
a.m., in Las Vegas, Courtroom 7D before Judge Gloria M. Navarro.
The Class Counsels' motions for class representatives' service
award and attorneys' fees and expenses will be considered at the
final fairness hearing.
A full-text copy of the Court's Jan. 19, 2022 Order is available at
https://tinyurl.com/bd7r4us3 from Leagle.com.
BRIDGECREST ACCEPTANCE: Judgment on Pleadings Bid in Canady Denied
------------------------------------------------------------------
In the case, Tonya Canady, Plaintiff v. Bridgecrest Acceptance
Corporation, Defendant, Case No. CV-19-04738-PHX-DWL (D. Ariz.),
Judge Dominic W. Lanza of the U.S. District Court for the District
of Arizona denies Bridgecrest's motion for judgment on the
pleadings.
I. Background
In the putative class action, Plaintiff Canady alleges that
Defendant Bridgecrest violated the Telephone Communications
Protection Act, 47 U.S.C. Section 227 et seq. ("TCPA"), by placing
calls to her cell phone throughout 2018 and 2019 without her
consent while using an artificial or automated voice. Such calls
are often referred to as robocalls.
In 2020, while the case was pending, the Supreme Court decided Barr
v. Am. Ass'n of Political Consultants, Inc., 140 S.Ct. 2335 (2020).
In Barr, a group of "organizations that participate in the
political system" filed a declaratory judgment action in which they
argued that Section 277(b)(1)(A)(iii) of the TCPA -- the same
provision Bridgecrest is accused of violating in the case -- is
unconstitutional. The plaintiffs' theory was that because Congress
had amended the TCPA in 2015 to add an exception that authorized
robocalls for one specific purpose (i.e., collecting government
debt), the addition of this exception meant that the post-2015
version of the TCPA favored some categories of speech over others,
in violation of the First Amendment, and the only remedy was "to
invalidate the entire robocall restriction."
Although the Supreme Court agreed with the plaintiffs that "the
2015 government-debt exception created an unconstitutional
exception to the robocall restriction," it rejected the plaintiffs'
proposed remedy, holding that "the correct result in the case is to
sever the 2015 government-debt exception and leave in place the
longstanding robocall restriction."
Based in part on Barr, Bridgecrest has now filed a motion for
judgment on the pleadings.
II. Discussion
I. The TCPA In Its Present Form
In a nutshell, Bridgecrest argues that (1) the TCPA is
unconstitutional in its present form because it contains seven
additional content-based exceptions that were not addressed in
Barr, none of which survives strict scrutiny, and the exceptions
cannot be severed, both because they differ from the single
exception that was severed in Barr and because the appellate courts
possess exclusive jurisdiction to entertain challenges to some of
the exceptions; and (2) alternatively, the TCPA was
unconstitutional between 2015 (when the government-debt exception
was enacted) and July 2020 (when it was severed in Barr), so no
liability can arise from the alleged violations in this case
because they occurred during the period of unconstitutionality.
In response, Canady argues that the post-Barr version of the TCPA
is constitutional. First, Canady argues that Bridgecrest forfeited
any claim that the seven challenged exceptions are content-based
restrictions that fail strict scrutiny because Bridgecrest "just
declared" this to be so without providing any reasoned argument or
analysis. Next, she argues that the Court lacks jurisdiction under
28 U.S.C. Section 2342(1) to consider any challenge to the six
FCC-promulgated exceptions and restrictions because "Bridgecrest's
argument requires a threshold determination as to the validity of
the FCC's Orders, which is precisely the sort of collateral attack
prohibited by" that statute.
Alternatively, Canady argues that "even assuming the FCC
regulations at issue do create content-based restrictions that fail
strict scrutiny," they necessarily must be subject to severance
because "to hold otherwise would allow an agency acting pursuant to
a statute to effectively repeal a statute, which the agency has no
power to do." Finally, she argues that Bridgecrest's challenge to
the emergency exception fails because (1) it is foreclosed by the
Ninth Circuit's decisions in Gomez v. Campbell-Ewald Co., 768 F.3d
871 (9th Cir. 2014), and Moser v. FCC, 46 F.3d 970 (9th Cir. 1995),
both of which upheld the constitutionality of the robocall
restriction despite the presence of the emergency exception; and
alternatively (2) the emergency exception survives strict scrutiny
on the merits because it is narrowly tailored to serve a compelling
governmental interest.
Bridgecrest's motion is opposed not only by Canady but also by the
United States, which has intervened for the limited purpose of
defending the TCPA's constitutionality. After Bridgecrest filed its
motion for judgment on the pleadings, the Court issued an order
notifying the Attorney General of the United States "that a
constitutional challenge to a federal statute has been presented in
the case." In response, and after obtaining an extension of time,
the United States filed a memorandum in support of the
constitutionality of the TCPA.
With respect to Bridgecrest's challenge to the current iteration of
the statute, the United States argues the Court lacks jurisdiction
under 28 U.S.C. Section 2342(1) to consider "the merits of
Bridgecrest's challenge to the FCC's exercise of its rulemaking
authority." As for Bridgecrest's challenge to the emergency
exception, the United States argues that this challenge fails
because (1) that exception "has been a part of the TCPA since its
passage, but no court has ever suggested that the TCPA should be
struck down on that basis"; (2) at any rate, the exception is not
content-based; and (3) alternatively, the exception would survive
strict scrutiny even if it were content-based.
Judge Lanza holds that Bridgecrest's challenge to the
constitutionality of the TCPA in its present form is unavailing.
A. FCC Exceptions
To the extent Bridgecrest's challenge is premised on the presence
of the six exceptions promulgated by the FCC, Judge Lanza agrees
with Canady and the United States that it lacks jurisdiction to
consider that aspect of the challenge. He concludes that Section
2342(1) is implicated by the sort of challenge that Bridgecrest
seeks to raise in the case and thus divests the Court of
jurisdiction to resolve that challenge. As an initial matter,
although Barr held that this exception, which was added in 2015,
should be severed. Bridgecrest is raising its arguments related to
the FCC-promulgated exceptions in a defensive manner, the Ninth
Circuit has clarified that Section 2342's "jurisdictional
limitations apply as much as to affirmative defenses as to
offensive claims."
The more difficult question is whether Bridgecrest is, in fact,
asking the Court to "enjoin, set aside, suspend (in whole or in
part), or determine the validity of" the FCC orders in question.
Bridgecrest contends that it isn't making such a request because
the ultimate relief it seeks in the case -- a finding that Section
227(b)(1)(A)(iii) as a whole can't be enforced, due to the presence
of unconstitutional content-based restrictions on speech --
wouldn't invalidate the FCC orders in question. Instead,
Bridgecrest contends that the FCC would be free to continue
enforcing those orders after the decision in this case, and thus
calls falling within the FCC's excepted categories would continue
to be lawful, and the only effect of the decision would be to
clarify that other categories of calls falling outside the FCC's
excepted categories would be lawful, too.
Although this argument has surface appeal, Judge Lanza holds that
it fails under closer scrutiny. To get where Bridgecrest wants it
to go, the Court would need to make the following determinations:
(1) the TCPA qualifies as a content-based restriction on speech due
to the presence of the FCC-promulgated exceptions; (2) those
exceptions "collectively and individually" fail strict scrutiny;
and (3) those exceptions "cannot be severed to save the statute."
It is difficult to understand how the second step of this analysis
could be viewed as anything other than "determining the validity"
of the FCC-promulgated exceptions, to put it in the parlance of
Section 2342(1). To be sure, Bridgecrest's preferred remedy, during
the third step of the analysis, would be to declare that Section
227(b)(1)(A)(iii)'s liability provision is invalid (rather than the
alternative of severing the FCC-promulgated exceptions), but the
Court could only get to that step after evaluating the validity of
the exceptions, which is something that Section 2342(1) forbids.
Finally, decisions from outside the Ninth Circuit, although
obviously not binding in the present case, provide further support
for the conclusion that Bridgecrest's arguments regarding the
FCC-created exceptions fall outside this Court's jurisdiction. The
parties' briefs identify three decisions -- Drake v. FirstKey
Homes, LLC, 439 F.Supp.3d 1313, 1327 n.6 (N.D. Ga. 2020); Greenley
v. Laborers' Int'l Union of N. Am., 271 F.Supp.3d 1128, 1149 (D.
Minn. 2017); and Mejia v. Time Warner Cable Inc., 2017 WL 3278926,
*15 n.7 (S.D.N.Y. 2017) -- in which TCPA defendants sought to raise
constitutional challenges based on the existence of content-based
exceptions created by the FCC, and in all three cases, the court
concluded that the challenge was barred (or likely barred) by
Section 2342(1).
2. Emergency Exception
Because the Court lacks jurisdiction to consider Bridgecrest's
First Amendment challenge to the extent it is premised on the FCC
exceptions, the sole remaining basis for that challenge is the
statutory exception for calls "made for emergency purposes." As
noted, Bridgecrest's theory is that this exception has all of "the
hallmarks of content-specificity" under Barr, and therefore
triggers strict scrutiny, but cannot survive strict scrutiny due to
its vagueness and over- and under-inclusivity.
As an initial matter, Judge Lanza disagrees with Canady that the
Ninth Circuit's decisions in Gomez v. Campbell-Ewald Co., 768 F.3d
871 (9th Cir. 2014), and Moser v. FCC, 46 F.3d 970 (9th Cir. 1995),
are dispositive of this challenge. Although both decisions rejected
constitutional challenges to the TCPA, he says, neither decision
specifically addressed whether the presence of the emergency
exception in Section 227(b)(1)(A)(iii) created any First Amendment
issues.
Nevertheless, on the merits, Bridgecrest's challenge is unavailing.
Even assuming, as Bridgecrest asserts but the United States
disputes, that the emergency exception qualifies as a content-based
restriction, Judge Lanza says, this simply means that the
government must "prove that the restriction furthers a compelling
interest and is narrowly tailored to achieve that interest."
As for narrow tailoring, Judge Lanza substantially agrees with
analysis of the emergency exception in Brickman v. Facebook, Inc.,
230 F.Supp.3d 1036 (N.D. Cal. 2017). There, the court concluded,
among other things, that "Congress carefully balanced the interests
in the health and safety of consumers with the interests in
protecting privacy and determined the emergency call exception was
carefully tailored to address both interests." Other courts have
reached the same conclusion. No court, at least according to the
parties' briefs, has reached a contrary conclusion.
Finally, even assuming for the sake of argument that the presence
of the emergency exception were alone sufficient to transform
Section 227(b)(1)(A)(iii) into an impermissible content-based
restriction on speech, Judge Lanza finds that this would not end
the inquiry -- the final step would be to assess, as the Supreme
Court assessed in Barr, whether the solution is to sever the
offending exception (and thus return Section 227(b)(1)(A)(iii) to
content-neutrality) or to declare the entire provision invalid.
However, the sole argument related to severance in any of
Bridgecrest's briefs is that it would be impossible to sever all
seven of the challenged exceptions (i.e., the emergency exception
plus the six FCC-created exceptions), both because "nothing in Barr
mandates that a statute containing numerous content-based
exceptions should always survive constitutional scrutiny" and
because the Court would face jurisdictional limitations on its
ability to sever the FCC-created exceptions. Nowhere does
Bridgecrest provide any reasoned argument as to whether the
emergency exception alone may be severed. Judge Lanza, thus, finds
this argument to be forfeited for purposes of the present motion.
B. The TCPA Between 2015 And July 2020
Bridgecrest's final argument is that even if the TCPA is
constitutional in its current form, "the Court still lacks
subject-matter jurisdiction over Canady's claims because the TCPA's
robocall restriction was unconstitutional when the alleged conduct
occurred." According to Bridgecrest, the robocall restriction in
TCPA became unconstitutional in 2015, when Congress amended it to
add the government-debt exception, and "only became constitutional
after the Supreme Court in Barr severed the government-debt
exception.
In response, Canady argues that the "longstanding rule" applied by
the Supreme Court is that an unconstitutional statutory amendment
is a nullity and void when enacted, so the 2015 enactment of the
government-debt exception "had no impact (temporary or otherwise)
on the validity of the robocall restriction." She also argues that
"Supreme Court precedent requires the Court to give retroactive
effect to" constitutional decisions, including decisions (like
Barr) involving severance.
As for footnote 12, Canady argues that it has the force of law,
even though it appeared in the three-Justice plurality opinion,
because four other Justices "agreed with the plurality on
severability and concurred in the judgment." Finally, she notes
that 20 district courts, as well as the Sixth Circuit, have held
that defendants may be held liable for robocalls placed between
2015 and 2020 and two of the four contrary decisions cited by
Bridgecrest have since been reversed.
Judge Lanza holds that the issue requires little discussion. Dozens
of district courts and at least one Circuit court have issued
opinions rejecting Bridgecrest's contention that nobody can be held
liable under the TCPA for robocalls placed between the enactment of
the government-debt exception in 2015 and the issuance of Barr in
July 2020. Judge Lanza agrees with those opinions and adopts their
analysis and reasoning.
III. Conclusion
For the foregoing reasons, Judge Lanza rejects Bridgecrest's
challenges to the TCPA and denies its motion for judgment on the
pleadings.
A full-text copy of the Court's Jan. 21, 2022 Order is available at
https://tinyurl.com/mtwmhrtv from Leagle.com.
BRIGHT HEALTH: Bernstein Liebhard Reminds of March 7 Deadline
-------------------------------------------------------------
Bernstein Liebhard LLP on Jan. 19 disclosed that a securities class
action lawsuit has been filed on behalf of investors who purchased
or acquired the common stock of Bright Health Group, Inc. either in
connection with the Company's June 24, 2021 IPO or between June 24,
2021 and November 10, 2021, inclusive (the "Class Period"). The
lawsuit was filed in the United States District Court for the
Eastern District of New York and alleges violations of the
Securities Act of 1933 and the Securities Exchange Act of 1934.
If you purchased or otherwise acquired Bright Health common stock,
and/or would like to discuss your legal rights and options, please
visit Bright Health Group, Inc. Shareholder Class Action Lawsuit or
contact Lisa Sriken toll free at (877) 779-1414 or
lsriken@bernlieb.com.
Bright Health is an integrated care delivery company that engages
in the delivery and financing of health insurance plans in the U.S.
The Company offers individual and family, Medicare, and employer
insurance plans.
According to the complaint, the Offering Documents were negligently
prepared and, as a result, contained untrue statements of material
fact or omitted to state other facts necessary to make the
statements made not misleading and were not prepared in accordance
with the rules and regulations governing their preparation.
Additionally, throughout the Class Period, Defendants made
materially false and misleading statements regarding the Company's
business, operations, and compliance policies. Specifically, the
Offering Documents and Defendants made false and/or misleading
statements and/or failed to disclose that: (i) Bright Health had
overstated its post-IPO business and financial prospects; (ii) the
Company was ill-equipped to handle the impact of COVID-19-related
costs; (iii) the Company was experiencing a decline in premium
revenue because of a failure relating to risk adjustment; (iv) all
the foregoing was reasonably likely to have a material negative
impact on Bright Health's business and financial condition; and (v)
as a result, the Offering Documents and Defendants' public
statements throughout the Class Period were materially false and/or
misleading and failed to state information required to be stated
therein.
On November 11, 2021, Bright Health reported its third quarter 2021
results. Among other results, Bright Health reported earnings per
share of -$0.48 as calculated under U.S. generally accepted
accounting principles, missing consensus estimates by $0.31. Bright
Health also reported a sharp rise in in the Company's medical cost
ratio ("MCR"), advising investors that its MCR "for the third
quarter of 2021 was 103.0%, which includes a 540 basis point
unfavorable impact from COVID-19 related costs and a 900 basis
point unfavorable impact primarily from a cumulative reduction in
premium revenue due to an inability to capture risk adjustment on
newly added lives."
On this news, Bright Health's stock price fell $2.36 per share, or
32.33%, to close at $4.94 per share on November 11, 2021. As of the
time the Complaint was filed, the price of Bright Health common
stock trades below the $18.00 per share Offering price.
If you wish to serve as lead plaintiff, you must move the Court no
later than March 7, 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 Bright Health common stock,
and/or would like to discuss your legal rights and options please
visit
https://www.bernlieb.com/cases/brighthealthgroupinc-bhg-shareholder-lawsuit-class-action-fraud-stock-475/
or contact Lisa Sriken toll free at (877) 779-1414 or
lsriken@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:
Lisa Sriken
Bernstein Liebhard LLP
https://www.bernlieb.com
(877) 779-1414
lsriken@bernlieb.com
URL: http://bernlieb.com
Contact Information:
Lisa Sriken
Bernstein Liebhard LLP
https://www.bernlieb.com
(877) 779-1414
lsriken@bernlieb.com [GN]
BRIGHT HEALTH: ClaimsFiler Reminds of March 7 Deadline
------------------------------------------------------
ClaimsFiler, a FREE shareholder information service, reminds
investors of pending deadlines in the following securities class
action lawsuits:
Bright Health Group, Inc. (BHG)
Class Period: 6/24/2021 - 11/10/2021; shares pursuant to the
Company's June 2021 Initial Public Offering
Lead Plaintiff Motion Deadline: March 7, 2022
SECURITIES FRAUD, MISLEADING PROSPECTUS
To learn more, visit https://claimsfiler.com/cases/nyse-bhg/
First Solar, Inc. (FSLR)
Class Period: 2/22/2019 - 2/20/2020
Lead Plaintiff Motion Deadline: March 8, 2022
SECURITIES FRAUD
To learn more, visit https://claimsfiler.com/cases/nasdaq-fslr-1/
If you purchased shares of the above companies and would like to
discuss your legal rights and your right to recover for your
economic loss, you may, without obligation or cost to you, contact
us toll-free (844) 367-9658 or visit the case links above.
If you wish to serve as a Lead Plaintiff in the class action, you
must petition the Court on or before the Lead Plaintiff Motion
deadline.
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]
BRIGHT HEALTH: Pomerantz LLP Reminds of March 7 Deadline
--------------------------------------------------------
Pomerantz LLP on Jan. 19 disclosed that a class action lawsuit has
been filed against Bright Health Group, Inc. and one of its
officers. The class action, filed in United States District Court
for the Eastern District of New York, and docketed under
22-cv-00101, is on behalf of a class consisting of all persons
other than Defendants who purchased or otherwise acquired: (a)
Bright Health common stock pursuant and/or traceable to the
Offering Documents (defined below) issued in connection with the
Company's initial public offering conducted on or about June 24,
2021 (the "IPO" or "Offering"); and/or (b) Bright Health securities
between June 24, 2021 and November 10, 2021, both dates inclusive
(the "Class Period"). Plaintiff pursues claims against the
Defendants under the Securities Act of 1933 (the "Securities Act")
and the Securities Exchange Act of 1934 (the "Exchange Act").
If you are a shareholder who purchased (a) Bright Health common
stock pursuant and or traceable to the Offering or IPO, or (b)
Bright Health securities during the class period, you have until
March 7, 2022 to ask the Court to appoint you as Lead Plaintiff for
the class. A copy of the Complaint can be obtained at
www.pomerantzlaw.com. To discuss this action, contact Robert S.
Willoughby at newaction@pomlaw.com or 888.476.6529 (or
888.4-POMLAW), toll-free, Ext. 7980. Those who inquire by e-mail
are encouraged to include their mailing address, telephone number,
and the number of shares purchased.
Bright Health is an integrated care delivery company that engages
in the delivery and financing of health insurance plans in the U.S.
The Company operates in two segments—NeueHealth and Bright
HealthCare. Bright Health offers individual and family, Medicare,
and employers insurance plans. The Company also operates 28 managed
and affiliated risk-bearing primary care clinics.
On May 19, 2021, Bright Health filed a registration statement on
Form S-1 with the SEC in connection with the IPO, which, after
several amendments, was declared effective by the SEC on June 23,
2021 (the "Registration Statement").
On June 25, 2021, Bright Health filed a prospectus on Form 424B4
with the SEC in connection with the IPO, which incorporated and
formed part of the Registration Statement (the "Prospectus" and,
together with the Registration Statement, the "Offering
Documents").
Pursuant to the Offering Documents, Bright Health conducted the
IPO, selling approximately 51 million shares of its common stock to
the public at the Offering price of $18.00 per share, for
approximate proceeds of $887 million to the Company after
applicable underwriting discounts and commissions, and before
expenses.
The complaint alleges that the Offering Documents were negligently
prepared and, as a result, contained untrue statements of material
fact or omitted to state other facts necessary to make the
statements made not misleading and were not prepared in accordance
with the rules and regulations governing their preparation.
Additionally, throughout the Class Period, Defendants made
materially false and misleading statements regarding the Company's
business, operations, and compliance policies. Specifically, the
Offering Documents and Defendants made false and/or misleading
statements and/or failed to disclose that: (i) Bright Health had
overstated its post-IPO business and financial prospects; (ii) the
Company was ill-equipped to handle the impact of COVID-19-related
costs; (iii) the Company was experiencing a decline in premium
revenue because of a failure to capture risk adjustment on newly
added lives; (iv) all the foregoing was reasonably likely to have a
material negative impact on Bright Health's business and financial
condition; and (v) as a result, the Offering Documents and
Defendants' public statements throughout the Class Period were
materially false and/or misleading and failed to state information
required to be stated therein.
On November 11, 2021, Bright Health reported its third quarter 2021
results. Among other results, Bright Health reported earnings per
share of -$0.48 as calculated under U.S. generally accepted
accounting principles, missing consensus estimates by $0.31. Bright
Health also reported a sharp rise in in the Company's medical cost
ratio ("MCR"), advising investors that its MCR "for the third
quarter of 2021 was 103.0%, which includes a 540 basis point
unfavorable impact from COVID-19 related costs and a 900 basis
point unfavorable impact primarily from a cumulative reduction in
premium revenue due to an inability to capture risk adjustment on
newly added lives."
On this news, Bright Health's stock price fell $2.36 per share, or
32.33%, to close at $4.94 per share on November 11, 2021.
As of the time this Complaint was filed, the price of Bright Health
common stock continues to trade below the $18.00 per share Offering
price, damaging investors.
Pomerantz LLP, with offices in New York, Chicago, Los Angeles,
Paris, and Tel Aviv, is acknowledged as one of the premier firms in
the areas of corporate, securities, and antitrust class litigation.
Founded by the late Abraham L. Pomerantz, known as the dean of the
class action bar, Pomerantz pioneered the field of securities class
actions. Today, more than 85 years later, Pomerantz continues in
the tradition he established, fighting for the rights of the
victims of securities fraud, breaches of fiduciary duty, and
corporate misconduct. The Firm has recovered numerous
multimillion-dollar damages awards on behalf of class members. See
www.pomlaw.com.
CONTACT:
Robert S. Willoughby
Pomerantz LLP
rswilloughby@pomlaw.com
888-476-6529 ext. 7980
URL: http://pomlaw.com[GN]
BROOKFIELD ASSET: Court Dismisses Simons Stockholder Class Suit
---------------------------------------------------------------
In the case, STEVEN SIMONS, Plaintiff v. BROOKFIELD ASSET
MANAGEMENT INC., BCP IV GRAFTECH HOLDINGS LP, BPE IV (NON-CDN) GP
LP, BROOKFIELD CAPITAL PARTNERS LTD., BCP GP LIMITED, DENIS
TURCOTTE, JEFFREY DUTTON, DAVID GREGORY, DAVID RINTOUL, ANTHONY
TACCONE, MICHEL DUMAS, BRIAN ACTON, CATHERINE CLEGG, LESLIE DUNN,
and GRAFTECH INTERNATIONAL LTD., Defendants, C.A. No.
2020-0841-KSJM (Del. Ch.), Judge Kathaleen McCormick of the Court
of Chancery of Delaware granted the Defendants' motion to dismiss
the Plaintiff's Amended Verified Individual, Class Action and
Derivative Complaint.
I. Background
In 2019, GrafTech International, Ltd. ("GrafTech") repurchased
shares of stock from its controlling stockholder, Brookfield. The
repurchase price was set by reference to a separate, arm's-length
transaction between Brookfield and a third party. The Plaintiff
stockholder alleges that the repurchase price was not entirely fair
to GrafTech.
GrafTech is a publicly traded Delaware corporation that
manufactures graphite electrode products essential to the
production of electric arc furnace steel and other metals.
Brookfield, an asset management company, acquired GrafTech in 2015
and took GrafTech public in April 2018. Following the IPO,
Brookfield continued to own a majority of GrafTech's common stock.
The Plaintiff filed the lawsuit on Sept. 30, 2020. In response to
the Defendants' initial motions to dismiss, the Plaintiff filed the
Amended Complaint on Feb. 5, 2021.
The Amended Complaint contains three counts. In Count I, the
Plaintiff asserts a direct claim challenging the Share Repurchase.
In Count II, he asserts a derivative claim challenging the Share
Repurchase. In Count III, he challenges the appointment of director
Dunn.
The Defendants renewed their motions to dismiss on March 22, 2021.
The parties completed briefing on May 27, 2021.
On Sept. 20, 2021, the Delaware Supreme Court issued Brookfield
Asset Management., Inc. v. Rosson, overruling Gentile v. Rossette
and clarifying the direct versus derivative analysis. In response,
the Plaintiff withdrew Count I of the Amended Complaint.
On Oct. 4, 2021, the Court of Chancery heard oral arguments
concerning the Defendants' motions to dismiss the remaining
counts.
Under the recent Delaware Supreme Court decision Rosson, the
Plaintiff's claim is solely derivative and thus subject to the
demand requirement. Because the Plaintiff did not make a pre-suit
demand, the Plaintiff must allege particularized facts
demonstrating that demand would have been futile.
The demand futility analysis requires that the Court of Chancery
determines whether the majority of the directors on GrafTech's
board at the time the complaint was filed were capable of
impartially considering a litigation demand. This requires it to
assess each director's independence from Brookfield. To improve his
odds, the Plaintiff seeks to exclude from the head-counting
analysis an indisputably independent ninth director who was added
to the board after the share repurchase. The Plaintiff argues that
the addition of the ninth director violated a stockholder
agreement.
II. Discussion
The Defendants have moved to dismiss Count III under Rule 12(b)(6)
for failure to state a claim and Count II under Rule 23.1 for
failure to plead demand futility.
A. Count III Fails to State a Claim
The governing pleading standard in Delaware to survive a motion to
dismiss is reasonable 'conceivability.' On a Rule 12(b)(6) motion,
the court accepts "all well-pleaded factual allegations in the
Complaint as true, and accepts even vague allegations in the
Complaint as 'well-pleaded' if they provide the defendant notice of
the claim." The court "is not, however, required to accept as true
conclusory allegations without specific supporting factual
allegations." It draws "all reasonable inferences in favor of the
plaintiff, and denies the motion unless the plaintiff could not
recover under any reasonably conceivable set of circumstances
susceptible of proof."
In Count III, the Plaintiff contends the Defendants violated
Section 1.1(c) of the Certificate and Stockholder Agreement by
expanding the Board from eight to nine directors and appointing an
Independent Director instead of a Brookfield Designated Director to
fill the vacancy. In the alternative, he claims that the directors
breached their fiduciary duties by filling the ninth seat with an
Independent Director.
Judge McCormick opines that Count III fails to state a claim
because the Certificate and Stockholder Agreement allowed for the
expansion of the Board and did not require Brookfield to designate
the ninth director. Also, it is not reasonably conceivable that the
directors breached their fiduciary obligations by appointing a
concededly independent and disinterested person to fill the vacant
position. For these reasons, the mere appointment of an additional
independent director seven months following receipt of a Section
220 demand does not support a claim for breach of fiduciary duty.
B. Demand Is Not Excused As To Count II.
A cardinal precept of Delaware law is that directors, rather than
shareholders, manage the business and affairs of the corporation.
In a derivative suit, a stockholder seeks to displace the board's
authority over a litigation asset and assert the corporation's
claim. Because derivative litigation impinges on the managerial
freedom of directors in this way, a stockholder only can pursue a
cause of action belonging to the corporation if (i) the stockholder
demanded that the directors pursue the corporate claim and they
wrongfully refused to do so or (ii) demand is excused because the
directors are incapable of making an impartial decision regarding
the litigation. The demand requirement is a substantive principle
under Delaware law.60 Rule 23.1 is the procedural embodiment of
this substantive principle.
Under Rule 23.1, stockholder plaintiffs must allege with
particularity the efforts, if any, made by the plaintiff to obtain
the action the plaintiff desires from the directors or comparable
authority and the reasons for the plaintiff's failure to obtain the
action or for not making the effort. Stockholders choosing to
allege demand futility must meet "heightened pleading
requirements," alleging "particularized factual statements that are
essential to the claim." Plaintiffs are entitled to all reasonable
factual inferences that logically flow from the particularized
facts alleged, but conclusory allegations are not considered as
expressly pleaded facts or factual inferences."
Recently, the Delaware Supreme Court affirmed Zuckerberg and
thereby adopted Vice Chancellor Laster's "universal test" for
demand futility that blends elements of the two precursor tests:
Aronson v. Lewis and Rales v. Blasband. When conducting a demand
futility analysis under Zuckerberg, Delaware courts ask: (i)
whether the director received a material personal benefit from the
alleged misconduct that is the subject of the litigation demand;
(ii) whether the director faces a substantial likelihood of
liability on any of the claims that would be the subject of the
litigation demand; and (iii) whether the director lacks
independence from someone who received a material personal benefit
from the alleged misconduct that would be the subject of the
litigation demand or who would face a substantial likelihood of
liability on any of the claims that are the subject of the
litigation demand.
If the answer to any of the questions is 'yes' for at least half of
the members of the demand board, then demand is excused as futile."
While the Zuckerberg test displaced the prior tests from Aronson
and Rales, cases properly applying Aronson and Rales remain good
law.
Judge McCormick evaluates demand futility on a director-by-director
basis, determining whether a majority of the board of directors
could consider a demand by "counting heads." Of the nine-member
Board, one is the Company's CEO, Rintoul, and three directors are
affiliated with Brookfield.
For the purposes of the Plaintiff's Rule 23.1 motion, the
Defendants do not dispute that these directors are compromised.
Thus, to avoid dismissal, the Plaintiff must plead particularized
facts supporting a reason to doubt that at least one of the five
outside directors is incapable of exercising disinterested and
independent judgment regarding a demand.
Recall that the five outside directors are Clegg, Dunn, Acton,
Dumas, and Taccone. Judge McCormick finds that the Plaintiff failed
to adequately allege that any of these five directors are incapable
of disinterestedly and independently considering a demand. She
finds that (i) the Plaintiff failed to plead that any of the five
outside directors stood to gain a material personal benefit from
the Challenged Transactions; (ii) the Plaintiff has failed to plead
facts showing that any outside director faces a substantial
likelihood of liability; and (iii) the Plaintiff's allegations
concerning Dumas and Turcotte's relationship fails to achieve that
"heightened strength" needed to matter.
III. Conclusion
In summary, Judge McCormick concludes that the expansion of the
Board from eight to nine seats and the appointment of Dunn as an
independent director were valid. No outside director received a
material personal benefit from the Challenged Transactions. No
outside director faces a substantial likelihood of personal
liability from the Challenged Transactions. No outside director
lacks independence from Brookfield. All five of GrafTech's outside
directors were thus capable of independently and disinterestedly
considering a pre-suit demand. Demand is therefore not excused as
futile.
For these reasons, Judge McCormick granted the Defendants' motions
to dismiss.
A full-text copy of the Court's Jan. 21, 2022 Memorandum Opinion is
available at https://tinyurl.com/2p8ee99u from Leagle.com.
Kevin H. Davenport -- hdavenport@prickett.com -- Samuel L. Closic,
Eric J. Juray, PRICKETT, JONES & ELLIOTT, P.A., Wilmington,
Delaware; Brian J. Robbins -- brobbins@robbinsllp.com -- Gregory
Del Gaizo , Stephen J. Oddo , Eric M. Carrino , ROBBINS LLP, in San
Diego, California, Attorneys for Plaintiff Steven Simons.
Bradley R. Aronstam -- baronstam@ramllp.com -- R. Garrett Rice,
ROSS ARONSTAM & MORITZ LLP, Wilmington, Delaware; Geoffrey J. Ritts
-- gjritts@jonesday.com -- JONES DAY, Cleveland, Ohio; Marjorie P.
Duffy, JONES DAY, in Columbus, Ohio, Attorneys for Defendants David
Rintoul, Anthony Taccone, Michel Dumas, Brian Acton, Catherine
Clegg, Leslie Dunn, and GrafTech International Ltd.
Blake Rohrbacher -- rohrbacher@rlf.com -- Alexander M. Krischik,
Andrew L. Milam, RICHARDS, LAYTON & FINGER, P.A., Wilmington,
Delaware; Lawrence Portnoy -- lawrence.portnoy@davispolk.com --
DAVIS POLK & WARDWELL LLP, in New York City, Attorneys for
Defendants Brookfield Asset Management Inc., BCP IV Graftech
Holdings LP, BPE IV (Non-Cdn) GP LP, Brookfield Capital Partners
Ltd., BCP GP Limited, Denis Turcotte, Jeffrey Dutton, and David
Gregory.
BUMBLE INC: Alkutkar Sues Over Bumble Dating App's False Claims
---------------------------------------------------------------
HARSH ALKUTKAR, individually and on behalf of all others similarly
situated, Plaintiff v. BUMBLE INC. and BUMBLE HOLDING LIMITED,
Defendants, Case No. 3:22-cv-00422 (N.D. Cal., January 22, 2022) is
a class action against the Defendants for negligent
misrepresentation, intentional misrepresentation, and violations of
the California's Consumers Legal Remedies Act, the False
Advertising Law, and the Unfair Competition Law.
According to the complaint, the Defendants are engaged in false
advertising of their popular dating software application called
Bumble. To induce users to purchase the application's features,
Spotlights and SuperSwipes, Bumble advertises that users will
receive "Up to 10x more matches" and "Up to 10x more
conversations," respectively. In reality, the claims that
Spotlights and SuperSwipes provide up to ten times more matches and
conversations are gross exaggerations of the actual benefits these
features provide. The Plaintiff and Class members have all suffered
harm and damages as a result of Bumble's alleged false advertising
practices.
Bumble Inc. is software company, with its principal place of
business at 1105 West 41st Street, Austin, Texas.
Bumble Holding Limited is a subsidiary of Bumble Inc., with its
principal place of business in London, United Kingdom. [BN]
The Plaintiff is represented by:
Daniel A. Rozenblatt, Esq.
Seth W. Wiener, Esq.
EDGE, A PROFESSIONAL LAW CORPORATION
1341 La Playa Street 20
San Francisco, CA 94122
Telephone: (415) 515-4809
E-mail: daniel@edge.law
seth@edge.law
BURLINGTON RESOURCES: Loses Judgment on Pleadings Bid in Rice Suit
------------------------------------------------------------------
In the case, SALLY E. RICE, as Trustee for the Winston Lawrence
Rice Trust, on behalf of herself and all others similarly situated,
Plaintiff v. BURLINGTON RESOURCES OIL & GAS COMPANY LP, Defendant,
Case No. 20-cv-00431-GKF-CDL (N.D. Okla.), Judge Gregory K.
Frizzell of the U.S. District Court for the Northern District of
Oklahoma denied the Defendant's Motion for Judgment on the
Pleadings.
I. Background
The lawsuit is a putative class action relating to interest owed on
untimely payments of oil-and-gas royalties. On Aug. 25, 2020,
Plaintiff Rice brought the action against Burlington, the operator
of a well in which she has an ownership interest. Rice alleges a
single claim under North Dakota law for Breach of Statutory
Obligation to Pay Interest, pursuant to N. D. C. C. Section
47-16-39.1. Burlington moves for judgment on the pleadings, arguing
that Rice's claim is barred by the applicable statute of
limitations.
Ms. Rice alleges that North Dakota law requires operators like
Burlington to pay royalties to mineral owners within 150 days of
marketing the oil or gas. When an operator like Burlington fails to
pay royalties to a mineral owner within 150 days after the oil or
gas is sold, the operator owes 18% interest on the unpaid royalty.
The statute expressly states there is no demand requirement before
a mineral owner is entitled to statutory interest. Despite this,
Burlington does not automatically pay interest on untimely
payments.
Instead, through its agent ConocoPhillips, Burlington has adopted a
policy of requiring mineral owners to first demand statutory
interest before it will pay what is owed. ConocoPhillips directs
mineral owners to contact its Bartlesville, Oklahoma, office when
they have questions about their payments. Decisions on whether
Burlington owes interest on late payments, and whether Burlington
will pay interest on those late payments, are made there by
ConocoPhillips.
Ms. Rice serves as trustee for the Winston Lawrence Rice Trust. The
Trust owns an interest in oil and gas produced from the Haydon
44-22TFH-ULW well operated by Burlington in McKenzie County, North
Dakota. ConocoPhillips remits royalty payments from this well on
behalf of Burlington. Burlington failed to pay the Trust royalties
to which it is entitled within 150 days of marketing the Trust's
mineral interests. This included, for example, that for oil
Burlington marketed from the Haydon 44-22TFH-ULW well in December
2014, the Trust did not receive payment until Feb. 29, 2016. When
Burlington finally paid the royalties owed to the Trust in February
2016, Burlington did not include the 18% interest required by North
Dakota statute.
Ms. Rice brings the putative class action on behalf of "all
non-excluded persons or entities owning mineral interests in North
Dakota wells who: (1) received untimely payments from Burlington
for royalties in North Dakota wells; and (2) whose payments did not
include the 18% interest required by law."
II. Analysis
Burlington argues the Court should grant judgment on the pleadings
because the Plaintiff's claim for Breach of Statutory Obligation to
Pay Interest, N.D.C.C. Section 47-16-39.1, is barred by North
Dakota's statute of limitations for penalties and forfeitures,
which requires an action to be brought within three years after it
accrues. The Plaintiff does not dispute that her action would be
untimely under the three-year statute of limitations. Thus, the
issue presented is whether North Dakota's general six-year statute
of limitations for statutory actions, N.D.C.C. Section 28-01-16(2),
or North Dakota's three-year statute of limitations for penalties
and forfeitures, N.D.C.C. Section 28-01-17(2), governs the
Plaintiff's claim.
Judge Frizzell finds and concludes that the North Dakota Supreme
Court would likely find the 18% interest amount in N.D.C.C. Section
47-16-39.1 to be remedial rather than penal. And to the extent a
question remains about the appropriate statute of limitations, the
longer six-year statute of N.D.C.C. Section 28-01-16(2) applies.
Burlington concedes for purposes of the motion that Rice's cause of
action accrued on May 31, 2015. Rice filed the case on Aug. 25,
2020. Thus, Rice's claim was timely filed within six years of its
accrual.
III. Disposition
Judge Frizzell denied the Defendant's Motion for Judgment on the
Pleadings.
A full-text copy of the Court's Jan. 21, 2022 Opinion & Order is
available at https://tinyurl.com/539mbsf2 from Leagle.com.
CHILDREN'S HOSPITAL: Faces ERISA Class Action in Massachusetts
--------------------------------------------------------------
Kendall Heebink, writing for LawStreet, reports that plaintiffs
Adilson Monteiro, Karen Ginsburg, Jason Lutan, and Brian Minsk
filed a class action suit on Jan. 18 in the District of
Massachusetts both individually and as representatives of a class
of similarly situated persons on behalf of the Children's Hospital
Corporation Tax-Deferred Annuity Plan. The complaint alleges that
the defendants breached their fiduciary duties under the Employee
Retirement Income Security Act (ERISA) in connection with the
plan.
The complaint alleges that the defendants failed to inform the
plaintiffs of the expenses and risk of the plan, letting
"unreasonable expenses" be charged to the plan's participants, and
approving both high-cost and poorly performing investments.
The defendants include the Children's Hospital Corporation (Boston
Children's), the Board of Directors of the Children's Hospital
Corporation, the Children's Hospital Corporation Retirement
Committee, and other members of the Retirement Committee or Board
(collectively, the defendants).
All of the plaintiffs and class members are a part of the
Children's Hospital Corporation Tax-Deferred Annuity Plan. The
plan, the complaint says, consists of different investment options
including mutual funds, guaranteed investment contracts, and a
self-directed brokerage account. The participant-directed 403(b)
plan has participants "direct the investment of their contributions
into various investment options offered by the Plan." During the
class period, most of the plan's assets were held by Fidelity
Management Trust Company in a trust.
The plaintiffs highlight ERISA's rule that plan fiduciaries should
always be acting in the best interest of plan participants.
Further, ERISA specifies that fiduciaries should act "with the
care, skill, prudence, and diligence under the circumstances then
prevailing that a prudent man acting in a like capacity and
familiar with such matters would use in the conduct of an
enterprise of like character and with like aims."
When ERISA fiduciaries fail to use attention to detail and incur
fees or unreasonable costs, there can be "stark financial
consequences for retirees," the complaint said. The complaint
asserts that "over time, even small differences in fees compound
and can result in vast differences in the amount of a participant's
savings available at retirement."
The complaint cites a breach of fiduciary duty, failure to monitor
fiduciaries and co-fiduciary breaches, or, in the alternative,
liability for knowing breach of trust. As a result of the alleged
violations, the plaintiffs are seeking declaratory judgement, a
permanent injunction prohibiting the defendants from engaging in
future ERISA violations, equitable, legal, and remedial relief,
compensatory damages, litigation fees, and any other relief deemed
equitable by the Court.
The plaintiffs are represented by Bailey & Glasser. [GN]
COMMUNITY ACTION: James Files Suit in Cal. Super. Ct.
-----------------------------------------------------
A class action lawsuit has been filed against Community Action
Partnership of Kern. The case is styled as Jennifer James,
individually, and on behalf of other members of the general public
similarly situated v. Community Action Partnership of Kern, a
California corporation, Case No. BCV-22-100131 (Cal. Super. Ct.,
Kern Cty., Jan. 14, 2022).
The case type is stated as "Other Employment - Civil Unlimited."
Community Action Partnership of Kern (CAPK) --
https://www.capk.org/ -- administers more than a dozen programs
aimed at meeting children, families and individuals at their point
of need, for those who have had difficulty engaging the "American
Dream."[BN]
The Plaintiff is represented by:
Edwin Aiwazian, Esq.
LAWYERS FOR JUSTICE, PC
410 Arden Avenue, Suite 203
Glendale, CA 91203
Phone: 818-265-1020
Fax: 818-265-1021
COMPASS PACT: Daily Sues Over Unpaid Overtime Wages
---------------------------------------------------
Raymundo James Daily, individually and on behalf of all others
similarly situated v. COMPASS PACT 3, LLV d/b/a RILIBERTO'S, a
domestic limited liability company, Case No. 4:22-cv-00020-JAS (D.
Ariz., Jan. 14, 2022), is brought to recover overtime wages and
liquidated damages brought pursuant to the Fair Labor Standards
Act.
Although the Plaintiff routinely worked (and continued to work) in
excess of 40 hours per workweek, the Plaintiff were not paid
overtime of at least one and one-half their regular rates for all
hours worked in excess of 40 hours per workweek. The decision by
the Defendant not to pay overtime to the Plaintiff was neither
reasonable nor in good faith. The Defendant knowingly and
deliberately failed to compensate the Plaintiff overtime of at
least one and one-half their regular rates for all hours worked in
excess of 40 hours per workweek, says the complaint.
The Plaintiff was employed as a Manager by Riliberto's in Tucson,
Arizona from April 2021 until June 2021.
Riliberto's operates several Mexican themes restaurants throughout
Arizona.[BN]
The Plaintiff is represented by:
Nicholas J. Enoch, Esq.
LUBIN & ENOCH, P.C.
349 North Fourth Avenue
Phoenix, AZ 85003-1505
Phone: (602) 234-0008
Facsimile: (602) 626-3586
Email: nick@lubinandenoch.com
- and -
Austin W. Anderson, Esq.
Clif Alexander, Esq.
ANDERSON ALEXANDER, PLLC
819 North Upper Broadway
Corpus Christi, TX 78401
Phone: (361) 452-1279
Facsimile: (361) 452-1284
Email: austin@a2xlaw.com
clif@a2xlaw.com
CORECIVIC INC: Faces Class Suit in Nevada Over Alleged Wiretapping
------------------------------------------------------------------
On January 14, 2022, Judge Jennifer A. Dorsey of the U.S. District
Court for the District of Nevada ruled that a lawsuit against the
for-profit prison company, CoreCivic, should move forward.
CoreCivic had sought to dismiss the lawsuit, which is a proposed
class action that alleges CoreCivic wiretapped attorneys' phone
calls with their clients who were confined in CoreCivic's prisons
and detention centers. The Plaintiff, Kathleen Bliss, is herself a
criminal defense attorney and will seek to certify a nationwide
class of attorneys who have had their calls with clients recorded,
as well as a subclass of Nevada attorneys. Bliss alleges CoreCivic
violated the Federal and Nevada Wiretap Acts.
Bliss said of the court's decision: "The attorney-client
relationship is one of the most important protections that the
Constitution extends to all of us in America. It is key to our
liberty, our ability to defend ourselves against government
accusations. Judge Dorsey's decision recognizes the seriousness,
the importance of these rights; and though not deciding the merits,
this first step demonstrates that all accused people expect and
deserve to have the confidentiality of their innermost thoughts and
conversations with counsel preserved and respected without
violation or ill-intention."
Bliss is represented by Anna P. Prakash, Charles A. Delbridge,
Matthew H. Morgan, Melanie A. Johnson, and Charles J. O'Meara of
Nichols Kaster, PLLP; Michael Hodgson of The Hodgson Law Firm, LLC;
Lance Sandage of Sandage Law LLC; Joseph K. Eischens of the Law
Office of Joseph K. Eischens; and Paul S. Padda of Paul Padda Law,
PLLC.
The case is Kathleen Bliss, on behalf of herself, the Proposed
Nationwide Rule 23 Class, and the Proposed Nevada Subclass v.
CoreCivic, Inc., Case No. 2:18-cv-01280-JAD-EJY (District of
Nevada).
Nichols Kaster, PLLP, an employee, consumer, and civil rights firm
has dedicated over 45 years to fighting for clients in individual
and class action matters. With offices in Minneapolis, Minnesota
and San Francisco, California, the firm is perfectly situated for
the work it does representing plaintiffs in cases across the
country. The firm has recently received a First Tier ranking on the
2022 Best Law Firms List in Minneapolis for Litigation-Labor and
Employment by U.S. News-Best Lawyers® "Best Law Firms." [GN]
CRST MALONE: Notice of Action to Drivers in Broome Suit Allowed
---------------------------------------------------------------
In the case, BARRY BROOME, an individual, on behalf of himself and
all others similarly situated, Plaintiff v. CRST MALONE, INC.,
Defendant, Case No. 2:19-cv-01917-MHH (N.D. Ala.), Judge Madeline
Hughes Haikala of the U.S. District Court for the Northern District
of Alabama, Southern Division, issued a Memorandum Opinion and
Order authorizing the Plaintiff to notify Malone lease-purchase
drivers of the action and to provide opt-in information.
I. Introduction
In the action, Mr. Broome alleges that he and other truck drivers
who haul loads for CRST Malone are -- or were -- employees of the
company and entitled to a federal hourly minimum wage under the
Fair Labor Standards Act. Mr. Broome has asked the Court to provide
notice of the action to other drivers like him pursuant to 29
U.S.C. Section 216(b), so that other drivers may opt-in to the
collective action.
Mr. Broome proposes that the Court provides notice to: All current
and former drivers for Defendant CRST Malone, Inc. in the United
States of America who worked during trips of 24-hours or more, at
any time beginning March 30, 2017 until the date of judgment after
trial.
II. Discussion
To examine Mr. Broome's proposal, the Court set a two-month time
frame for notice discovery. According to Malone, "Mr. Broome served
and received responses to 25 written discovery requests and the
parties have exchanged 1,225 pages of documents." The counsel for
Malone deposed Mr. Broome, and Mr. Broome's attorney took a
30(b)(6) deposition of Malone.
The evidence before the Court indicates that approximately 680
truck drivers operate under Malone's umbrella. The 680 drivers fall
into three categories. There are drivers who lease their trucks
through a lease-purchase program with CRST Lincoln, Malone's
affiliate; drivers who own their trucks; and drivers who carry
loads for Malone through one of Malone's approximately 45 agents.
Of the 680 drivers, approximately 290 of them participate in the
lease-purchase program, approximately 200 of them drive for one of
Malone's agents, and the rest own their trucks. Mr. Broome
participated in the lease-purchase program.
All lease-purchase drivers sign an Independent Contractor Operating
Agreement ("ICOA") with Malone. Mr. Broome signed Malone's standard
ICOA. The ICOA classifies lease-purchase drivers as independent
contractors. It sets the compensation for a lease-purchase driver
at 75% of the adjusted gross line haul revenue for each load
hauled.
The ICOA imposes job responsibilities and restrictions on all
lease-purchase drivers. Job responsibilities include "making timely
and safe deliveries of all loads" and "notifying Carrier when
delivery has been made or when delivery will be delayed for any
reason." The restrictions imposed by the ICOA contribute to Mr.
Broome's allegation that he and other Malone drivers are employees,
not independent contractors.
As indicated, Mr. Broome asks to include in the action only drivers
"who worked during trips of 24-hours or more." The limitation
ensures that one of the issues central to Mr. Broome's claim --
whether hours spent resting in the truck's sleeper berth are
compensable -- is common to all drivers in his proposed collective
action.
Malone argues that identifying drivers who qualify for Mr. Broome's
proposed notice "and evaluating the sufficiency of their
compensation on a contractor-by-contractor, workweek-by-workweek
basis would be a herculean task" and that "this kind of highly
individualized inquiry is not suited for collective adjudication."
This argument speaks to the calculation of unpaid wages. In support
of its argument, Malone cites Blakley v. Celadon Group, Inc., 2017
WL 6989080 (S.D. Ind. Oct. 18, 2017).
The district court in Blakley stated: "Although Named Plaintiffs
argue that such an individualized calculation is acceptable in a
collective action setting because damages need not be determined on
a class-wide basis, such an argument does not support certification
of a collective action here because the individualized calculation
at issue informs the liability determination for violating the
FLSA, rather than merely the damages calculation."
Malone argues that the same logic applies in the present case
because liability with respect to Mr. Broome's wage claim or the
claim of another driver has not been conclusively established.
Judge Haikala opines that the case differs from Blakely because
there are common liability issues that do not intersect with a
calculation of damages. The evidence does not establish that Mr.
Broome is similarly situated to every Malone driver "who worked
during trips of 24-hours or more." Were she to authorize notice to
all 680 drivers who deliver loads for Malone, Judge Haikala likely
would not be able to determine on a collective basis whether the
drivers are independent contractors or employees. The differences
among drivers who carry loads under contracts with agents, Malone
drivers who operate trucks they own, and Malone drivers who operate
under a lease-purchase agreement would preclude collective
resolution of Mr. Broome's minimum wage claim
Judge Haikala can eliminate significant differences among drivers
by providing notice to a subcategory of drivers who, like Mr.
Broome, operate for Malone pursuant to a uniform lease-purchase
program. Lease-purchase drivers like Mr. Broome share job titles,
job responsibilities, work restrictions, and pay provisions
(including deductions) and are subject to Malone's disciplinary
scheme. Lease-purchase drivers are in sufficiently similar --
though not identical -- positions to Mr. Broome with respect to the
economic realities of their relationship with Malone such that
collective determination of their status is feasible and
practicable for all involved--the lease-purchase drivers, Malone,
and the Court.
The issue of whether federally-mandated breaks taken by
lease-purchase drivers are compensable hours may be determined
collectively because the ICOA mandates these breaks, and federal
regulations dictate the duration of the breaks. Finally, the issue
of which lease-related deductions Malone may lawfully take from
compensation may be determined collectively for lease-purchase
drivers.
Judge Haikala concludes that the judicial system benefits from the
efficient resolution in one proceeding of these common issues of
law." Denying notice to lease-purchase drivers because those
drivers are not identical in all respects would defeat "the broad
remedial goal" of the FLSA's collective action provision. Thus, she
will allow Mr. Broome to provide notice to Malone lease-purchase
drivers.
III. Disposition
For the reasons she discussed, Judge Haikala authorized Mr. Broome
to notify Malone lease-purchase drivers of the FLSA action and to
provide opt-in information. Given the subset of drivers for whom
the Court will authorize notice, Mr. Broome's description of the
drivers to whom notice should be sent is too broad. Consistent with
the Order, within 14 days, the parties will confer and propose an
amended notice for Malone lease-purchase drivers.
A full-text copy of the Court's Jan. 21, 2022 Memorandum Opinion &
Order is available at https://tinyurl.com/bdh66pck from
Leagle.com.
DAN LIU: Scheduling Order on FRCP 23 Issues Entered in Cheng Suit
-----------------------------------------------------------------
In the class action lawsuit captioned as Xunhui Cheng and Kelin
Cai, on behalf of himself and all others similarly situated, v. Dan
Liu et al., Case No. 4:20-cv-01726-JD (D.S.C.), the Hon. Judge
Joseph Dawson III entered a scheduling order regarding Federal Rule
of Civil Procedure (FRCP) 23 issues:
1. Bifurcation of Class Discovery
Discovery prior to the Court's decision on class
certification must be sufficient to permit the Court to
determine whether the requirements of FRCP 23 are
satisfied, including a sufficient inquiry to ensure
appropriate management of the case as a Class Action.
2. Class Certification Expert Disclosures
Expert witnesses for class certification shall be
disclosed as follows:
A. The Plaintiffs shall file and serve a document
identifying by full name, address and telephone number
each person whom Plaintiffs expect to call as an expert
regarding class certification and certifying that a
written report prepared and signed by the expert
pursuant to Fed. R. Civ. P. 26(a)(2)(B) or, where
allowed, a report prepared by counsel has been
disclosed to the other parties by April 15, 2022.
B. The Defendants shall file and serve a document
identifying by full name, address, and telephone number
each person whom Defendants expect to call as an expert
regarding class certification and certifying that a
written report prepared and signed by the expert
pursuant to Fed. R. Civ. P. 26(a)(2)(B) or, where
allowed, a report prepared by counsel has been
disclosed to the other parties by May 18, 2022.
3. Depositions of Class Certification Expert Witnesses
A. Plaintiffs shall make Plaintiffs' experts available for
deposition by May 18, 2022.
B. Defendants shall make Defendants' experts available for
deposition by June 24, 2022.
4. Class Discovery
Class discovery shall close on June 30, 2022 (any
discovery requests must be made such that the response is
due on or before this date).
5. Class Certification
The Plaintiffs' Motion for Class Certification and
Memorandum in Support shall be filed by July 1, 2022.
The Defendants' responses shall be filed by August 1,
2022. The Plaintiffs' reply, if any, shall be filed by
August 15, 2022.
A copy of the Court's order dated Jan. 24, 2022 is available from
PacerMonitor.com at https://bit.ly/3fYMoT2 at no extra charge.[CC]
DESKTOP METAL: Kirby McInerney Reminds of February 22 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 Desktop Metal, Inc., Marathon Digital
Holdings, Inc., and Redwire Corporation. 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.
Desktop Metal, Inc. ("Desktop Metal" or the "Company") (NYSE: DM)
Class Period: from March 15, 2021 to November 15, 2021
Pending Court: U.S. District Court for the District of
Massachusetts
Lead Plaintiff Deadline: February 22, 2022
The lawsuits allege throughout the Class Period, Defendants failed
to disclose to investors that there were deficiencies in
EnvisionTEC's manufacturing and product compliance practices and
procedures, which presented a material risk to the
commercialization of EnvisionTEC's products.
For additional information on the Desktop Metal lawsuits please
visit this website.
Marathon Digital Holdings, Inc. f/k/a Marathon Patent Group, Inc.
("Marathon" or the "Company") (NASDAQ: MARA)
Class Period: October 13, 2020 to November 15, 2021
Pending Court: U.S. District Court for the District of Nevada
Lead Plaintiff Deadline: February 15, 2022
The lawsuit alleges throughout the Class Period, Defendants made
false and/or misleading statements and/or failed to disclose that:
(i) the Beowulf Joint Venture, as it related to the Hardin
Facility, implicated potential regulatory violations, including
U.S. securities law violations; and (ii) as a result, the Beowulf
Joint Venture subjected Marathon to a heightened risk of regulatory
scrutiny.
For additional information on the Marathon lawsuit please visit
this website.
Redwire Corporation ("Redwire" or the "Company") (NYSE: RDW)
Class Period: August 11, 2021 through November 14, 2021
Pending Court: U.S. District Court for the Middle District of
Florida
Lead Plaintiff Deadline: February 15, 2022
The lawsuit alleges throughout the Class Period, 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) there were accounting issues at one
of Redwire's subunits; and (2) as a result, there were material
weaknesses in Redwire's internal controls over financial
reporting.
For additional information on the Redwire 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]
DGS CONSTRUCTION: Loses Bid for Judgment as Matter of Law in Amaya
------------------------------------------------------------------
In the case, MARIO ERNESTO AMAYA and JOSE NORLAND GONZALEZ,
Plaintiffs v. DGS CONSTRUCTION, LLC, d/b/a SCHUSTER CONCRETE
CONSTRUCTION, Defendant, Civil Action No. TDC-16-3350 (D. Md.),
Judge Theodore D. Chuang of the U.S. District Court for the
District of Maryland denied the Defendant's Motion for a Judgment
as a Matter of Law.
I. Background
On June 17, 2021, after a four-day trial, a jury returned a verdict
in favor of Plaintiffs Amaya and Gonzalez, the named Plaintiffs in
the class action lawsuit, on two claims of unjust enrichment
arising from their employment by Schuster on the construction of
the MGM Resort Casino in Oxon Hill, Maryland ("the MGM Project").
Schuster was a subcontractor on the MGM Project, for which the
Whiting-Turner Contracting Co. was the general contractor. The
Plaintiffs were carpenters who worked for Schuster on the MGM
Project. Whiting-Turner had entered into a Project Labor Agreement
("the PLA") with 16 trade unions under which Whiting-Turner
generally agreed to require that all contractors or subcontractors
which were awarded contracts for work on the MGM Project become a
"Signatory" to the PLA and agree to be bound by its terms, which
included a requirement that "all craft employees employed by a
Signatory to perform work covered by this Agreement on the Project,
will be paid the wages and fringe benefits as stipulated in the
collective bargaining agreements." The PLA also provided that under
certain circumstances, a subcontractor that did not employ union
workers could be engaged to work on the MGM Project and be exempted
from the requirements of the PLA.
When Schuster, a non-union subcontractor, secured a subcontract to
perform concrete work on the MGM Project, it entered into an
agreement with Whiting-Turner that included a Project Manual
containing a requirement, consistent with the PLA, that Schuster
must pay its workers pursuant to a designated schedule consisting
of wage rates that "were voluntarily adopted for the Project by
Developer" and were "derived from those listed by the Department of
Labor, Licensing and Regulation, Informational Wage Rates for
Prince George's County." The schedule, labeled as "S.3: Project
Labor Minimum Wage Rates," listed for each job classification both
a "Basic Hourly Rate" and a "Fringe Benefit Payment."
For example, for the carpenter job classification, the Basic Hourly
Rate was $26.81 and the Fringe Benefit Payment was $8.19. For each
straight-time hour, Schuster paid its carpenters both amounts, for
a total of $35.00 per straight-time hour. For overtime hours,
however, it did not include the $8.19 fringe benefit payment.
The unjust enrichment claim at issue on the Motion ("the overtime
fringe benefits claim") is that Schuster failed to pay fringe
benefit amounts on overtime hours worked by Plaintiffs and other
class members (collectively, "the overtime fringe benefits class").
The specific trial evidence relevant to the resolution of the
Motion will be described below.
Schuster has filed a Motion for a Judgment as a Matter of Law
pursuant to Federal Rule of Civil Procedure 50(b) on one of the two
claims, which is fully briefed.
II. Discussion
In its Rule 50(b) Motion, Schuster seeks judgment as a matter of
law on the overtime fringe benefits claim, on which the jury found
in favor of Plaintiffs. Schuster largely rehashes the same
arguments it made on this issue in its oral motions for judgment as
a matter of law under Rule 50(a) at the close of the Plaintiffs'
case and at the close of the evidence.
Judge Chuang, therefore, incorporates by reference its oral ruling
on those motions, as stated on the record. Upon consideration and
reconsideration of Schuster's arguments, the Court again concludes
that there was sufficient evidence to support the jury's verdict on
the overtime fringe benefits claim and will therefore deny the
Motion.
Upon consideration of the evidence, Judge Chuang finds sufficient
evidence to support the jury's finding of unjust enrichment on the
overtime fringe benefits claim. In order to establish a claim of
unjust enrichment, a plaintiff must prove each of the following
elements by a preponderance of the evidence: (1) the plaintiff
conferred a benefit on the defendant; (2) there was an appreciation
or knowledge by the defendant of the benefit; and (3) the defendant
accepted or retained the benefit under circumstances that make it
inequitable for the defendant to retain the benefit without the
payment of its value.
Judge Chuang opines that the evidence supports the conclusions that
(1) MGM, Whiting-Turner, and Schuster had all committed that
subcontractors like Schuster would pay pursuant to the state
prevailing wage rates; (2) Schuster, by repeatedly referring to the
MGM Project as a "scale" project and providing the S.3 schedule,
misled workers into believing falsely that they were being paid in
a manner consistent with the state prevailing wage law; (3) after
justifying its non-payment of the overtime fringe benefit amounts
by invoking the DLLR's position on this issue, Schuster learned
that it was not, in fact, paying in a manner consistent with the
DLLR's requirements for compliance with the state prevailing wage
law; and (4) Schuster nevertheless persisted in unilaterally
refusing to pay or reimburse such amounts without any justification
other than their own, unilateral disagreement with the DLLR's
requirement.
Under these circumstances, the jury could reasonably conclude that
it was unjust for Schuster to have retained the benefit of the work
of the overtime fringe benefit class members without reimbursing
them for those unpaid amounts.
III. Conclusion
For the foregoing reasons, Judge Chuang denied the Motion for
Judgment as a Matter of Law. A separate Order will be issued.
A full-text copy of the Court's Jan. 21, 2022 Memorandum Opinion is
available at https://tinyurl.com/2p8s37t4 from Leagle.com.
ELITE LINE: Scheduling Order on Class Cert. Entered in Shaw Suit
----------------------------------------------------------------
In the class action lawsuit captioned as MICHAEL SHAW, on behalf of
himself and the Class members, v. ELITE LINE SERVICES, INC., et
al., Case No. 1:21-cv-01084-DAD-BAK (E.D. Cal.), the Hon. Judge
Helena M. Barch-kuchta entered a scheduling order as follows:
1. Discovery Deadlines
Non-Expert (Class Issues): May 5, 2023
Mid-Discovery Status Oct. 11, 2022
Conference:
2. Class Certification
Motion Deadlines:
Filing: Jan. 13, 2023
Opposition: Feb. 10, 2023
Reply brief: Feb. 24, 2023
Hearing: April 4, 2023
Elite Line provides airport facility equipment operation and
maintenance services.
A copy of the Court's order dated Jan. 24, 2022 is available from
PacerMonitor.com at https://bit.ly/34au5HN at no extra charge.[CC]
EXELA TECHNOLOGIES: Loses Bid to Dismiss Shen's 2nd Amended Suit
----------------------------------------------------------------
In the case, BO SHEN, et al., Plaintiffs v. EXELA TECHNOLOGIES,
INC., et al., Defendants, Civil Action No. 3:20-CV-0691-D (N.D.
Tex.), Judge Sidney A. Fitzwater of the U.S. District Court for the
Northern District of Texas, Dallas Division, denied the Defendants'
Sept. 3, 2021 motion to dismiss the Plaintiffs' second amended
complaint.
I. Background
In the putative class action alleging claims for securities fraud
and control person liability under Sections 10(b) and 20(a) of the
Securities Exchange Act of 1934 ("Exchange Act"), 15 U.S.C. Section
78j(b) and 78t(a), and Securities and Exchange Commission ("SEC")
Rule 10b-5 ("Rule 10b-5"), 17 C.F.R. Section 240.10b-5, promulgated
thereunder, the Defendants move to dismiss under Fed. R. Civ. P.
9(b) and 12(b)(6) and the Private Securities Litigation Reform Act
of 1995 ("PSLRA"), 15 U.S.C. Section 78u-4, on the grounds that the
Plaintiffs have failed to adequately plead a material
misrepresentation or omission by the Defendants and scienter.
The general background facts and procedural history of the case are
set out in the Court's prior memorandum opinion and order -- Shen
v. Exela Techs., Inc. (Shen I), 2021 WL 2589584, at *1-3 (N.D. Tex.
June 24, 2021) (Fitzwater, J.). In Shen I, the Plaintiffs relied on
four theories to plead a plausible securities fraud claim. They now
assert three.
Like their prior complaint, their current second amended complaint
("SAC") rests on the theory that the Defendants misrepresented
Exela's revenue "by telling investors that Exela had 90% visibility
into its revenue" -- i.e., that 90% of the company's revenue was
predictable -- "because the revenue was recurring in nature due to
long-term or autorenewal customer contracts." These representations
were misleading, according to the SAC, "because approximately 20%
of Exela's revenue came from billing customers for pass-through
postage costs, which the Defendants later admitted was inconsistent
and highly unpredictable."
In Shen I, the Court rejected the Plaintiffs' 90% revenue
visibility theory based on their failure to adequately plead
scienter. In sum, it noted that the Plaintiffs relied on
misrepresentations made between March 2018 and March 2019, but they
failed to plead any specific facts establishing that, at the time
the Defendants represented that Exela had 90% revenue visibility,
the Defendants knew that approximately 20% of Exela's revenue for
2018 and 2019 came from unpredictable postage and postage handling.
And the Court rejected the Plaintiffs' other reasons for
maintaining that they had adequately pleaded scienter with respect
to the 90% revenue visibility representations.
Although in Shen I the Court granted the Defendants' motion to
dismiss, it also granted the Plaintiffs leave to replead. The
Plaintiffs have amended their complaint via the SAC, and the
Defendants move anew to dismiss under Rules 9(b) and 12(b)(6) and
the PSLRA. The Court has heard oral argument.
II. Discussion
In their motion to dismiss, the Defendants challenge the first and
second elements of the Plaintiffs' securities fraud claim,
asserting that the Plaintiffs have again failed to plead
particularized facts showing an actionable misstatement or
supporting a strong inference of scienter. And the Defendants'
counsel confirmed at oral argument that the Defendants' present
motion to dismiss challenges only the first two elements. Judge
Fitzwater therefore addresses only the first and second elements
that the Plaintiffs must satisfy to proceed past the pleading
stage.
A.
The first element obligates the Plaintiffs to plead with
particularity what each of the Defendants' misrepresentations or
omissions was and why each was misleading. The SAC alleges that the
Defendants made the 90% visibility misrepresentation, or similar
statements, in the following instances, which the Court accepts as
true at this stage of the case. The Defendants' other alleged
visibility statements similarly rely on present and historical
facts. Accordingly, the Defendants' alleged visibility statements
are not shielded under the PSLRA's safe harbor provisions.
Nor are these statements protected by the "bespeaks caution"
doctrine, which protects optimistic projections accompanied by
appropriate cautionary language, Judge Fitzwater finds. He says,
the Court has already concluded that the Defendants' alleged
visibility statements are not forward-looking statements. In any
event, he says, the Defendants have not pointed to any specific
cautionary language that accompanied these statements.
Based on the foregoing allegations in the SAC, Judge Fitzwater
concludes that the Plaintiffs have satisfied their obligation to
plead with particularity what each of the Defendants'
misrepresentations was and why each was misleading.
B.
To satisfy the second requirement -- scienter -- the Plaintiffs
must allege with particularity the facts giving rise to a strong
inference that the Defendants acted with the required state of
mind. A "strong" inference is more than one that is merely
plausible or reasonable: It is cogent and at least as compelling as
any opposing inference of nonfraudulent intent. The required state
of mind for scienter includes "severe recklessness." But "severe
recklessness" is limited to those highly unreasonable omissions or
misrepresentations that involve not merely simple or even
inexcusable negligence, but an extreme departure from the standards
of ordinary care, and that present a danger of misleading buyers or
sellers that is either known to the defendant or is so obvious that
the defendant must have been aware of it.
In their SAC, the Plaintiffs have added support for the scienter
element of each of their theories. Judge Fitzwater has considered
these new allegations in tandem with the ones carried forward from
the Plaintiffs' prior amended complaint. This holistic approach is
required by circuit precedent.
In addition to accepting all of the factual allegations in the
complaint as true, courts must consider the complaint in its
entirety, as well as other sources courts ordinarily examine when
ruling on Rule 12(b)(6) motions to dismiss, in particular,
documents incorporated into the complaint by reference, and matters
of which a court may take judicial notice. The inquiry is whether
all of the facts alleged, taken collectively, give rise to a strong
plausible inference of scienter, not whether any individual
allegation, scrutinized in isolation, meets that standard.
Considering the SAC as a whole, Judge Fitzwater holds that the
Plaintiffs have pleaded with the required degree of particularity
that defendants acted at least with severe recklessness when
misrepresenting that Exela had 90% revenue visibility, and that the
inference of fraud is cogent and at least as compelling as any
opposing inference of nonfraudulent intent.
Judge Fitzwater finds that (i) the SAC adequately pleads that the
Defendants were aware of this when they represented that Exela had
90% visibility into its revenue; (ii) the SAC adequately pleads
that it was highly unreasonable for defendants to misrepresent
Exela's revenue visibility in this way; (iii) the SAC adequately
alleged that the Defendants' conduct presented a danger of
misleading buyers or sellers that was so obvious that defendants
must have been aware of it.
In sum, Judge Fitzwater opines that misrepresenting that Exela had
90% revenue visibility therefore presented a danger of misleading
buyers or sellers of Exela stock that was so obvious that the
Defendants must have been aware of it. The SAC adequately pleads
scienter in support of this theory for the Plaintiffs' securities
fraud claim.
III. Conclusion
Because Judge Fitzwater holds that the Plaintiffs have pleaded a
plausible Exchange Act and Rule 10b-5 claim based on the theory of
90% revenue visibility, he does not reach, and expresses no view
about, whether the Plaintiffs have rectified the deficiencies in
their other theories, which the Court rejected in Shen I. Nor, of
course, does Judge Fitzwater suggest a view about whether the
Plaintiffs can or cannot prevail at the summary judgment stage or
at trial.
Concluding that the Plaintiffs have satisfied the heightened
pleading requirements of Rules 9(b) and 12(b)(6) and the PSLRA
concerning at least one theory of liability, Judge Fitzwater denied
the Defendants' motion to dismiss the Plaintiffs' SAC.
A full-text copy of the Court's Jan. 21, 2022 Memorandum Opinion &
Order is available at https://tinyurl.com/2s373was from
Leagle.com.
FARMLAND PARTNERS: Approval of Brokop's Class Notice Recommended
----------------------------------------------------------------
In the case, DON BROKOP, individually and on behalf of all others
similarly situated, Plaintiffs v. FARMLAND PARTNERS INC., PAUL A.
PITTMAN, and LUCA FABBRI, Defendants, Civil Action No.
18-cv-02104-DME-NYW (D. Colo.), Magistrate Judge Nina Y. Wang of
the U.S. District Court for the District of Colorado recommended
that the Plaintiff's Unopposed Motion for Approval of Notice of
Pendency of Class Action be granted in part and denied in part.
I. Background
It is a class action alleging violations of Sections 10(b) and
20(a) of the Securities Exchange Act and Rule 10b-5, codified at 17
C.F.R. Section 240.10b-5, brought pursuant to the Private
Securities Litigation Reform Act ("PSLRA"), 15 U.S.C. Section
78u-4. The original plaintiffs alleged that the Defendants made
materially false and misleading statements regarding the extent and
nature of Farmland's related party transactions in making quarterly
and yearly filings with the Securities and Exchange Commission
("SEC").
The case proceeded to a Scheduling Conference on July 18, 2019. The
Scheduling Order provided that the deadline to seek joinder of
parties or amendment of pleadings was Sept. 5, 2019. The Scheduling
Order also set Dec. 16, 2019 as the deadline for the Plaintiffs to
file a motion for class certification, and Jan. 28, 2020 as the
deadline for document production.
On Dec. 16, 2019, the Plaintiffs filed a Motion for Class
Certification. On July 23, 2021, the Court issued a Recommendation
that the Plaintiff's Motion for Class Certification be "granted in
part for the period after Dec. 14, 2016, and denied in part as to
the time period prior to Dec. 14, 2016."
The Defendants filed an Objection to the Recommendation, the
Plaintiff responded, and the Defendants replied. On September 30,
Judge Ebel adopted in part the Court's Recommendation on
Plaintiff's Motion for Class Certification, "certifying the class
only as to the Class Period on and before February 23, 2017." On
November 19, the Plaintiff filed the instant Motion. Being fully
advised of the premises, the Court turns to consider the Motion.
II. Discussion
The Plaintiff asks that the Court approves (1) the form and content
of the proposed Notice of Pendency of Class Action ("Long-Form
Notice"), the proposed Summary Notice of Pendency of Class Action
("Summary Notice"), and the Postcard Notice of Pendency of Class
Action ("Postcard Notice") (collectively, the "Notices"); (2) the
proposed method of disseminating the Notices to the Class; and (3)
the selection of JND Legal Administration ("JND") as the
administrator for Class Notice (the "Notice Administrator").
A. Form and Content of Notice
Judge Wang is satisfied that the Long-Form Notice and Postcard
Notice meet the substantive requirements of Rule 23(c)(2). However,
she finds the Summary Notice to be deficient. For instance, it does
not describe the nature of the action or the class claims, inform
the class members that they may hire their own lawyer, or inform
them that judgment will be binding on them absent opt-out.
Moreover, while the Court does not conclude that all the
information under Rule 23(c)(2)(B) need be expressly included in
the Summary Notice, Judge Wang states that the Summary Notice must
still make clear to Class Members where they can obtain all the
information specified under that Rule 23.
In sum, while Judge Wang finds the form and content of the Long
Form and Postcard Notices to be adequate, she does not find the
Summary Notice to be adequate insofar as (1) it does not describe
the nature of the action or the class claims; and (2) it does not
expressly instruct Class Members to visit the Class Website to
obtain further information regarding this action and their rights.
For these reasons, Judge Wang respectfully recommends that the
Motion be granted (1) insofar as it seeks approval of the content
and form of the proposed Long-Form Notice and Postcard Notice; and
(2) subject to the conditions that the Plaintiff update (a) those
Notices to include the toll-free number referenced in those
Notices, JND Legal Administration's P.O. Box address, and the date
by which putative Class Members can seek their exclusion from the
class, and (b) the Postcard Notice to include a phone number where
the Class Members can obtain more information.
B. Method of Distribution
The Plaintiff proposes that the Class Members be provided notice
through a three-tiered distribution system. First, the Plaintiff,
through his proposed Notice Administrator, would mail the Postcard
Notice by first-class mail to the potential Class members
identified in Farmland's shareholder records or "who may otherwise
be identified with reasonable effort," no later than 50 business
days after the Court's entry of the Class Notice Order. Second, the
Plaintiff would post the Long-Form Notice on a website maintained
by its proposed Notice Administrator, no later than the Mailing
Date. Third, he would publish the Summary Notice "on three separate
occasions over a national business-oriented wire service, five
business days apart, with the first transmittal occurring within 10
calendar days of the Mailing Date." And as mentioned, the Plaintiff
will also post the Long-Form Notice on the Class Website.
Judge Wang agrees that mailing of the Postcard Notice, posting the
Long-Form Notice on a website, and publication of the Summary
Notice -- notwithstanding the deficiencies addressed in the
previous section -- are adequate means to notify and inform members
of the class.
In addition, the Plaintiff indicates that Farmland will provide him
with "its records of shareholder purchases for the applicable
period," and the Long-Form Notice will then be mailed to all
individuals identified on the shareholder records. The Plaintiff
also states that -- where Class Members were "beneficial purchasers
whose common stock is held in 'street name'" -- its proposed Notice
Administrator maintains a database with names and addresses "of the
largest and most common U.S. brokerage firms, banks, institutions,
and other third-party nominees, and the Notice will be mailed to
all of those firms," as well.
Moreover, the Long-Form Notice also includes an instruction to all
individuals who "purchased Farmland common stock during the Class
Period for the beneficial interest of a person or organization"
other than themselves to, within 10 days of receipt of the Postcard
Notice, either (a) request from the Notice Administrator sufficient
copies of the Postcard Notice to forward to all such beneficial
owners and within seven calendar days of receipt of those Postcard
Notices forward them to all such beneficial owners; or (b) provide
a list of the names and the last known addresses of each person or
entity for whom or which [they] purchased such common stock during
the relevant period to the Notice Administrator.
Given the recency of the window for the putative class --
individuals who purchased or otherwise acquired common stock of
Farmland on the New York Stock Exchange between Feb. 23, 2017 and
July 10, 2018-- Judge Wang is satisfied that this method is
reasonably calculated to provide notice to all class members. It is
beyond dispute that notice by first class mail ordinarily satisfies
Rule 23(c)(2)'s requirement that class members receive the best
notice practicable under the circumstances." For these reasons,
Judge Wang respectfully recommends that the Motion be granted to
the extent it seeks approval of the distribution method for the
proposed Long-Form Notice and Postcard Notice.
C. Settlement Administrator
Finally, the Plaintiff also requests approval of its choice of
Notice administrator, JND. He represents that "JND is a
well-regarded provider of administrative services related to class
actions" and "as one of the country's most experienced
administrators for securities class action settlements, JND has
successfully handled the notice and administration services for
numerous securities class actions."
Judge Wang finds the Plaintiff's support for his request that JND
be named as Notice Administrator to be wanting. She nevertheless
takes judicial notice of its recent Recommendation finding JND to
be competent administrator of class action and other complex
litigation settlements. Accordingly, she recommends that the Motion
be granted to the extent it seeks approval of JND as the Notice
Administrator.
III. Conclusion
For the reasons she stated, Judge Wang recommended that the
Plaintiff's Motion be granted in part and denied in part as
follows:
a. The Plaintiff's Motion be granted (1) insofar as it seeks
approval of the content and form of the proposed Long-Form Notice
and Postcard Notice; and (2) subject to the conditions that the
Plaintiff updates (a) those Notices to include the toll-free number
referenced in those Notices, JND Legal Administration's P.O. Box
address, and the date by which putative Class Members can seek
their exclusion from the class, and (b) the Postcard Notice to
include a phone number where Class Members can obtain more
information.
b. The Plaintiff's Motion be denied insofar as it seeks
approval of the content, form, and distribution method for the
Summary Notice.
A full-text copy of the Court's Jan. 21, 2022 Recommendation is
available at https://tinyurl.com/363epvt5 from Leagle.com.
FASTENAL CO: Court Orders More Briefing on Jackson Class Settlement
-------------------------------------------------------------------
In the case, MIESHIA MARIE JACKSON, an individual, on behalf of
herself and others, Plaintiff v. FASTENAL COMPANY, et al.,
Defendants, Case No. 1:20-cv-00345-JLT-SAB (E.D. Cal.), Magistrate
Judge Jennifer L. Thurston of the U.S. District Court for the
Eastern District of California issued an order requesting
supplemental briefing on several issues regarding the Plaintiff's
motion for preliminary approval of the proposed class-action
settlement.
In the proposed class action, Jackson alleges that her former
employer, Fastenal, violated various California labor laws. On Oct.
22, 2021, the Plaintiff filed a motion for an order granting
preliminary approval of the proposed class-action settlement and
included a signed copy of the proposed settlement agreement. The
assigned magistrate judge issued findings and recommendations on
Dec. 3, 2021, recommending that the motion be granted.
Judge Thurston has reviewed the record and now requests
supplemental briefing on several issues.
First, the objection procedure requires class members to file an
objection with the court and to send a letter to the administrator
and all parties. There are no instructions for how to file an
objection. These procedures may be onerous and may serve to
dissuade potential objectors.
Second, the Settlement Agreement provides 45 days to file
objections or to opt out. Because the parties provide no indication
that time is of the essence, at least 60 days may be more
appropriate.
Finally, Section 8.3 of the Settlement Agreement states: "The
Parties and their counsel agree not to take any action to encourage
any Class Member to opt out of and/or object to the Settlement
Agreement." Thus, the proposed class counsel are seeking a ruling
that they are adequate while simultaneously agreeing not to give
their potential clients certain advice.
Judge Thurston requests briefing on whether this provision is
appropriate. Accordingly, within 28 days, the parties will file
briefing concerning the issues identified. Alternatively, the
parties may file a stipulation addressing these issues.
A full-text copy of the Court's Jan. 19, 2022 Order is available at
https://tinyurl.com/2p8kbcdu from Leagle.com.
FIRSTCASH INC: Gainey McKenna Reminds of March 15 Deadline
----------------------------------------------------------
Gainey McKenna & Egleston on Jan. 19 disclosed that a class action
lawsuit has been filed against FirstCash, Inc. ("FirstCash")
(NASDAQ: FCFS) in the United States District Court for the Northern
District of Texas on behalf of investors who purchased FirstCash's
common stock between February 1, 2018 and November 12, 2021, both
dates inclusive (the "Class Period").
The Complaint alleges that Defendants made false and misleading
statements and failed to disclose that: (1) the Company had made
more than 3,600 loans to over 1,000 active-duty members of the
military and their families at usurious interest rates above 36% --
and often exceeding 200% -- in violation of the MLA and the Order;
(2) the Company had failed to implement the remedial measures
imposed by the Order; (3) the Company's financial results were, in
substantial part, the product of the Company's violations of the
MLA and the Order; and (iv) as a result, the Company was exposed to
a material undisclosed risk of legal, reputational, and financial
harm if the Company's violations of the MLA and the Order were ever
publicly disclosed.
On November 12, 2021, the CFPB announced that it had filed a
complaint against the Company for violations of the MLA and the
Order. The Consumer Financial Protection Bureau ("CFPB") complaint
alleged that "between June 2017 and May 2021 (the only period for
which the Bureau currently has Defendants' transactional data),
[the Company and its subsidiary Cash America West, Inc.] together
made over 3,600 pawn loans to more than 1,000 covered borrowers in
Arizona, Nevada, Utah, and Washington." The CFPB found that, in all
of the loans at issue, the Company imposed interest rates over 36%,
with rates frequently exceeding 200%. Additionally, the CFPB found
that the Company's usurious loan practices had been ongoing since
at least October 2016 in violation of the Order. A CFPB release
describing the agency's action against the Company stated that the
Company had "cheated" and "gouged" military families and "robbed
them of their rights to go to court." On this news, the price of
the Company common stock declined approximately 28% the following
two trading days, damaging investors.
Investors who purchased or otherwise acquired shares of FirstCash
should contact the Firm prior to the March 15, 2022 lead plaintiff
motion deadline. A lead plaintiff is a representative party acting
on behalf of other class members in directing the litigation. If
you wish to discuss your rights or interests regarding this class
action, please contact Thomas J. McKenna, Esq. or Gregory M.
Egleston, Esq. of Gainey McKenna & Egleston at (212) 983-1300, or
via e-mail at tjmckenna@gme-law.com or gegleston@gme-law.com.
Please visit our website at http://www.gme-law.comfor more
information about the firm. [GN]
FLYING FOOD: Alfaro Files Suit in Cal. Super. Ct.
-------------------------------------------------
A class action lawsuit has been filed against Flying Food Group,
LLC. The case is styled as Ramon Carina Alfaro, individually, and
on behalf of all others similarly situated v. Flying Food Group,
LLC, Case No. 22STCV01827 (Cal. Super. Ct., Los Angeles Cty., Jan.
14, 2022).
The case type is stated as "Other Employment Complaint Case."
Flying Food Group -- https://flyingfood.com/ -- is a privately
owned provider of exceptional meals for the world's premier
airlines and leading retail brands which is based in the United
States.[BN]
The Plaintiff is represented by:
Kane Moon, Esq.
MOON & YANG, APC
1055 W 7th St., Ste. 1880
Los Angeles, CA 90017-2529
Phone: 213-232-3128
Fax: 213-232-3125
Email: kane.moon@moonyanglaw.com
FRANKENMUTH MUTUAL: Parker Sues Over Property Damage Calculation
----------------------------------------------------------------
ELAINE PARKER DBA SKATELAND ROLLERSPORT, individually and on behalf
of all others similarly situated, Plaintiff v. FRANKENMUTH MUTUAL
INSURANCE COMPANY, Defendant, Case No. 2:22-cv-10130-MAG-CI (E.D.
Mich., January 21, 2022) is a class action against the Defendant
for breach of contract and declaratory judgment and relief.
According to the complaint, the Defendant breached its contract
with the Plaintiff by withholding labor costs as depreciation
during its calculation of the Plaintiff's actual cash value (ACV)
benefits owed under its insurance policy, even though labor does
not depreciate in value over time. As a result of the Defendant's
alleged practice of withholding labor as depreciation, the
Plaintiff received payment for her property loss in an amount less
than she was entitled to receive under the policy.
Frankenmuth Mutual Insurance Company is an insurance firm in
Plymouth, Michigan. [BN]
The Plaintiff is represented by:
Robert B. June, Esq.
LAW OFFICES OF ROBERT JUNE, P.C.
415 Detroit Street, 2nd Floor
Ann Arbor, MI 48104-1117
Telephone: (734) 481-1000
E-mail: bobjune@junelaw.com
- and –
J. Brandon McWherter, Esq.
MCWHERTER SCOTT BOBBITT
341 Cool Springs Blvd., Ste. 230
Franklin, TN 37067
Telephone: (615) 354-1144
- and –
Erik D. Peterson, Esq.
ERIC PETERSON LAW OFFICES, PSC
249 E. Main Street, Suite 150
Lexington, KY 40507
Telephone: (800) 614-1957
GOOGLE LLC: Williams Sues to Recover Unpaid Overtime, Last Pay
--------------------------------------------------------------
Cody Bowlay-Williams, individually and on behalf of others
similarly situated, Plaintiff, v. Google, LLC, Defendant, Case No.
21-cv-09942, (N.D. Cal., December 22, 2021), seeks redress for
Defendant's failure to pay proper overtime compensation, all wages
due at separation, and as well as provide complete and accurate
wage statements. The Plaintiff seeks equitable and injunctive
relief.
Google, LLC is a wholly-owned subsidiary of Alphabet, Inc., an
American multinational technology conglomerate holding company that
specializes in Internet-related services and products, which
include online advertising technologies, a search engine, cloud
computing, software, and hardware.
Bowlay-Williams was employed as an Account Manager for Google from
approximately May of 2019 until approximately August of 2021. He
claims to be denied all wages that were due at that time, including
legally required overtime premiums at the appropriate rate. [BN]
Plaintiffs are represented by:
Daniel S. Brome, Esq.
NICHOLS KASTER, LLP
235 Montgomery St., Suite 810
San Francisco, CA 94104
Telephone: (415) 277-7235
Facsimile: (415) 277-7238
Email: dbrome@nka.com
- and -
Michele R. Fisher, Esq.
NICHOLS KASTER, PLLP
4700 IDS Center, 80 South 8th Street
Minneapolis, MN 55402
Telephone: (612) 256-3200
Facsimile: (612) 215-6870
Email: fisher@nka.com
- and -
Charles L. Scalise, Esq.
ROSS LAW GROUP
1104 San Antonio Street
Houston, TX 78701
Tel: (512) 474-7677
Fax: (512) 474-5306
Email: Charles@rosslawpc.com
GREEN DOT: Review of Lead Plaintiff Appointment in Koffsmon Denied
------------------------------------------------------------------
In the case, ESTEBAN KOFFSMON, Plaintiff v. GREEN DOT CORPORATION,
ET AL., Defendants, Case No. CV 19-10701 DDP (Ex) (C.D. Cal.),
Judge Dean D. Pregerson of the U.S. District Court for the Central
District of California denied the Motion for Reconsideration of the
Court's Order Appointing Led Class Plaintiff and Approving Class
Counsel, filed by the Green Dot Institutional Investor Group.
The Green Dot Institutional Investor Group is comprised of Plymouth
County Retirement Association, Greater Pennsylvania Carpenters
Pension Fund, and Iron Workers District Council of New England
(collectively, "the IIG").
In the securities fraud putative class action against Defendant
Green Dot and others, the IGG and the Pension Fund filed competing
motions to be appointed lead class counsel, pursuant to 15 U.S.C.
Section 78u-4(a)(3). The Pension Fund allegedly suffered losses of
$662,539 as a result of the Defendants' misrepresentations. The
constituent members of the IGG -- Plymouth County, the Carpenters
Fund, and the Iron Workers Council -- alleged losses of $592,917,
$301,353, and $130,114, respectively, for a total of $1,071,666.
The Court analyzed the competing motions under the three-step
framework set forth by the Private Securities Litigation Reform Act
("PSLRA"). It recognized that the PSLRA contemplates the
possibility that a "group of persons" might be the movant best
suited to represent the class, and that the only basis upon which a
court may compare competing plaintiffs is the size of the
plaintiffs' relative financial stakes in the matter. The Order also
observed, however, that "the Ninth Circuit has not addressed the
question 'whether a group can satisfy the "largest financial
interest" requirement by aggregating losses.'"
As the Order explained, the majority of courts in the circuit have
"refused to appoint as lead plaintiff groups of unrelated
individuals, brought together for the sole purpose of aggregating
their claims in an effort to become the presumptive lead
plaintiff." Consistent with that consensus view, the Court declined
to aggregate the losses of the IGG's constituent members. It
therefore considered the Pension Fund to be the movant with the
largest financial stake at issue and thus, the presumptive lead
Plaintiff, before appointing the Pension Fund as the lead
plaintiff.
Shortly before the Court's Order issued, the Ninth Circuit issued
its opinion in In Re Mersho, 6 F.4th 891 (2021). IGG argues that,
under Mersho, the Court should have aggregated the IGG members'
losses, considered the IGG to be the presumptive lead plaintiff,
and appointed IGG rather than the Pension Fund as lead plaintiff.
Judge Pregerson disagrees. He finds that the Court has at no point
considered the IGG to be the presumptive lead plaintiff. He says,
many courts have "refused to appoint as lead plaintiff groups of
unrelated individuals, brought together for the sole purpose of
aggregating their claims in an effort to become the presumptive
lead plaintiff."
For these reasons stated, Judge Pregerson denied the IGG's Motion
for Reconsideration.
A full-text copy of the Court's Jan. 19, 2022 Order is available at
https://tinyurl.com/yn38dp5x from Leagle.com.
GREEN VILLAGE: Faces Munguia Suit Over Unpaid Overtime Wages
------------------------------------------------------------
ELPIDIO ARNULFO MUNGUIA, individually and on behalf of all others
similarly situated, Plaintiffs v. GREEN VILLAGE MEAT MARKET CORP.,
MARCELO MARTINEZ and FERNANDO MARTINEZ, as individuals, Defendants,
Case No. 1:22-cv-00412 (E.D.N.Y., Jan. 25, 2022) arises from the
Defendants' alleged violations of the Fair Labor Standards Act and
the New York Labor Law by failing to pay proper overtime wages and
spread of hours compensation, and failing to provide written wage
notices and wage statements.
Mr. Munguia was employed by the Defendants from January 2019 until
December 2020 and again from May 2021 until October 2021 as a
produce worker and stocker, responsible for maintaining fresh
fruits and vegetables in the store for customers to buy while
performing related miscellaneous duties for the Defendants.
Green Village Meat Market Corp. is a New York domestic business
corporation which provides meat products as well as catering and
other services for wholesale and retail customers.[BN]
The Plaintiff is represented by:
Roman Avshalumov, Esq.
HELEN F. DALTON & ASSOCIATES, P.C.
80-02 Kew Gardens Road, Suite 601
Kew Gardens, NY 11415
Telephone: (718) 263-9591
GULF COAST HOTEL: El-Shabazz Sues Over Unpaid OT, Retaliation
-------------------------------------------------------------
THOMAS EL-SHABAZZ and ELIGAH WILLIAMS, individually, and on the
behalf of all others similarly situated, Plaintiffs v. GULF COAST
HOTEL MANAGEMENT INC., Defendant, Case No. 4:22-cv-00256 (S.D.
Tex., Jan. 25, 2022) is brought pursuant to the Fair Labor
Standards Act arising from the Defendant's failure to pay
appropriate overtime wages, and engagement in retaliation citing
Plaintiffs' wage complaint as the basis for the discipline.
Plaintiffs El-Shabazz and Williams worked for the Defendants as
maintenance workers from January 26, 2017 through March 15, 2021,
and from June 23, 2018 through May 17, 2021, respectively.
Based in Houston, Texas, Gulf Coast Hotel Management Inc. is in the
business of hotel development and management.[BN]
The Plaintiffs are represented by:
Chukwudi Egbuonu, Esq.
LAW OFFICE OF CHUKWUDI EGBUONU
4141 Southwest Freeway, Suite 390
Houston, TX 77027
Telephone: (713) 635-9488
Facsimile: (832) 426-5792
E-mail: chuck@celawoffice.com
HALFDAYS APPAREL: Bunting Files ADA Suit in E.D. New York
---------------------------------------------------------
A class action lawsuit has been filed against Halfdays Apparel
Corp. The case is styled as Rasheta Bunting, individually and as
the representative of a class of similarly situated persons v.
Halfdays Apparel Corp., Case No. 1:22-cv-00455-DG-CLP (E.D.N.Y.,
Jan. 26, 2022).
The lawsuit is brought over alleged violation of the Americans with
Disabilities Act.
Halfdays -- https://www.halfdays.com/ -- is a female-inspired ski
wear company that creates design-driven, technical gear.[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
HANOVER VENTURES: Class of Employees Certified in Gonzalez Suit
---------------------------------------------------------------
In the case, DENNY GONZALEZ, individually and on behalf of all
others similarly situated, Plaintiff v. HANOVER VENTURES
MARKETPLACE LLC, d/b/a Le District, JOHN DOE COMPANY 1, d/b/a HPH
Hospitality, PAUL LAMAS, PETER POULAKAKOS, NICOLAS ABELLO, and
DAVID COUCKE, Defendants, Case No. 21 Civ. 1347 (ER) (S.D.N.Y.),
Judge Edgardo Ramos of the U.S. District Court for the Southern
District of New York granted Gonzalez's motion for conditional
certification.
I. Background
On Feb. 16, 2021, Gonzalez brought the putative class and
collective action against the Defendants. Gonzalez filed an amended
complaint on June 29, 2021.
Gonzalez brings claims under the Fair Labor Standards Act ("FLSA"),
New York Labor Law ("NYLL"), Title VII of the Civil Rights Act of
1964, New York Executive Law Section 296 ("NYHRL"), New York City
Administrative Code Section 8-107 ("NYCHRL"), and New York common
law. He seeks unpaid wages, gratuity, and overtime as well as
liquidated damages, statutory penalties, and attorneys' fees and
costs under the FLSA and NYLL. He also seeks damages and other
relief under Title VII, NYHRL, NYCHRL, and New York common law for
a hostile work environment of persistent sexual harassment.
Plaintiff Gonzalez worked as a server for Hanover from Feb. 12,
2018 until December 2019. Hanover is a Delaware limited-liability
corporation with a principal place of business at 225 Liberty
Street, New York, NY 10281. Gonzalez alleges that Hanover owns and
operates the French-themed marketplace called "Le District" at 225
Liberty Street, which consists of several restaurants, cafes,
counters, and grocers. Gonzalez also alleges that the entities at
Le District advertise jointly, serve a similar cuisine, and have
similar decor and appearance with the common mission "to deliver
delicious French-inspired fare in an environment where service and
quality are paramount."
Hanover is owned and operated by HPH, a business entity of unknown
citizenship, which Gonzalez alleges owns and operates 17
hospitality venues throughout the city including Le District.
Gonzalez alleges that these 17 venues are restaurants owned and
operated by the individual defendants as a single integrated
enterprise under the common control of all the Defendants. As proof
of common ownership and business purpose, Gonzalez alleges that the
websites are all listed on HPH's website as "Our Properties" with
links to each, the restaurants use a central marketing department,
websites and social media for each restaurant are designed by the
same company, new restaurants require approval by the individual
defendants and HPH prior to opening, the restaurants share a
"common look and feel of a trendy New York City bar restaurant,"
the restaurants offer their venue for private parties and events on
the same website, and the restaurants share and exchange non-exempt
employees.
Individual defendants Peter Poulakakos and Paul Lamas are both
owners and principals of the corporate defendants who exercise
operational control over the employees in this action. Individual
defendants Nicolas Abello and David Coucke were manager and
supervisors at L'Appart, one of the restaurants at Le District,
with the power to exercise operational control over the employees
in this action.
As relevant to the FLSA collective action, Gonzalez alleges that he
and the other FLSA collective plaintiffs are and have been
similarly situated, have had substantially similar job requirements
and pay provisions, and are and have been subjected to Defendants'
decisions, policies, plans, programs, practices, procedures,
protocols, routines, and rules, all culminating in a willful
failure and refusal to pay them (i) their proper wages due to
application of invalid tip credit (ii) improper retention of FLSA
Collective Plaintiffs' tips, (iii) unpaid wages and overtime due to
a policy of timeshaving. Further, Gonzalez alleges that his claim
is "essentially the same" as those of the other plaintiffs, and the
identities of the Plaintiffs are readily ascertainable by the
Defendants.
Mr. Gonzalez specifically worked as a waiter at L'Appart, a
Michelin Star restaurant in Le District. He alleges that he engaged
in non-tipped tasks more than 20% of his working time but was paid
at the tip-credit minimum wage for New York City. He alleges the
typical work schedule for him and similarly situated Plaintiffs was
9 hours per day, 5 days a week, with his schedule typically being
3:00 p.m. until 12:00 a.m. Tuesday through Saturday. Workers were
deducted hours every day for a daily lunch break, but often had to
work through the breaks. Further, the Defendants would change
workers' schedules at the last minute, and failed to provide
required wage notices and wage statements. The Defendants also
retained gratuities, as they implemented a tip pool policy that the
Plaintiffs did not agree to and in which managers, including
Coucke, participated. Further, the Defendants retained service and
administrative fees from large events, without paying tipped staff
gratuity.
II. Discussion
Mr. Gonzalez asks the Court to conditionally certify a collective
action on behalf of all current and former non-exempt employees,
including but not limited to waiters, runners, bussers, bartenders,
cooks, line cooks, dishwashers, and porter persons employed by
Hanover at Le District on or after the date that is six years
before the filing of the complaint.
A. Le District as a Single Integrated Enterprise
As an initial matter, Gonzalez must show that Le District is a
single integrated enterprise covered by the FLSA. To determine
whether distinct entities operate as a single integrated
enterprise, "courts consider (1) interrelation of operations, (2)
centralized control of labor relations, (3) common management, and
(4) common ownership or financial control."
Mr. Gonzalez argues that Le District's restaurants, cafes, and
counters engage in interrelated activities including "mutually
supportive services to the substantial advantage of each entity,"
because Hanover (1) directly owns Le District, (2) uses a common
website for Le District, (3) commonly advertises for Le District,
(4) utilizes the space of each business for storage or private
events, (5) jointly utilizes the employees amongst entities that
operate in Le District, and (6) uses a common payroll system for
all the entities.
The Defendants' only response to these arguments is that they "have
denied all such allegations in the FAC, including enterprise
theories, and the Plaintiff has offered no evidence other than the
synergistic use of websites to rebut this fact."
Judge Ramos opines that the Plaintiff has adequately alleged at
this stage that Le District is a single integrated enterprise for
purposes of potential FLSA liability. He finds that the Plaintiff
has presented sufficient factual allegations of (i) "interrelated
operations" based on shared "website, decor, menus, and uniforms,"
(ii) common management, ownership and financial control based on
single common owner, and (iii) "centralized control of labor
relations" based on "core allegations of unlawful pay practices,"
employees working across multiple locations, and owner's chain-wide
role in hiring and payment practices. Judge Ramos now determines
whether a conditional class should be certified.
B. Conditional Certification
The threshold issue in deciding whether to authorize notice in an
FLSA action is whether plaintiffs have demonstrated" that they are
"similarly situated" to other members of the collective. Where
plaintiffs bring claims against multiple defendants, they must
demonstrate a common policy by all defendants.
Judge Ramos finds that, at this stage, Gonzalez has met his modest
burden for conditional collective certification. First, he finds
that Gonzalez's declaration, bolstered by the exhibits submitted in
support of his motion, is sufficient to meet the modest burden of
showing that the Le District employees at issue here are similarly
situated.
Second, he opines that while Gonzalez may ultimately be unable to
prove that Le District is a joint employer at the second state of
certification, for the same reasons as he stated, Gonzalez has, at
this juncture, sufficiently alleged the existence of a common
policy regarding failure to distribute proper wage statements and
notices, failure to pay proper minimum wage, and wrongfully
retained gratuities.
C. Scope of Notice and Notice Period
Mr. Gonzalez seeks to certify the collective of relevant employees
employed by Hanover at Le District on or after the date that is six
years before the filing of the complaint. The Defendants do not
contest the temporal scope of the collective. The FLSA, however,
has a two-year statute of limitations, or three years in the case
of willful violations.
Given the fact that Gonzalez has not yet moved for certification of
the NYLL claim, which has a six-year statute of limitations, Judge
Ramos finds that a three-year notice period is appropriate. He
opines that although notice is normally provided to those employed
within three years of the date of the notice, "courts frequently
permit notice to be keyed to the three-year period prior to the
filing of the complaint, with the understanding that challenges to
the timeliness of individual plaintiffs' actions will be
entertained at a later date." Accordingly, he finds it appropriate
in the case to send notice of this action to all collective class
members employed within the three years prior to the filing of the
complaint.
D. Form and Method of Plaintiffs' Proposed Notice
Mr. Gonzalez has submitted a proposed notice form. The form is
captioned "Notice of Pendency of Lawsuit Regarding Wages" and asks
the recipient to "please read this notice if you are a former or
current employee employed by Le District at any time between
February 16, 2015 and the present." The notice then explains the
lawsuit's claims and damages sought, advising recipients of their
"right to participate in the lawsuit under the FLSA," making clear
that it does not apply to the class action claim brought under the
NYLL.
The notice also states that the Defendants have denied that the
claims have merit and explains that the Court has not yet decided
the merits. It then states the recipients' legal rights to
participate or not participate, as well as notice that retaliation
by Defendants is illegal. Further, the notice states that
participants will be required to provide certain information and
potentially testify, and the results of the case will be binding.
It then lists the steps to take to join the lawsuit, states the
relevant statutes of limitations, and discusses recipients' options
for attorney representation.
Lastly, the notice lists counsel for the Plaintiffs' contact
information and states that recipients can obtain more information
about the lawsuit by contacting them. The notice includes a blank
consent to sue form and asks that it be returned to the counsel for
the Plaintiff within 90 days of notice.
The Defendants have not objected to the content of the notice.
Judge Ramos finds the proposed notice and opt-in forms to be, on
the whole, fair and accurate. Gonzalez has included the relevant
information that courts generally deem appropriate for inclusion in
a notice of collective action. An opt-in period of 90 days is also
reasonable. As per the Court's decision regarding the temporal
scope of the collective, however, Gonzalez is directed to change
the notice to reflect its applicability to only those employed
within three years prior to the filing of the complaint.
Mr. Gonzalez seeks to distribute notice to potential opt-in
plaintiffs by posting the notice and consent forms in the
Defendants' places of business where covered employees are employed
during regular business hours. The Defendants have not objected to
this method of distribution, and Judge Ramos finds this
appropriate, as "courts routinely approve requests to post notice
on employee bulletin boards and in other common areas, even where
potential members will also be notified by mail."
E. Contact Information for Potential Plaintiffs
Mr. Gonzalez requests that the Court orders the Defendants to,
within 10 days of the Court's order, produce in Excel format the
names, social security numbers, titles, compensation rates, dates
of employment, last known mailing addresses, email addresses, and
all known telephone numbers of all covered employees. The
Defendants have not objected to this request.
However, Judge Ramos will not require disclosure of social security
numbers at this time. He explains, in light of privacy concerns,
courts in this District typically decline to compel production of
Social Security numbers. Without a demonstration of the necessity
of such sensitive information, production is not warranted. The
Defendants are therefore directed to turn over only the approved
relevant contact information in their possession. The parties are
directed to meet and confer as to a schedule for Defendants to
produce such contact information.
F. Equitable Tolling
Mr. Gonzalez seeks equitable tolling of the FLSA statute of
limitations until such time as they are able to send notice to
potential opt-in plaintiffs. The Defendants have not objected.
Equitable tolling is only appropriate "in rare and exceptional
circumstances, where a plaintiff has been prevented in some
extraordinary way from exercising his rights." However, "the delay
required to decide a motion may warrant equitable tolling." "While
plaintiffs wishing to pursue their rights cannot sit on them
indefinitely, those whose putative class representatives and their
counsel are diligently and timely pursuing the claims should also
not be penalized due to the courts' heavy dockets and
understandable delays in rulings."
Mr. Gonzalez moved for conditional certification shortly after the
Defendants answered the complaint and court-ordered mediation was
unsuccessful. The motion has been fully briefed for over four
months. "Absent tolling of the limitations period, a substantial
number of class members may now be time-barred through no fault of
counsel or the class representative." Accordingly, the statute of
limitations will be tolled as of the date of the filing of
Gonzalez's motion.
III. Conclusion
For the reasons he set forth, Judge Ramos granted Gonzalez's motion
for conditional certification for a collective action on behalf of
all current and former non-exempt employees, including but not
limited to waiters, runners, bussers, bartenders, cooks, line
cooks, dishwashers, and porter persons employed by Hanover at Le
District on or after the date that is three years before the filing
of the complaint.
The proposed notice and consent forms, subject to the change
described, may be distributed by posting at the Defendants' places
of business.
Lastly, Judge Ramos approved equitable tolling of the FLSA statute
of limitations until such time that Gonzalez is able to send notice
to potential opt-in plaintiffs.
The Clerk of Court is respectfully requested to terminate the
motion, Doc. 25.
A full-text copy of the Court's Jan. 21, 2022 Opinion & Order is
available at https://tinyurl.com/4c438wef from Leagle.com.
HOMETOWN AMERICA: Bid to Continue Class Cert. OK'd in Bartok Suit
-----------------------------------------------------------------
In the class action lawsuit captioned as Bartok et al., v. Hometown
America Management, LLC, et al., Case No. 4:21-cv-10790 (D. Mass.),
the Hon. Judge Leo T. Sorokin entered an order that Hometown's
Motion to continue class certification is allowed insofar as the
deadline to file an opposition to the pending motion for class
certification is extended to February 10, 2022.
In adjudicating these motions, the Court is guided by the
principles laid out in Fed. R. Civ. P. 23(c)(1) which specifies
that "at an early practicable time ,the court must determine by
order whether to certify the action as a class action," subject, of
course, to later revision as warranted, and followed by discovery
on the merits and then summary judgment motions.
Indeed, in the course of this proceeding, the parties will confer
amongst themselves and with the Court through case management
conferences as frequently as necessary to determine the best course
forward at each juncture including whether and, if so, when
certification should occur, the Court says.
The nature of suit states real property -- all other real
property.
Hometown America provides real estate management services.[CC]
HOST INTERNATIONAL: Stipulation to Modify Dates Tossed as Moot
--------------------------------------------------------------
In the class action lawsuit captioned as Karla Schroeder v. Host
International, Inc., et al., Case No. 2:21-cv-00428-MCS-E (C.D.
Cal.), the Hon. Judge Mark C. Scarci entered an order:
1. remanding the action to Los Angeles Superior Court, Case
No. 20STCV37525; and
2. denying as moot the joint stipulation to modify dates, the
motion to exclude Plaintiff's expert witness, and motion
for class certification.
This is a wage and hour putative class action for California Labor
Code violations the Plaintiff Karla Schroeder encountered during
her two days of employment with the Defendant in 2019. The
Plaintiff originally filed this case on Sept. 30, 2020 in Los
Angeles County Superior Court and sought certification of two
classes and of nine class claims.
Host International provides catering services to travelers. The
Company offers prepared meals, food and beverage, and merchandise
at airports, on toll roads, restaurants, and other travel and
entertainment venues.
A copy of the Court's order dated Jan. 24, 2022 is available from
PacerMonitor.com at ahttps://bit.ly/3G2wGRB t no extra charge.[CC]
INFINITY INSURANCE: Carr Suit Removed to C.D. California
--------------------------------------------------------
Kevin Carr, individually and on behalf of all others similarly
situated v. INFINITY INSURANCE COMPANY, an Indiana insurance
company, Case No. 21STCV45239 was removed from the Superior Court
of the State of California for the County of Los Angeles, to the
United States District Court for the Central District of California
on Jan. 14, 2022, and assigned Case No. 2:22-cv-00325-MWF-MAR.
The Plaintiff commenced this putative class action asserting a
cause of action for breach of contract, arising from Infinity's
alleged failure to pay certain registration fees when settling
first party total loss claims under its automobile insurance
policies with California insureds. The Plaintiff alleges his
vehicle was insured by an Infinity policy and was damaged in an
accident on or about November 12, 2018, and that Infinity
determined his vehicle to be a total loss. The Plaintiff further
alleges that Infinity improperly failed to include certain
registration fees when determining the "actual cash value" payment
owed him under his Infinity policy and thereby breached the policy.
On the basis of those allegations, the Complaint asserts a cause of
action for breach of contract.[BN]
The Defendant is represented by:
Sonia R. Martin, Esq.
Samuel D. Jubelirer, Esq.
DENTONS US LLP
1999 Harrison Street, Suite 1300
Oakland, CA 94612-4709
Phone: 415 882 5000
Facsimile: 415 882 0300
Email: sonia.martin@dentons.com
samuel.jubelirer@dentons.com
- and -
Mark L. Hanover, Esq.
DENTONS US LLP
233 S. Wacker Drive, Suite 5900
Chicago, IL 60606-6361
Phone: 312 876 8000
Facsimile: 312 876 7934
Email: mark.hanover@dentons.com
INTERCONTINENTAL CAPITAL: Faces Campbell Labor Suit in E.D. Va.
---------------------------------------------------------------
TONYA CAMPBELL and JOHN PADEN, individually and on behalf of all
others similarly situated, Plaintiffs v. INTERCONTINENTAL CAPITAL
GROUP, INC., Defendant, Case No. 3:22-cv-00034-DJN (E.D. Va.,
January 21, 2022) is a class action against the Defendant for
breach of a common contract and violations of the Fair Labor
Standards Act, the New York Labor Law, the Virginia Wage Payment
Act, and the Virginia Overtime Wage Act.
Plaintiffs Campbell and Paden worked for the Defendant in Virginia
as a mortgage loan officer from August 17, 2020 to September 30,
2021 and from October 20, 2020 to September 30, 2021,
respectively.
Intercontinental Capital Group, Inc. is a mortgage loan seller with
its headquarters located at 265 Broadhollow Rd., Ste. 220,
Melville, New York. [BN]
The Plaintiffs are represented by:
Timothy Coffield, Esq.
COFFIELD PLC
106-F Melbourne Park Circle
Charlottesville, VA 22901
Telephone: (434) 218-3133
Facsimile: (434) 321-1636
E-mail: tc@coffieldlaw.com
- and –
Craig Juraj Curwood, Esq.
Zev Antell, Esq.
BUTLERCURWOOD, PLC
140 Virginia Street, Suite 302
Richmond, VA 23219
Telephone: (804) 648-4848
E-mail: craig@butlercurwood.com
zev@butlercurwood.com
JAMES CUMMINS: Miller Files ADA Suit in S.D. New York
-----------------------------------------------------
A class action lawsuit has been filed against James Cummins
Bookseller, Inc. The case is styled as Kimberly Miller, on behalf
of herself and all other persons similarly situated v. James
Cummins Bookseller, Inc., Case No. 1:22-cv-00696 (S.D.N.Y., Jan.
26, 2022).
The lawsuit is brought over alleged violation of the Americans with
Disabilities Act.
James Cummins Bookseller -- https://www.jamescumminsbookseller.com/
-- has been selling rare books, autographs and first editions of
all kinds since 1978.[BN]
The Plaintiff is represented by:
Michael A. LaBollita, Esq.
GOTTLIEB & ASSOCIATES
150 E. 18th Street, Suite Phr
New York, NY 10003
Phone: (212) 228-9795
Email: michael@gottlieb.legal
JUMIO INC: Faces Another Biometrics Privacy Class Action Lawsuit
----------------------------------------------------------------
Jonathan Bilyk, writing for Cook County Record, reports that online
ID verification provider Jumio has been hit with yet another class
action lawsuit under Illinois' biometrics privacy law, as
plaintiffs assert the company has continued to improperly scan the
faces of Illinois customers after signing a $7 million settlement
in mid-2020 to end similar claims in a similar lawsuit under the
same law.
On Jan. 12, attorneys with the firm of Edelson PC, of Chicago,
filed suit in Cook County Circuit Court against Jumio,
headquartered in Palo Alto, California.
The complaint focuses on Jumio's use of facial recognition
technology in software it provides to help other companies, who
operate apps and platforms used by consumers, verify the identities
of their customers.
According to Jumio's website, the company provides ID verification
services to a wide range of online providers, including Equifax,
Microsoft, Oracle and many others engaged in banking, finance,
gaming, fraud protection and online security, among other
services.
This new lawsuit was brought on behalf of named plaintiff Cory
Davis, identified as a resident of Cook County, who allegedly used
Jumio to verify his identity when he signed up to use the
cryptocurrency trading app, Binance.
According to the complaint, Davis, like other Binance users, was
required to upload photos of his drivers license, and then take and
upload a selfie photo, to prove his identity before he could buy,
sell or store cryptocurrency on Binance.
The complaint asserts Jumio then scanned those images, and created
and stored a template of Davis' facial geometry, which Binance
could then use to again verify Davis' identity when he logged on in
the future to conduct more business on the app.
The lawsuit does not name Binance or any other company as
defendants.
While recognizing the commercial need for identify verification
services, the lawsuit claims Jumio violated the Illinois Biometric
Information Privacy Act by scanning and storing the facial images
without first securing written consent from Davis and other users,
and without providing certain notices concerning how the data would
be stored, used, shared and ultimately destroyed, as allegedly
required by the BIPA law.
While on the books since 2008, the BIPA law has been used by a
growing cadre of plaintiffs' lawyers, including the Edelson firm,
to target businesses of many different types and sizes, from large
tech companies to much smaller employers operating in Illinois.
The bulk of the thousands of such lawsuits filed since 2015 have
targeted employers over identity-verifying fingerprint scans
required of workers punching the clock in the workplace. But a
growing number of BIPA class actions in more recent months have
taken aim at companies using facial recognition systems, either to
boost security, track workers, verify identity or help customers
purchase eyewear and cosmetics from home.
The potential payoffs to such class actions can be significant.
Under the law, plaintiffs can demand damages of $1,000-$5,000 per
violation. Courts have interpreted the law to define individual
violations as each time a company or program scans a person's
biometric identifiers, like fingerprints or facial geometry.
Courts have also, to this point, routinely shot down attempts by
businesses to defeat such lawsuits or even relieve some of the risk
of potentially crippling payouts. That has set the stage for a
recent swath of settlements, running from the hundreds of thousands
of dollars to as much as $25 million or much more.
Facebook, for instance, settled claims against it, over its photo
tagging systems, for $650 million.
Jumio has also been sued previously under BIPA, and settled.
In 2020, lawyers with the Chicago firm of McGuire Law P.C., walked
away with more than $2.8 million in fees from a $7 million
settlement deal. The firm had filed suit in 2019, also in Cook
County court, on behalf of a class of people who had used Jumio and
allegedly also had their faces scanned from December 2013 to
December 2019.
In the new complaint, the Edelson lawyers specifically reference
that settlement. But they assert Jumio did not alter its policies
or behavior, which, they said, has spurred the new lawsuit and
demands for another payout from Jumio.
". . . Jumio failed to address these concerns, and it continues to
collect, store, and use consumers' biometric data in violation of
BIPA by using facial recognition technology," the plaintiffs said.
". . . Despite BIPA being in force for over a decade and Jumio
being bound by a prior settlement agreement to quickly bring itself
into compliance with the law, Jumio persists to this day in
violating BIPA through the operation of its biometric
identification service."
The lawsuit seeks to expand the action include everyone in Illinois
who has used Jumio to verify their identity when using an online
service. The complaint does not specifically limit the class to
only those who used Jumio since December 2019.
However, the complaint says the class would exclude anyone "whose
claims in this matter have been finally adjudicated or otherwise
released."
As in the previous lawsuit, plaintiffs are seeking damages of up to
$5,000 per violation. The complaint asserts there are at least
hundreds of people who could be included in the class action.
Plaintiffs are represented in the action by attorneys J. Eli
Wade-Scott and Schuyler Ufkes, of the Edelson firm. [GN]
KB'S BBQ: Cedillo Sues Over Unpaid Overtime for Restaurant Staff
----------------------------------------------------------------
LUIS CEDILLO, individually and on behalf of all others similarly
situated, Plaintiff v. KB'S BBQ SMOKEHOUSE, LLC, KYLE BENSON and
BLAIR SMITH a/k/a BLAIR BENSON, Defendants, Case No. 2:22-cv-00284
(D.N.J., January 21, 2022) is a class action against the Defendants
for violation of the Fair Labor Standards Act and the New Jersey
State Wage and Hour Law by failing to compensate the Plaintiff and
similarly situated restaurant employees overtime pay for all hours
worked in excess of 40 hours in a workweek.
The Plaintiff was employed as a dishwasher, then a prep cook, and
finally a cook at the Defendants' restaurant in Irvington, New
Jersey from March 2020 through October 2021.
KB's BBQ Smokehouse, LLC is a catering company, with its
headquarters located at 1077 Stuyvesant Avenue in Irvington, New
Jersey. [BN]
The Plaintiff is represented by:
Andrew I. Glenn, Esq.
Jodi J. Jaffe, Esq.
JAFFE GLENN LAW GROUP, P.A.
300 Carnegie Center, Suite 150
Princeton, NJ 08540
Telephone: (201) 687-9977
Facsimile: (201) 595-0308
E-mail: Aglenn@jaffeglenn.com
jjaffe@JaffeGlenn.com
KIMPTON HOTEL: Class Cert Hearing in Thomas Continued to March 11
------------------------------------------------------------------
In the class action lawsuit captioned as JAKE THOMAS, et al., v.
KIMPTON HOTEL & RESTAURANT GROUP, LLC, Case No. 3:19-cv-01860-MMC
(N.D. Cal.), the Hon. Judge Maxine M. Chesney entered an order
continuing the hearing on plaintiffs' Motion for Class
Certification and defendant's Motion to Exclude the Opinions of
Plaintiffs' Damages Expert from January 28, 2022, to March 11, 16
2022, at 9:00 a.m.
The Kimpton Hotel & Restaurant Group, LLC is a San Francisco,
California, based hotel and restaurant brand owned by IHG Hotels &
Resorts since 2015.
A copy of the Court's order dated Jan. 25, 2022 is available from
PacerMonitor.com at https://bit.ly/35tdGiv at no extra charge.[CC]
LASALLE CORRECTIONS: Stanfield Seeks to Certify Class of Nurses
---------------------------------------------------------------
In the class action lawsuit captioned as Edith Stanfield,
Individually and on Behalf of All Others Similarly Situated, v.
Lasalle Corrections West, LLC, Stanfield v. Lasalle Corrections
West LLC, Case No. 2:21-cv-01535-DJH (D. Ariz.), the Plaintiff asks
the Court to enter an order:
A. Conditionally certifying this case as a collective action
consisting of:
"all hourly Nurses employed by Defendants within the three
years prior to the filing of the Plaintiff's Original
Complaint and to approve notice to those current and
former employees;"
B. Approving Plaintiff's proposed Notice and Consent to Join
and proposed method of distribution including mailing and
emailing;
C. Approving the form and content;
D. directing the Defendant to produce the requested contact
information of each 2 putative class member in an
electronically importable and malleable electronic format,
such as Excel, within seven days after this Court's Order
is entered;
E. Allowing for an opt-in period of 90 days, to begin when
Defendant produces the names and contact information for
the class members, in which class members may submit
Consents to Join this lawsuit as opt-in plaintiffs;
F. Awarding costs and a reasonable attorney's fee and grant
all other relief to which Plaintiff may be entitled,
whether specifically prayed for or not.
The Plaintiff worked as an hourly Nurse for Defendant Lasalle
Corrections West, LLC in Arizona. The Plaintiff brought this suit
individually and on behalf of all other current and former hourly
Nurses who worked for Defendant and are similarly situated to
Plaintiff, to recover unpaid overtime wages, liquidated damages,
prejudgment interest, and reasonable attorney's fees pursuant to
Section 216(b) of the Fair Labor Standards Act (FLSA).
LaSalle Corrections develops and operates correctional centers
throughout the States of Louisiana, Texas, New Mexico, Arizona, and
Georgia.
A copy of the Plaintiff's motion to certify class dated Jan. 24,
2022 is available from PacerMonitor.com at https://bit.ly/35hNual
at no extra charge.[CC]
The Plaintiff is represented by:
Courtney Lowery, Esq.
SANFORD LAW FIRM, PLLC
Kirkpatrick Plaza
10800 Financial Centre Pkwy, Suite 510
Little Rock, AR 72211
Telephone: (501) 221-0088
Facsimile: (888) 787-2040
E-mail: courtney@sanfordlawfirm.com
The Defendant is represented by:
Brian Paino, Esq.
Camille Bryant, Esq.
Mag Bickford, Esq.
McGLINCHY STAFFORD
18201 Von Karman Avenue, Suite 350
Irvine, CA 92612
Telephone: (949) 381-5900
E-mail: bpaindo@mcglinchey.com
cbryant@mcglinchey.com
mbickford@mcglinchey.com
- and -
Lori Wright Keffer, Esq.
SHERMAN & HOWARD
201 East Washington Street, Suite 800
Phoenix, AZ 85004
Telephone: (602) 240-3068
E-mail: lkeffer@shermanhoward.com
LEXISNEXIS RISK: Clark FCRA Suit Transferred to E.D. Virginia
-------------------------------------------------------------
The case styled as Michael G. Clark, Christopher Peterson, on
behalf of themselves and all others similarly situated v.
Lexisnexis Risk Solutions, Inc., Case No. 0:20-cv-01920, was
transferred from the U.S. District Court for the District of
Minnesota, to the U.S. District Court for the Eastern District of
Virginia on Jan. 26, 2022.
The District Court Clerk assigned Case No. 3:22-cv-00042-JAG to the
proceeding.
The lawsuit is brought over alleged violation of the Fair Credit
Reporting Act.
LexisNexis Risk Solutions -- https://risk.lexisnexis.com/ -- is a
global data and analytics company that provides data and technology
services, analytics, predictive insights and fraud prevention for a
wide range of industries.[BN]
The Plaintiffs are represented by:
E. Michelle Drake, Esq.
John G. Albanese, Esq.
BERGER MONTAGUE PC
1229 Tyler Street NE, Suite 205
Minneapolis, MN 55413
Phone: (612) 594-5933
Fax: (612) 584-4470
Email: emdrake@bm.net
jalbanese@bm.net
- and -
James A Francis, Esq.
Jordan M. Sartell, 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
jsartell@consumerlawfirm.com
- and -
Todd M Murray, Esq.
FRIEDMAN MURRAY, PLLC
1400 Van Buren Street NE, Suite 200-222
Minneapolis, MN 55413
Phone: (612) 564-4025
Email: todd@friedmanmurray.com
The Defendant is represented by:
James F. McCabe, Esq.
ALSTON & BIRD
560 Mission Street, Suite 2100
San Francisco, CA 94105
Phone: (415) 243-1047
Email: jim.mccabe@alston.com
- and -
Joseph G Schmitt, Esq.
NILAN JOHNSON LEWIS PA
250 Marquette Avenue South, Suite 800
Minneapolis, MN 55401
Phone: (612) 305-7500
Fax: (612) 305-7501
Email: jschmitt@nilanjohnson.com
- and -
Julie Diane Hoffmeister, Esq.
TROUTMAN PEPPER HAMILTON SANDERS LLP (RICHMOND)
1001 Haxall Point, Suite 1500
Richmond, VA 23219
Phone: (804) 697-1200
Email: julie.hoffmeister@troutmansanders.com
- and -
Ronald Irvin Raether, Jr., Esq.
TROUTMAN PEPPER HAMILTON SANDERS LLP (CA/NA)
5 Park Plaza, Suite 1400
Irvine, CA 92614
Phone: (937) 227-3733
Fax: (937) 227-3717
Email: ronald.raether@troutmansanders.com
LINEAR MOTORS: Sessa Appeals Summary Judgment in FCRA Suit
----------------------------------------------------------
Plaintiff Gia Sessa filed an appeal from a court ruling entered in
the lawsuit entitled GIA SESSA, on behalf of herself and all others
similarly situated, v. LINEAR MOTORS, LLC, et al., Case No.
7:19-cv-09914-KMK, in the United States District Court for the
Southern District of New York.
The Plaintiff brings this putative class action suit against
Defendants Linear Motors, LLC d/b/a/ Curry Hyundai Subaru; Hudson
Valley Federal Credit Union; CULA, LLC; and TransUnion, LLC,
asserting that they hid certain fees and taxes that she paid upon
leasing a car in violation of the Consumer Leasing Act, the New
York Vehicle and Traffic Law, and the New York General Business
Law. She further alleges that Defendant TransUnion failed to
accurately report her debt obligations vis-a-vis her vehicle lease
in violation of the Fair Credit Reporting Act and the New York
General Business Law.
As reported in the Class Action Reporter on Jan. 4, 2022, the Hon.
Judge Kenneth M. Karas entered an order granting the Defendant's
Motion for Summary Judgment. The Clerk of Court was directed to
terminate the pending Motion, enter judgment for Defendant, and
close this case.
Judge Karas opined that the Plaintiff does not raise any other
allegations of inaccuracy. Plaintiff does not suggest that
pertinent or material information was missing or omitted in
TransUnion's credit reporting regarding the Plaintiff, nor does
Plaintiff suggest that furnishers, the credit rating agency, and
third parties were misaligned in their understanding of the
obligation due to strange verbiage or errant annotation. Thus,
TransUnion's report cannot be said to be misleading or patently
inaccurate.
Because "Plaintiff's complaint pleaded only speculative legal
inaccuracies," Defendant's report is considered accurate pursuant
to the FCRA, and as a result, Plaintiff cannot sustain a claim
thereunder. For this reason, the TransUnion's Motion for summary
judgment must be granted, ruled the Court.
The Plaintiff is taking an appeal from this order.
The appellate case is captioned as Sessa v. Linear Motors, LLC,
Case No. 22-87, in the United States Court of Appeals for the
Second Circuit, filed on Jan. 13, 2022.[BN]
Plaintiff-Appellant GIA SESSA, on behalf of herself and all others
similarly situated, is represented by:
Daniel A. Schlanger, Esq.
Evan S. Rothfarb, Esq.
SCHLANGER LAW GROUP LLP
80 Broad Street, Suite 1301
New York, NY 10004
Telephone: (212) 500-6114
Facsimile: (646) 612-7996
E-mail: erothfarb@consumerprotection.net
dschlanger@consumerprotection.net
LION HEART: Miller Files ADA Suit in S.D. New York
--------------------------------------------------
A class action lawsuit has been filed against Lion Heart
Autographs, Inc. The case is styled as Kimberly Miller, on behalf
of herself and all other persons similarly situated v. Lion Heart
Autographs, Inc., Case No. 1:22-cv-00697 (S.D.N.Y., Jan. 26,
2022).
The lawsuit is brought over alleged violation of the Americans with
Disabilities Act.
Lion Heart Autographs -- https://lionheartautographs.com/ -- is the
premier historical manuscript dealership, specializing in art,
history, literature, music, and science.[BN]
The Plaintiff is represented by:
Michael A. LaBollita, Esq.
GOTTLIEB & ASSOCIATES
150 E. 18th Street, Suite Phr
New York, NY 10003
Phone: (212) 228-9795
Email: michael@gottlieb.legal
LIVANOVA PLC: Faces Class Action Over Contaminated Medical Devices
------------------------------------------------------------------
Madeline McNair and Aaron Saltzman, writing for CBC News, report
that Paul Johnson always knew he'd need surgery on his heart after
doctors discovered a defect in his aortic valve when he was 15
years old. In October 2015, at the age of 62, he finally had that
procedure at the Mazankowski Heart Institute in Edmonton.
Now, the 68-year-old sits in constant pain, unable to move freely
around his house on his own. He takes a cocktail of antibiotics and
painkillers every day, and his wife, Cathy Johnson, has become his
full-time caregiver.
During that open heart surgery in 2015, Johnson was exposed to a
slow-growing bacteria, called M. chimaera, that has ravaged his
body.
"The hardest thing is seeing somebody you love in a lot of pain and
not being able to do the things that they want to do in life," said
Cathy.
Johnson is part of a class-action lawsuit that was launched because
contaminated medical devices used in open heart surgeries led to
serious, and in some cases deadly, M. chimaera infections.
Approximately a dozen former patients with confirmed infections or
their families are part of the suit against LivaNova, formerly
known as Sorin, the manufacturers of the Sorin 3T Heater-Cooler
System, a medical device used to regulate the temperature of fluids
during open heart surgeries.
The water tanks on the Sorin 3T Heater-Cooler System were
contaminated with M. chimaera at the manufacturing facility in
Germany, according to the lawsuit, which has been certified by an
Ontario Superior Court judge.
M. chimaera is a common bacteria found in the environment, in soil
and water. Although it rarely leads to infection in humans, when it
does, it can be deadly.
"It's an incredibly serious infection," said Dr. Stephanie Smith,
director of infection prevention and control at the University of
Alberta. "The mortality [rate] is incredibly high."
The heater-cooler medical device, which is essential in open heart
surgeries, did not come into contact with patients.
Instead, the lawsuit alleges, a fan on the machine aerosolized
contaminated water from the device's tanks into the operating
rooms.
"[The bacteria] landed in the open chest of patients, or on some
kind of prosthetic material that was being put into the patient at
the time of their surgery," said Smith, who's part of the team
overseeing the treatment of infected patients in Alberta.
Number of cases in Canada still unknown
The number of M. chimaera infections related to the heater-cooler
devices in Canada is unknown, although there are confirmed cases in
Alberta, Ontario and Quebec.
According to the lawsuit, the last device with a risk of
contamination was pulled from service in July 2018, but symptoms
can take up to five years before they begin to show.
"There's still the possibility of more people becoming infected,"
said Margaret Waddell, one of the lawyers in Toronto leading the
class action.
The action covers plaintiffs who may have been infected between
January 2010 and July 2018, when the devices were used in 35
hospitals across Canada.
In March 2019, LivaNova paid $225 million to settle similar
lawsuits in the United States. Under the agreement, LivaNova made
"no admission of liability."
In a statement to CBC News, LivaNova said over the past several
years it has "implemented a device remediation plan to address the
use of heater-coolers during open-heart surgery to further mitigate
the already low risk of contamination."
But Waddell said the company downplayed the risk of harm.
"If they had said to pull the machines sooner, there would have
been a year and a half of people that weren't exposed to
infection,'' said Waddell.
"There could have been fewer deaths … but now we have to deal
with the consequences of that not happening."
Infections rare, but deadly
One of those deaths was Sheila Hagan-Bloxham's husband of 52 years,
John Bloxham.
"John was not a person who had a vengeful bone in his body. He
would not like the idea of being involved in a lawsuit," said
Hagan-Bloxham. "But he would be adamant that he did not want this
to happen to anybody else."
Bloxham had surgery for an aortic valve replacement in April 2016
at the Mazankowski. He died as a result of M. chimaera infection in
January 2018, two months after doctors confirmed he'd been
infected. By then, it had spread to his bone marrow and his brain.
M. chimaera is a difficult infection to diagnose. Initial symptoms
are generally nonspecific, such as fatigue, fever and night sweats.
Because it can take years for symptoms to present, the infection
has often already spread by the time it is discovered.
"And then it can be incredibly difficult to treat and to cure,"
said Smith.
In Alberta, there have been 10 confirmed cases of M. chimaera
infection related to open heart surgeries. Eight of the patients
have died, said Smith. The surviving two spoke to CBC News.
2 Alberta patients still alive
Initially, Paul Johnson's recovery after his surgery was going
well.
"I met with my cardiologist on a regular basis doing stress tests.
Everything seemed to be progressing nicely."
He stayed active, biking to work and spending his free time
building a small lakefront cabin.
But four years after his surgery, that started to change. Johnson
was short of breath and stamina and developed inexplicable tremors.
It didn't take long for doctors at the Mazankowski to link his
symptoms to his 2015 surgery. Johnson was put on several
antibiotics and underwent surgery to remove the infected tissue
from his heart.
But it was too late. The M. chimaera had spread to his bloodstream,
his brain, his spleen and his spine.
"It's a devastating infection," said Cathy.
Johnson has had two spinal surgeries to remove the infection, but
his most recent PET scan showed the surgeries didn't work. The
Johnsons are hoping doctors can find another treatment.
"To find anything new is kind of a Hail Mary at this point," said
Cathy.
Company issued notice in 2015
LivaNova became aware of the contamination at the manufacturing
facility in 2014, according to the class action.
In June 2015, the company told hospitals and Health Canada that
bacteria could be aerosolized when the device was in operation.
LivaNova said the "disinfection practices . . . that some users
have been performing are not always conducted according to our
instructions."
The notice advised hospitals to change the water tanks daily,
disinfect the equipment and test the water for bacteria.
"They breached their duty to warn by underplaying the risks of
harm, by saying you're not cleaning the machines properly, it's not
us, it's you," said Waddell.
Emails obtained by CBC News show that two months later, the company
wrote to Health Canada saying it had contacted all hospital
customers and considered the matter closed.
A Health Canada compliance officer agreed, writing: "I agree that
this recall can be considered closed at this time."
But further emails show that various health regions wrote to Health
Canada, raising issues with the practicality of LivaNova's
recommendations. They said the process for decontaminating the
devices was not working and they were having difficulty finding a
lab to test the water.
Internal emails show the Health Canada compliance officer dismissed
the latter complaint, writing: "I can only assume [the health
region] didn't ask the company."
In a statement to CBC News, Health Canada said "directing health
regions to the manufacturer was necessary to ensure that the
manufacturer could investigate customers' concerns and support them
in resolving contamination issues."
Warnings issued
On Oct. 21, 2016, Health Canada sent out a "risk communication"
warning of infections linked to various heater-cooler devices.
Health Canada reminded hospitals to follow the manufacturer's
cleaning instructions, and advised that any devices suspected of
contamination should be removed "from the operating room, or if
feasible, from service as soon as practical."
A week prior, the U.S. Food and Drug Administration had sent out a
notice telling hospitals to immediately pull any device that had
tested positive for M. chimaera, and urging them to "strongly
consider" not using the devices for open chest cardiac surgery.
That was, at that point, the fourth notice issued by the FDA, after
it inspected the manufacturing facility in Germany and previously
warned surgeons to remove devices that "may indicate bacterial
growth."
"Health Canada, certainly in this case, was not proactive in the
same way that the FDA was," said Waddell.
"They expect the manufacturers to be honest, and truthful and
forthcoming," said Waddell.
"But all it takes is any particular manufacturer to downplay,
underplay or not disclose an issue and Health Canada doesn't have
the ability to double check what they're hearing."
In February 2017, Health Canada issued a second, stronger notice,
saying any LivaNova heater cooler devices manufactured before 2014
should be removed from service altogether.
"The regulated party is responsible for initiating all aspects of
the recall, including notifying customers," a spokesperson for
Health Canada told CBC News. "Health Canada oversees and monitors
recalls to ensure that all regulatory requirements are being
met."[GN]
LUXOTTICA OF AMERICA: Gabourel Labor Suit Removed to C.D. Cal.
--------------------------------------------------------------
The case styled PASSION GABOUREL, individually and on behalf of all
others similarly situated v. LUXOTTICA OF AMERICA INC. d/b/a
LENSCRAFTERS; LUXOTTICA RETAIL NORTH AMERICA, INC.; and DOES 1
through 50, inclusive, Case No. 21STCV43173, was removed from the
Superior Court of the State of California, County of Los Angeles,
to the U.S. District Court for the Central District of California
on January 21, 2022.
The Clerk of Court for the Central District of California assigned
Case No. 2:22-cv-00471 to the proceeding.
The case arises from the Defendants' alleged violations of the
California Labor Code and the California's Business and Professions
Code including failure to provide meal periods, failure to
authorize and permit rest periods, failure to pay minimum wages,
failure to pay overtime wages, failure to furnish accurate itemized
wage statements, failure to maintain required records, failure to
indemnify employees for necessary expenditures incurred in
discharge of duties, and unfair and unlawful business practices.
Luxottica of America Inc., doing business as Lenscrafters, is a
sports eyewear company, with its headquarters located in Mason,
Ohio.
Luxottica Retail North America, Inc. is a company that offers
prescription glasses and sunglasses, headquartered in Mason, Ohio.
[BN]
The Defendants are represented by:
Khatereh Sage Fahimi, Esq.
Noah J. Woods, Esq.
LITTLER MENDELSON, P.C.
501 W. Broadway, Suite 900
San Diego, CA 92101-3577
Telephone: (619) 232-0441
Facsimile: (619) 232-4302
E-mail: sfahimi@littler.com
nwoods@littler.com
MAJOR LEAGUE: MInor League Players Oppose Bid to Decertify Class
----------------------------------------------------------------
Peter Hayes, writing for Bloomberg Law, reports that Major League
Baseball is attempting to "rehash" arguments in an effort to
decertify minor league baseball players' wage and hour claims that
were certified as a class action in several states and as a federal
case, the players told the Northern District of California.
The league argued that the players failed to deliver on assurances
to the court that classwide liability was limited to hours spent
performing "team related activities."
And the players' use of arrival and departure times to document
their working hours, "rather than their participation in
'team-related activities,'" would open the league to liability for
more hours. [GN]
MARATHON REFINING: Seeks Continuance to File Class Cert. Opposition
-------------------------------------------------------------------
In the class action lawsuit captioned as JANICE WOOD, WARREN
KOSTENUK, ANTHONY ALFARO and AARON DIETRICH on behalf of themselves
and others similarly situated, v. MARATHON REFINING LOGISTICS
SERVICES LLC and DOES 1 THROUGH AND INCLUDING 25, Case No.
4:19-cv-04287-YGR (N.D. Cal.), the Defendant asks the Court to
enter an order granting its motion for administrative relief
continuing deadline to file class certification opposition.
Pursuant to L.R. 7-11, Marathon moves for an order continuing its
deadline to file an opposition to ther Plaintiffs' motion for class
certification by 45 days. Marathon seeks the continuance in order
to complete deposition discovery to which it is entitled under the
parties' stipulation.
Following a prior discovery dispute, the Magistrate entered a
tentative permitting Marathon to take 14 additional declarant
depositions, and this tentative was then followed by a stipulation
by the parties, entered by the Court, permitting Marathon to take
these depositions, with phone records in hand, prior to the
deadline to oppose class certification. Despite all efforts by
Marathon to complete these depositions, Marathon has only been
provided six depositions of the 14 additional depositions to which
it is entitled.
The Plaintiffs informed Marathon that in light of the discovery
still to be completed they would stipulate to a 45-day extension.
Yet in negotiating the stipulation over the past week, the ability
to file any stipulation has been obstructed by Plaintiffs'
continual insertions and deletions of new conditions 12 and
material that do not accurately reflect the history of Marathon's
efforts and Plaintiffs' delay.
Although Plaintiffs had stipulated (without condition) to a 45 day
extension, they then changed the terms to overturn the prior
deposition stipulation, to no longer grant Marathon the right to
phone records and select deponents of their choosing. They have
also continually revised the stipulation for a continuance with
inaccurate and omitted material in an obvious attempt to
"stipulate" while encouraging the Court to reject the stipulation
and thereby prejudice Marathon's ability to obtain relief. Faced
with an unending series of revisions and new conditions, Marathon
has therefore been forced to file this administrative motion for
relief when it had fully expected this would be filed as a joint
stipulation.
A copy of the Defendant's motion dated Jan. 25, 2022 is available
from PacerMonitor.com at https://bit.ly/3AAJw8j at no extra
charge.[CC]
The Defendant is represented by:
William J. Dritsas, Esq.
Timothy M. Rusche, Esq.
Mike W. Kopp, Esq.
SEYFARTH SHAW LLP
560 Mission Street, 31st Floor
San Francisco, CA 94105
Telephone: (415) 397-2823
Facsimile: (415) 397-8549
E-mail: wdritsas@seyfarth.com
trusche@seyfarth.com
mkopp@seyfarth.com
MARINA CAFE: Bid to Certify Class in Lobato Suit Tossed as Moot
---------------------------------------------------------------
In the class action lawsuit captioned as Lobato v. Great Kills
Marina Cafe Inc., et al., Case No. 1:18-cv-05579 (E.D.N.Y.), the
Hon. Judge Kiyo A. Matsumoto entered an order:
1. finding as moot motion to certify class; and
2. finding as moot Motion for Summary Judgment.
The suit alleges violation of the Fair Labor Standards Act.
The Marina Cafe is a harbor-side restaurant on Staten Island.[CC]
MARY T. BASSETT: Jacobson Sues Over Racial Preferences Policy
-------------------------------------------------------------
William A. Jacobson, on behalf of himself and others similarly
situated v. Mary T. Bassett, in her official capacity as Acting
Commissioner of the New York Department of Health, Case No.
3:22-cv-00033-MAD-ML (N.D.N.Y., Jan. 16, 2022), is brought against
New York's racial preferences policy of making antiviral
treatments.
The New York Department of Health recently established guidelines
for medical providers to give automatic priority to "non-whites"
and individuals with "Hispanic/ Latino ethnicity" in distributing
life-saving COVID-19 treatments. Under these guidelines,
non-Hispanic white individuals who test positive for COVID-19 are
ineligible for oral antiviral treatments unless they also
demonstrate "a medical condition or other factors that increase
their risk for severe illness." But similarly situated "non-white"
or "Hispanic/Latino" individuals are automatically eligible for
these life-saving antiviral treatments—regardless of the
individual's medical situation—because New York has proclaimed
that one's status as a racial or ethnic minority is itself a "risk
factor" for severe illness from COVID-19, even if the individual
has no pre-existing condition that would make him more susceptible
to harm from COVID-19.
The result is that a "non-white" or "Hispanic/Latino" individual
who tests positive for COVID-19 automatically qualifies for these
life-saving oral antiviral treatments, while an identically
situated non-Hispanic/Latino white individual is ineligible for
these treatments unless he demonstrates a "medical condition" or
"risk factor" that increases his risk for severe illness from
COVID-19. New York's use of racial preferences in the distribution
of COVID-19 treatments is patently unconstitutional and should be
immediately enjoined.
Using a patient's skin color or ethnicity as a basis for deciding
who should receive lifesaving medical treatment is appalling. And
directing medical professionals to award or deny medical care based
on immutable characteristics such as skin color, without regard to
the actual health condition of the individual who is seeking these
antiviral treatments, is nothing more than an attempt to establish
a racial hierarchy in the provision of life-saving medicine. Worse
still, New York's racial preferences ignore the obvious
race-neutral alternative policy of making antiviral treatments
available to patients of any race who can demonstrate risk factors,
such as advanced age, obesity, a compromised immune system, or
other medical conditions, says the complaint.
The Plaintiff William A. Jacobson is a citizen and resident of
Tompkins County, New York, where he teaches law at Cornell
University.
The Defendant Mary T. Bassett is the Acting Commissioner of the New
York Department of Health.[BN]
The Plaintiff is represented by:
Gene P. Hamilton, Esq.
Vice-President and General Counsel
AMERICA FIRST LEGAL FOUNDATION
300 Independence Avenue SE
Washington, DC 20003
Phone: (202) 964-3721
Email: gene.hamilton@aflegal.org
- and -
Jonathan F. Mitchell, Esq.
MITCHELL LAW PLLC
111 Congress Avenue, Suite 400
Austin, TX 78701
Phone: (512) 686-3940
Fax: (512) 686-3941
Email: jonathan@mitchell.law
- and -
Adam K. Mortara, Esq.
LAWFAIR LLC
125 South Wacker Drive Suite 300
Chicago, IL 60606
Phone: (773) 750-7154
Email: adam@mortaralaw.com
- and -
James P. Trainor, Esq.
TRAINOR LAW PLLC
2452 U.S. Route 9
Malta, NY 12020
Phone: 518-899-9200
Fax: 518-899-9300
Email: jamest@trainor-lawfirm.com
- and -
Jeffrey Harris, Esq.
Michael Connolly, Esq.
James Hasson, Esq.
CONSOVOY MCCARTHY PLLC
1600 Wilson Boulevard, Suite 700
Phone: (703) 243-9423
Arlington, VA 22209
Email: jeff@consovoymccarthy.com
mike@consovoymccarthy.com
james@consovoymccarthy.com
MDL 2924: Protocol for Depositions in Zantac Liability Suit OK'd
----------------------------------------------------------------
In the case, IN RE: ZANTAC (RANITIDINE) PRODUCTS LIABILITY
LITIGATION, MDL NO. 2924, No. 20-MD-2924 (S.D. Fla.), Judge Robin
L. Rosenberg of the U.S. District Court for the Southern District
of Florida issued Pretrial Order No. 71 relating to the protocol
for conducting depositions relating to the pending putative class
actions addressed in the Consolidated Economic Loss and
Consolidated Medical Monitoring Complaints.
Pursuant to Federal Rules of Civil Procedure 30 and 45, the
Plaintiffs and MDL Defendants jointly stipulate to the protocol.
The Order applies to fact depositions of any MDL putative class
representatives, their health care providers, legal representatives
(in the event, for example, of the involvement of estates or
incompetent persons), and all other fact witnesses relating to the
pending putative class actions. For avoidance of doubt, the Order
does not apply to (i) deponents who are currently or were formerly
employees of any MDL Defendant, including any depositions pursuant
to Rule 30(b)(6); or (ii) depositions of expert witnesses.
The protocol covers Scope, Cooperation, Number of Depositions,
Scheduling, Service, and Contents of Notice, Attendance and
Participation, Location and Coordination of Depositions, and
Deposition Examinations.
Regarding the marking of deposition exhibits, each document
referred to at a deposition will be referred to by its
alpha-numeric production number except in the case of documents
that do not have production numbering at the time of the
deposition. Documents that are produced in native format will have
the slip sheet with the Bates number affixed to the front of the
document. The court reporter for each deposition will include in
each deposition transcript a list of the exhibits referenced in the
deposition. The court reporter will assign exhibit number blocks
for each deposition and will make sure that duplicative or
overlapping exhibit numbers are not assigned. The counsel will
attempt to use the previously marked exhibit number in subsequent
depositions rather than re-marking the same exhibit with different
exhibit numbers.
A full-text copy of the Court's Jan. 19, 2022 Pretrial Order is
available at https://tinyurl.com/2a84ueae from Leagle.com.
MESA AIR: Rule 23 Class Certified in Lowthorp Securities Suit
-------------------------------------------------------------
In the class action lawsuit captioned as David G. Lowthorp, v. Mesa
Air Group Incorporated, et al., Case No. 2:20-cv-00648-MT (D.
Ariz.), the Hon. Judge Michael T. Liburdi entered an order:
1. certifying action to proceed as a class action pursuant to
Rule 23 of the Federal Rules of Civil Procedure and shall
consist of a "Class" of:
"all individuals and entities that purchased or otherwise
acquired Mesa's securities pursuant and/or traceable to
the Company's initial public offering commenced on or
around August 9, 2018, and were damaged thereby."
Excluded from the Class are the Company, its officers and
directors, employees, affiliates, legal representatives,
heirs, predecessors, successors and assigns, and any
entity in which the Company has a controlling interest or
of which the Company is a parent or subsidiary, and the
Underwriter Defendants;
2. designating Lead Plaintiff DeKalb County Pension Fund as
the Class representative; and
3. appointing Faruqi & Faruqi, LLC is appointed as Lead
Counsel for the Class and The DeConcini Firm is appointed
as Liaison Counsel for the Class pursuant to Rule 23(g).
The Court said, "The parties reserve all rights and arguments that
the parties may make in connection with this action -- other than
that the 28 requirements of Rule 23 have been met -- including
without limitation all arguments - about negative causation, due
diligence, and whether any class member suffered damages.
Stipulation is without prejudice to: (a) the right of any party to
bring an appropriate motion at a later time to seek to alter or
amend the Order certifying the class, including to decertify,
limit, extend, or otherwise modify or redefine the Class, including
without limitation (i) to exclude purchasers who sold all of their
Mesa securities prior to the alleged correct disclosure dated May
10, 2019, and/or (ii) based on arguments relating to Without
limiting the prior sentence and for the avoidance of doubt. Within
45 days of entry of this Order, Lead Counsel, after meeting and
conferring with counsel for Defendants, shall submit to the Court
for its review a proposed form of notice and a proposed schedule
for disseminating notice to the Class."
On April 1, 2020, Plaintiff David Lowthorp filed a putative class
action complaint alleging violations of Sections 11, 12(a)(2),
and/or 15 of the Securities Act of 1933 against the Defendants.
On June 22, 2020, the Court appointed DeKalb County Pension Fund as
Lead Plaintiff. On August 17, 2020, Lead Plaintiff filed an Amended
Class Action Complaint. On October 1, 2020, the Mesa Defendants
filed a Motion to Dismiss the Amended Complaint, which the
Underwriter Defendants joined.
On July 22, 2021, the Court granted in part and denied in part the
Mesa Defendants' Motion to Dismiss. On September 3, 2021, the Mesa
Defendants filed their Answer to the Amended Class Action
Complaint, and on September 15, 2021, the Underwriter Defendants
filed their Answer to the Amended Class Action Complaint.
The Defendants include Mesa Air Group, Inc. Jonathan G. Ornstein,
Michael J. Lotz, Daniel J. Altobello, Ellen N. Artist, Mitchell
Gordon, Dana J. Lockhart, G. Grant Lyon, Giacomo Picco, Harvey
Schiller, and Don Skiados (the "Mesa Defendants"), and Raymond
James & Associates, Inc., Merrill Lynch, Pierce, Fenner & Smith
Incorporated, Cowen and Company, LLC, Stifel, Nicolaus & Company,
Incorporated, and Imperial Capital, LLC (the "Underwriter
Defendants").
Mesa Air provides airlines services. The Company offers passenger
transportation and regional air services.
A copy of the Court's order dated Jan. 24, 2022 is available from
PacerMonitor.com at https://bit.ly/3nWYYGO at no extra charge.[CC]
META PLATFORMS: Faces $3.2-Billion Class Action Over Unfair Pricing
-------------------------------------------------------------------
Customer Data Platform Institute reports that the cost for
exploiting 44 million UK names? Great Britain's Financial Conduct
Authority (FCA) just pegged it at $3.2 billion, a number large
enough that Meta might notice. The lawsuit, brought on behalf of
the British people who used Facebook from 2015 to 2019, accused the
company of violating the 1998 Competition Act with unfair pricing.
[GN]
META PLATFORMS: Faces Suit for Harvesting Minors' Data for Profit
-----------------------------------------------------------------
Erin Shaak, writing for ClassAction.org, reports that a proposed
class action claims Meta Platforms (formerly Facebook), CEO Mark
Zuckerberg and Alabama-based data center operator Starbelt, LLC
have engaged in a "digital conspiracy" whereby the companies have
harvested and profited from minors' data in violation of their
privacy rights.
The 55-page antitrust lawsuit, filed on January 1 by the parents of
seven minors, alleges the defendants have illegally farmed,
trafficked and stored a "Pandora's box of minors [sic] images" and
other information, such as their locations and biometric data, to
develop a "digital dossier" of each user that can be monetized by
Meta for profit and for a different purpose than what the social
media platform has promised.
"Defendants have accumulated vasts [sic] amounts of personal
information to include biometric facial recognition markers in
violation of individual information privacy rights of minors as set
out herein," the complaint states, alleging the defendants have
infringed upon consumers' reasonable expectations of privacy and
unlawfully used their data for commercial purposes.
The lawsuit argues that Facebook's 2.85 billion active monthly
users, in particular minors, did not consent to the unlawful
harvesting and disclosing of their personal information, which
includes biometric facial templates extracted from images and
videos uploaded to the social media platform through facial
recognition software, to third parties for profit. Although the
defendants represented that they would not unlawfully acquire and
disclose users' information, the trafficking of minors' images has
occurred "on an unfathomable scale," according to the complaint.
The case contends that Facebook's recent rebranding and name change
to Meta Platforms in October 2021 evidences that data harvesting is
the "focal point" of the defendants' profit center, and reflects
the parties' intent to use minors' illegally acquired information
to build a virtual reality world that is essentially "a video game
using images of minors and others without proper legal
permission."
The lawsuit further argues that although Meta announced in November
2021 that it would remove its facial recognition feature and delete
the facial templates it previously collected from users' photos and
videos, the defendants have already profited from and sold minors'
data to third parties in violation of their privacy rights.
"This transition to 'Meta' follows no less than four (4) years of
minors' image harvesting, biometric marking and trafficking," the
complaint attests.
The lawsuit was filed on behalf of over two million Alabama
Facebook users, or alternatively, more than 285 million U.S. users,
whose images, digital identities, personal information and friends
"network[s]" have been utilized by Facebook, allegedly in violation
of antitrust laws. [GN]
MICHAELS ORGANIZATION: Third Joint Bid to Extend CMO Dates Filed
----------------------------------------------------------------
In the class action lawsuit captioned as JOSHUA LENZ, et al.,
individually and on behalf of all others similarly situated, v. THE
MICHAELS ORGANIZATION, LLC, MICHAELS MANAGEMENT SERVICES, INC.,
INTERSTATE REALTY MANAGEMENT COMPANY, AMC EAST COMMUNITIES, LLC,
and CLARK MACDILL DESIGN BUILD LLC, Case No. 8:19-cv-02950-TPB-AEP
(M.D. Fla.), the Parties ask the Court to enter an order extending
the case management order timeline, with pretrial/trial deadlines
adjusted and enlarged 90 days for all filing/trial deadlines and
120 days for expert reports according to the following proposed
schedule:
The Plaintiffs are Joshua Lenz, Traci Lenz, Jason Norquist, Amie
Norquist, Ryan Morgan, Erica Morgan, Gary Elbon, Kayla Elbon, Jason
Genrich, and Jenny Genrich.
Event Current Proposed
Deadline Deadline
-- Substantial Completion N/A April 14, 2022
of the Michaels
Defendants' ESI
Production:
-- Deadline for All Fact N/A May 19, 2022
Witnesses Represented
by Defense Counsel to
be Available for
Deposition:
-- Plaintiffs' Expert Feb. 14, 2022 June 14, 2022
Reports:
-- Defendants' Expert March 15, 2022 July 14, 2022
Reports:
-- Plaintiffs' Motion April 14, 2022 July 14, 2022
for Class
Certification:
-- Defendants' May 27, 2022 Aug. 27, 2022
Opposition to
Class Certification:
-- Plaintiffs' Reply June 27, 2022 Sept. 27, 2022
in Support of Class
Certification:
-- Discovery Deadline: Aug. 29, 2022 Nov. 29, 2022
-- Dispositive Motion Sept. 26, 2022 Dec. 23, 2022
Deadline:
-- Daubert Motion Oct. 3, 2022 Jan. 6, 2023
Deadline:
-- Trial Term Feb. 2023 May 2023
On March 20, 2020, a Case Management and Scheduling Order ("CMO')
was entered. On March 18, 2021, the Parties jointly filed a Motion
to Modify Case Management and Extend Pretrial/Trial deadlines based
upon unforeseen delays in completing discovery.
With good cause shown, the Court granted that motion and entered an
Amended Case Management Order on March 30, 2021.
After the entry of the Amended CMO, significant efforts were made
to conduct wide-ranging discovery on this complex proposed Class
Action. Discovery conferences and hearings were held on April 9,
2021, May 6, 2021, May 14, 2021, June 7, 2021 and thereafter, where
Magistrate Judge Anthony Porcelli ruled upon various discovery
issues and oversaw the process of discovery.
Despite diligent efforts to meet the Court's scheduling Order, the
Parties required an extension of the case management deadlines and
jointly moved for a consent order on September 1, 2021. Following a
hearing on September 2, 2021, the Court entered an adjusted
schedule that enlarged the various deadlines by three months.
On December 3, 2021, the Defendants advised for the first time that
as many as 750,000 responsive documents held by the Michaels
Defendants (the "Michaels ESI') had yet to be reviewed for
production. Defendants later determined that there were 166,000
potentially responsive Michaels ESI documents.
The Defendants have represented that out of these 166,000
documents, Technology Assisted Review (TAR) has determined that
79,000 documents have a greater than 50% chance of being
responsive.
The Parties have already engaged in extensive discovery, including
document production and multiple rounds of interrogatories. The
Plaintiffs have taken the depositions of seven (7) fact witnesses
and Defendants have taken the depositions of all 10 of the named
Plaintiffs. However, additional depositions were adjourned after
Plaintiffs learned that the Michaels Defendants had not reviewed or
produced their ESI discovery. The Parties anticipate more than a
dozen additional depositions still need to be taken.
On March 4, 2021, the Court entered an Order authorizing Plaintiffs
to issue a subpoena to the United States Air Force ("USAF'). After
the USAF accepted the subpoena and waived formal service. Plaintiff
and counsel for the USAF engaged in protracted discussions to
negotiate the scope of the documents being requested, allow time
for the USAF to investigate the requests, seek modifications of the
scope of the requests and the related searches, conduct the
searches and collection of responsive documents, and review the
documents for production.
The Michaels Organization, LLC provides financial services. The
Company specializes in development, management, construction, and
finance.
A copy of the Parties' motion dated Jan. 24, 2022 is available from
PacerMonitor.com at https://bit.ly/3AEfIb1 at no extra charge.[CC]
The Plaintiffs are represented by:
Shanon J. Carson, Esq.
Glen L. Abramson, Esq.
Lane L. Vines, Esq.
Jacob M. Polakoff, Esq.
BERGER MONTAGUE PC
1818 Market Street, Suite 3600
Philadelphia, PA 19103
Telephone: (215) 875-3000
E-mail: scarson@bm.net
gabramson@bm.net
lvines@bm.net
jpolakoff@bm.net
- and -
Natalie Khawam, Esq.
WHISTLEBLOWER LAW FIRM, PA
400 N. Tampa Street, Suite 1100
Tampa, FL 33602
Telephone: (813) 944-7853
E-mail: nataliek@813whistle.com
The Defendants are represented by:
John A. Rine, Esq.
Robert K. Tucker II, Esq.
Lindsey DeCarlo, Esq.
LEWIS BRISBOIS BISGAARD & SMITH LLP
401 East Jackson Street, Suite 3400
Tampa, FL 33602
Telephone: (813) 739-1900
E-mail: john.rine@lewisbrisbois.com
Robert.Tucker@lewisbrisbois.com
lindsay.decarlo@lewisbois.com
MOREHEAD RESTAURANT: Creecy Sues Over Unpaid Wages, Forced Tipping
------------------------------------------------------------------
DEYSHA CREECY, individually and on behalf of all others similarly
situated, Plaintiff v. MOREHEAD RESTAURANT, LLC dba UPTOWN CABARET;
BRIAN M. DOMINICK; DOE MANAGERS 1 through 3; and DOES 4 through 10,
inclusive, Defendants, Case No. 3:22-cv-00026-FDW-DSC (W.D.N.C.,
January 21, 2022) is a class action against the Defendants for
violations of the Fair Labor Standards Act including failure to pay
minimum wage, illegal kickbacks, unlawful taking of tips, and
forced tipping.
The Plaintiff worked as a dancer/entertainer at Uptown Cabaret,
located at 108 E. Morehead St., Charlotte, North Carolina from
February 2016 to March 2020.
Morehead Restaurant, LLC, doing business as Uptown Cabaret, is an
operator of an adult-oriented entertainment facility located at 108
E. Morehead St., Charlotte, North Carolina. [BN]
The Plaintiff is represented by:
Randall J. Phillips, Esq.
CHARLES G. MONNTETT III & ASSOCIATES
6842 Morrison Boulevard, Suite 100
Charlotte, NC 28211
Telephone: (704) 376-1911
Facsimile: (704) 376-1921
E-mail: rphillips@carolinalaw.com
- and –
John P. Kristensen, Esq.
CARPENTER & ZUCKERMAN
8827 W. Olympic Blvd.
Beverly Hills, CA 90211
Telephone: (310) 507-7924
Facsimile: (310) 507-7906
E-mail: kristensen@cz.law
- and –
Jarrett L. Ellzey, Esq.
ELLZEY & ASSOCIATES, PLLC
1105 Milford Street
Houston, TX
Telephone: (713) 554-2377
Facsimile: (888) 995-3335
E-mail: jarrett@hughesellzey.com
MY PILLOW: Class Status Bid Filing Due September 8
--------------------------------------------------
In the class action lawsuit captioned as Gaudreau v. My Pillow,
Inc., Case No. 6:21-cv-01899 (M.D. Fla.), the Hon. Judge Carlos E.
Mendoza entered an endorsed order granting joint motion requesting
deadline and briefing schedule with respect to plaintiff's motion
for class certification.
-- The Plaintiff's deadline to file a motion for class
certification is on or before September 8, 2022.
-- The Defendant's deadline to file a response is on or before
October 10, 2022.
The nature of suit states Restrictions of Use of Telephone
Equipment.
My Pillow is an American pillow-manufacturing company based in
Chaska, Minnesota. The company was founded in 2009 by Mike Lindell,
who invented and patented My Pillow, an open-cell, poly-foam pillow
design.[CC]
NATIONAL DISTRIBUTION: Appeals Arbitration Bid Ruling in Lira Suit
------------------------------------------------------------------
National Distribution Centers, et al., filed an appeal from a court
ruling entered in the lawsuit styled ANGELO LIRA, individually, and
on behalf of other members of the general public similarly situated
v. NATIONAL DISTRIBUTION CENTERS, LLC DBA NFI INDUSTRIES, an
unknown business entity, and DOES 1 through 100, inclusive, Case
No. 5:21-cv-00672-JGB-KK, in the U.S. District Court for the
Central District of California, Riverside.
A reported in the Class Action Reporter, the lawsuit was removed
from the Superior Court of the State California in and for the
County of San Bernardino to the United States District Court for
the Central District California on April 15, 2021.
The complaint asserts the following claims for relief: unpaid
overtime; unpaid meal period premiums; unpaid rest period premiums;
unpaid minimum wage; final wages not timely paid; wages not timely
paid during employment; non-compliant wage statements; failure to
keep requisite payroll records; unreimbursed business expenses; and
violation of the California Business and Professions Code sections
17200, et seq.
The Plaintiff brings his claims on behalf of a putative class of
"[a]ll current or former hourly-paid or non-exempt employees who
worked for any of the Defendants within the State of California
during the time period four years preceding the filing of this
Complaint to final judgment and who reside in California."
On December 22, 2021, Judge Jesus G. Bernal entered an order (1)
GRANTING Defendants Motion to Compel Arbitration or, in the
Alternative, to Stay Litigation; and (2) VACATING the January 10,
2022 Hearing. The case was STAYED until the completion of
arbitration.
The Defendants seek a review of this order.
The appellate case is captioned as National Distribution Centers,
et al. v. Angelo Lira, Case No. 22-55104, in the United States
Court of Appeals for the Ninth Circuit, filed on Jan. 26, 2022.
The briefing schedule in the Appellate Case states that:
-- Appellants NFI Industries, Inc. and National Distribution
Centers, LLC Mediation Questionnaire is due on Feb. 2, 2022;
-- Appellants NFI Industries, Inc. and National Distribution
Centers, LLC opening brief is due on March 22, 2022;
-- Appellee Angelo Lira answering brief is due on April 21,
2022; and
-- Appellants' optional reply brief is due 21 days after service
of the answering brief.[BN]
Defendants-Appellants NATIONAL DISTRIBUTION CENTERS, LLC, doing
business as NFI Industries; and NFI INDUSTRIES, INC., formerly
known as Doe 1, are represented by:
Joshua J. Cliffe, Esq.
LITTLER MENDELSON, P.C.
333 Bush Street, 34th Floor
San Francisco, CA 94104
Telephone: (415) 433-1940
E-mail: jcliffe@littler.com
- and -
Britney Torres, Esq.
LITTLER MENDELSON
500 Capitol Mall, Suite 2000
Sacramento, CA 95814
Telephone: (916) 830-7252
E-mail: btorres@littler.com
Plaintiff-Appellee ANGELO LIRA, individually, and on behalf of
other members of the general public similarly situated, is
represented by:
Edwin Aiwazian, Esq.
LAWYERS FOR JUSTICE, PC
410 Arden Avenue, Suite 203
Glendale, CA 91203
Telephone: (818) 265-1020
E-mail: edwin@calljustice.com
NATIONWIDE MUTUAL: Smith's Bid for Partial Summary Judgment Granted
-------------------------------------------------------------------
In the case, BRENDAN SMITH, individually and on behalf of all
others similarly situated v. NATIONWIDE MUTUAL INSURANCE COMPANY,
Civil Action No. 19-1217 (E.D. Pa.), Judge Michael M. Baylson of
the U.S. District Court for the Eastern District of Pennsylvania:
(a) denied the Defendant's Motion for Summary Judgment; and
(b) granted the Plaintiff has filed a Motion for Partial
Summary Judgment.
I. Background
On June 26, 2018, Brendan Smith was riding his motorcycle when he
was hit and injured by a driver who was exiting a driveway. Smith's
motorcycle was covered by an insurance policy issued by State Farm
Mutual Automobile Insurance Co. that provided $15,000/$30,000 in
underinsured motorist (UIM) coverage. This is a form of coverage
that comes into play when a tortfeasor injures an insured person
and the tortfeasor's own insurance coverage is insufficient to
fully compensate the injured insured person. The injured insured
person may then draw upon UIM coverage provided by their own
insurer.
Following the accident, Smith received a $25,000 payout from
Allstate Insurance Co., which was the insurer for the other driver
in the accident. On the grounds that the Allstate payout was
insufficient to compensate him for the accident, Smith filed a
claim with State Farm and received $15,000 under his policy's UIM
coverage.
Asserting that the Allstate and State Farms payouts combined were
still insufficient to compensate him, Smith then sought to recover
under a policy purchased by his parents, Jane and Scott Smith.
Smith was residing with his parents at the time and was therefore
covered under their policy as a resident relative. This policy,
which was issued by Nationwide, provided for $50,000/$100,000 in
stacked UIM coverage for two vehicles. "Stacking" is the practice
of allowing insurance coverage of individual vehicles to be
combined to increase the total amount of coverage available to the
insured; coverage for one vehicle can be "stacked" on the coverage
for another vehicle.
Smith filed a claim to recover the Nationwide policy's UIM
benefits. Nationwide denied the claim based on a "household vehicle
exclusion" in the policy. This provision states that there is no
coverage for "bodily injury suffered while occupying a vehicle
owned by you or a relative but not insured for Underinsured
Motorists coverage under this policy; nor to bodily injury from
being hit by any such motor vehicle." The provision further states
that if the insured elected stacked UIM coverage, "this exclusion
does not apply to bodily injury suffered while occupying or struck
by a motor vehicle owned by you or a relative that is insured for
Underinsured Motorists coverage under any policy issued by us or
any affiliated company."
The Plaintiff brought suit against the Defendant, alleging that
Nationwide had improperly denied his claim. He alleges that the
household vehicle exclusion in the Nationwide policy violates
Pennsylvania's Motor Vehicle Financial Responsibility Law (MVFRL)
by improperly abrogating UIM coverage stacking. Seeking to certify
a class of people insured by Nationwide who have been denied UIM
coverage stacking under the household vehicle exclusion, the
Plaintiff filed his putative class action Complaint in the
Philadelphia Court of Common Pleas in February 2019. The Plaintiff
brings a claim for breach of contract and seeks compensatory
damages and declaratory relief.
The Defendant removed the case to federal court in March 2019 and
moved to dismiss the Complaint. The Court denied the Defendant's
motion, concluding that it was "unprepared to determine, at a
motion to dismiss stage, that the household vehicle exception in
the insurance policy at issue does not act as a de facto waiver of
stacked UIM coverage."
Both parties have now moved for summary judgment. The Motions
largely mirror each other. The Defendant wishes the Court to find
that the Nationwide policy's household vehicle exclusion is valid
under the MVFRL -- thus disposing of the Plaintiff's claim --
whereas the Plaintiff wishes the Court to find that the household
vehicle exclusion is invalid under the MVFRL. The Plaintiff also
seeks summary judgment on the more specific question of whether he
is eligible to present a claim for up to $100,000 in UIM coverage
under his parent's Nationwide policy.
The Motions have been thoroughly briefed. The Defendant has filed a
Response in opposition to the Plaintiff's Motion and a Reply in
support of its own. The Plaintiff has filed a Response in
opposition to the Defendant's Motion and a Reply in support of his
own. He has also filed a supplemental brief in support of his
Motion, to which the Defendant responded.
II. Discussion
Central to the parties' arguments is the Pennsylvania Supreme
Court's decision in Gallagher v. GEICO Indemnity Co., 650 Pa. 600,
201 A.3d 131 (2019). Gallagher concerned a household vehicle
exclusion in an insurance policy purchased by plaintiff Brian
Gallagher and sold by defendant GEICO. Gallagher purchased two
policies from GEICO, one for his motorcycle and one for his car,
and elected stacked UIM coverage in both policies. When Gallagher
was in a motorcycle accident with an underinsured driver and filed
claims under both policies, GEICO granted Gallagher's claim for UIM
coverage under the motorcycle policy. However, pursuant to the
household vehicle exclusion, GEICO refused to stack the UIM
coverage in the car policy on the UIM coverage in the motorcycle
policy.
Reviewing the case, the Pennsylvania Supreme Court examined
Subsection 1738(a) of the MVFRL, which "unambiguously states that
the limits of coverage for each vehicle owned by an insured 'shall
be the sum of the limits for each motor vehicle as to which the
injured person is an insured.'" The court held that the MVFRL
requires that stacked UIM coverage "is the default coverage
available to every insured and provides stacked coverage on all
vehicles and all policies." To waive stacked UIM coverage, "an
insurer must provide the insured with a statutorily-prescribed
waiver form, which the named insured must sign if he wishes to
reject the default provision of stacked coverage." The court
concluded that the household vehicle exclusion in Gallagher's
policy violated the MVFRL in "acting as a de facto waiver of
stacked UIM coverage provided for in the MVFRL, despite the
indisputable reality that Gallagher did not sign the
statutorily-prescribed UIM coverage waiver form."
The Plaintiff argues that Gallagher applies straightforwardly to
his own situation. Just as the household vehicle exclusion in GEICO
policy denied Gallagher unwaived stacking benefits, the household
vehicle exclusion in the Nationwide policy denies Smith unwaived
stacking benefits. Therefore, the Nationwide policy's exclusion
violates the MVFRL just as the GEICO policy's exclusion did.
The Defendant counters that factual distinctions between the
present case and Gallagher render Gallagher inapposite. One
significant distinction, the Defendant argues, is that the
household vehicle exclusion in Gallagher categorically blocked UIM
coverage stacking. The household exclusion in the present case, by
contrast, allows for UIM coverage stacking if the stacking is on a
vehicle covered by a policy provided by Nationwide or a Nationwide
affiliate. The Defendant frames the MVFRL, as interpreted in
Gallagher, as requiring a valid waiver of stacked UIM coverage only
if the terms of an insurance policy categorically prohibit
stacking. If the terms of a policy restrict stacking but do allow
for it in certain circumstances, then that restriction can be
applied without any requisite waiver by the insurance purchaser.
The Defendant further argues that insurance providers will be
forced to bear unfair, unforeseen costs if the Court interprets
Gallagher as applying to the present case. It observes that Smith,
unlike Gallagher, did not directly purchase the insurance policy at
issue. Furthermore, the policies for Gallagher's vehicles were both
purchased from GEICO, whereas the policy for Smith's motorcycle and
the policy purchased by Smith's parents were sold by different
insurance providers. Defendant contends that because of this, GEICO
was much better positioned than Nationwide to price into its
premiums the risk associated with the injured driver at issue.
Should the Court find that the MVFRL invalidates the household
vehicle exclusion in the Nationwide policy, the Defendant states
that "there can be little doubt that such a result would require
insurers to price policies based on a wide range of unknown
risks."
There are numerous factual disputes in the case, such as how
Nationwide calculates premiums for UIM coverage and the effect of
Brendan Smith on those calculations. There is no dispute, however,
as to the text of the Nationwide policy's household vehicle
exclusion, that Smith's parents purchased the policy, and that
Smith is insured as a resident relative under the policy. Judge
Baylson can therefore decide the legal question on which the action
hinges because the material and relevant facts are undisputed:
Whether the policy's household vehicle exclusion violates the
MVFRL.
A. Application of Gallagher
Judge Baylson holds that the Defendant's interpretation of the
MVFRL and Gallagher is foreclosed by the recent Pennsylvania
Supreme Court decision in Donovan v. State Farm Mutual Automobile
Insurance Co., 256 A.3d 1145 (Pa. 2021). In Donovan, the court
considered the application of Gallagher to a case involving, like
this one, two separate insurance policies. Plaintiff Corey Donovan,
who was injured in a vehicle covered by its own insurance policy,
sought to stack UIM coverage from a State Farm policy purchased by
his mother, plaintiff Linda Donovan, to whom he was a resident
relative. State Farm refused based, in part, on a household vehicle
exclusion in Linda's policy.
The Donovan decision makes clear that the distinction the Defendant
seeks to draw -- between policy provisions that categorically block
UIM coverage stacking and those that only partially block UIM
coverage stacking, with different waiver requirements for each --
is untenable. The key question is not the extent of the restriction
on stacking, but whether stacking was validly waived. In the case,
the owners of the policy -- Smith's parents -- did not make any
waiver.
The Defendant argues that because Smith waived UIM coverage
stacking in other policies from other providers that he purchased
himself, he should be denied stacking under his parents' policy.
But "it is the coverage elections for the policy under which
coverage is being sought that are controlling, not the coverage
elections of the person seeking coverage." Smith's parents bought
the policy and elected and paid for UIM coverage stacking, and
those insured under the policy, such as Smith, are entitled to its
benefits.
B. Cost Factors
With regard to the Defendant's concerns about costs to insurance
providers, the Defendant cites the Pennsylvania Supreme Court's
discussion of Eichelman v. Nationwide Insurance Co., 711 A.2d 1006
(Pa. 1998), in a post-Gallagher case. In Safe Auto Insurance Co. v.
Oriental-Guillermo, which dealt with a different type of exclusion,
the court approvingly cited Eichelman in asserting that it has
"repeatedly recognized the MVFRL's goal of cost containment." In
Eichelman itself, the court upheld a household exclusion to an
insurance policy, stating that "allowing the 'household exclusion'
language to stand in this case is further bolstered by the intent
behind the MVFRL, to stop the spiraling costs of automobile
insurance in the Commonwealth."
However, Eichleman has little bearing on the present case. As other
courts in this district have noted, "the Eichelman plaintiff did
not have any underinsured motorist coverage on his motorcycle,
however, meaning stacking and stacking waivers were not at issue."
Judge Baylson does not doubt "that cost containment is the
underlying policy rationale of the MVFRL." Nonetheless, Gallagher
and Donovan make clear that the potential of unexpected costs to
insurance providers is not adequate justification for abrogating
UIM coverage stacking as a policy default.
Judge Baylson, therefore, finds that, as in Gallagher and Donovan,
the Nationwide policy's household vehicle exclusion violates
Subsection 1738(a) of the MVFRL.
c. Plaintiff's Motion
The Plaintiff has also requested that the Court finds that he is
eligible to present a claim for up to $100,000 in UIM benefits
under his parent's Nationwide policy. Judge Baylson will grant
partial summary judgment on this issue as well, because the
Defendant cannot deny the Plaintiff's claim based on the household
vehicle exclusion.
III. Conclusion
For the foregoing reasons, Judge Baylson denied the Defendant's
Motion for Summary Judgment and granted the Plaintiff's Motion for
Partial Summary Judgment. An appropriate Order follows.
A full-text copy of the Court's Jan. 19, 2022 Memorandum is
available at https://tinyurl.com/2p98ryra from Leagle.com.
NEW JERSEY: Court Orders More Brief in Support of Writ Petition
---------------------------------------------------------------
In the case, GEORGE B. SMITH, Petitioner v. WARDEN EUGENE CALDWELL,
Respondent, Civ. No. 20-11052 (NLH) (D.N.J.), Judge Noel L. Hillman
of the U.S. District Court for the District of New Jersey ordered
the Petitioner to submit a supplemental brief in support of
petition for writ of habeas corpus under 28 U.S.C. Section 2241.
Petitioner Smith filed his Section 2241 petition challenging his
pretrial detention in the Cumberland County Jail. He alleged that
the conditions of confinement violate the Fourteenth and Eighth
Amendment of the Constitution due to the jail's handling of the
COVID-19 pandemic.
The Court stayed the petition pending the resolution of a class
action, Brown v. Warren, No. 1:20-cv-7907, involving the same
factual and legal issues as the present habeas petition. It expects
the parties in Brown to enter into an amended consent decree.
The Clerk will lift the stay on the matter and return the case to
the Court's active docket. The Clerk will substitute Eugene
Caldwell as the Warden on the docket, Fed. R. Civ. P. 25(d).
The Petitioner will submit a supplemental brief in support of the
Section 2241 petition within 30 days of the Order. The Respondent
will file a supplemental response within 21 days of the
Petitioner's submission.
Finally, the Clerk will send a copy of the Order to the Petitioner
by regular mail.
A full-text copy of the Court's Jan. 19, 2022 Memorandum Order is
available at https://tinyurl.com/3f7468pe from Leagle.com.
George B. Smith Cumberland County Correctional Facility, in
Bridgeton, New Jersey, for the Petitioner, Pro se.
Jennifer Webb-McRae, Cumberland County Prosecutor, Andre R. Araujo,
Assistant Prosecutor Cumberland County Prosecutor's Office, in
Bridgeton, New Jersey, Attorneys for the Respondent.
NEW YORK, NY: Class Certification Hearing Set for Feb. 28
---------------------------------------------------------
In the class action lawsuit captioned as Local 3621, EMS Officers
Union, DC-37, AFSCME, AFL-CIO et al v. City of New York, et al.,
Case No. 1:18-cv-04476 (S.D.N.Y.), the Hon. Judge Lewis J. Liman
entered an order setting a hearing on oral argument from parties
regarding the pending motion for class certification on February
28, 2022 at 12:00 PM.
The hearing will be held in-person in Courtroom 15C at the 500
Pearl Street Courthouse.
The nature of suit states Civil Rights (Employment
Discrimination).[CC]
NEW YORK, NY: Seeks March 17 Extension to Oppose Class Cert Bid
---------------------------------------------------------------
In the class action lawsuit captioned as Allen, et al., v. CITY OF
NEW YORK, et al., Case No. 1:19-cv-03786-JMF (S.D.N.Y.), the
Defendants ask the Court to enter an order extending the time to
oppose the plaintiffs' motion for class certification from January
31, 2022, to March 17, 2022.
The Plaintiffs' counsel consents to this request, and asked that,
with this extension, the deadline for their reply be April 18,
2022. This is defendants' first request for an extension of time to
oppose class certification, Atty. Balog says.
The Defendants seek this extension of time as I have been
shouldering COVID related childcare issues since January 4, 2022,
which were subsequently exacerbated by my entire family, including
myself, successively testing positive for COVID. Fortunately, at
present, these issues have resolved. As a consequence, however, I
was largely unable to make any material
progress on my work and am now dealing with additional immediate
deadlines on my other cases, Atty. Balog adds.
A copy of the Defendants' motion dated Jan. 24, 2022 is available
from PacerMonitor.com at https://bit.ly/3r2Fy5v at no extra
charge.[CC]
The Defendant is represented by:
Aliza J. Balog, Esq.
Georgia M. Pestana, Esq.
THE CITY OF NEW YORK
LAW D EPARTMENT
100 Church Street
New York, NY 10007
Telephone: (212) 356-1104
Facsimile: (212) 356-1148
E-mail: abalog@law.nyc.gov
NORTH ALLEGHENY SCHOOL: Appeals TRO Issuance in ADA Suit
--------------------------------------------------------
NORTH ALLEGHENY SCHOOL DISTRICT, a Pennsylvania governmental
entity, filed an appeal from a court ruling entered in the lawsuit
styled JOHN DOE 1, JANE DOE 1, in their own capacity and as parent
of CHILD DOE 1, JANE DOE 2, in her own capacity and as parent of
CHILD DOE 2 and CHILD DOE 3, and JANE DOE 3, in her own capacity
and as parent of CHILD DOE 4 and on behalf of those similarly
situated, Plaintiffs v. NORTH ALLEGHENY SCHOOL DISTRICT, a
Pennsylvania governmental entity, RICHARD MCCLURE, ELIZABETH
BLACKBURN, MARCIE CROW, LESLIE BRITTON DOZIER, PAIGE HARDY, KEVIN
MAHLER, VIDYA SZYMKOWIAK, ELIZABETH WERNER, SHANNON YEAKEL, all
individual elected officials sued in their individual capacity and
in their capacity as members of the NORTH ALLEGHENY SCHOOL DISTRICT
BOARD OF DIRECTORS, a Pennsylvania elected legislative body, and
NORTH ALLEGHENY SCHOOL DISTRICT BOARD OF DIRECTORS, a Pennsylvania
elected legislative body, Defendants, Case No. 2-22-cv-00055, in
the United States District Court for the Western District of
Pennsylvania.
As reported in the Class Action Reporter, the parents of four
children filed the class action lawsuit on Jan. 11, alleging the
mask policy forces parents of medically vulnerable students to
choose between keeping them at home where "they will likely suffer
continued learning loss" or sending them to school in "an
environment that presents a serious risk to their health and
safety."
District officials acknowledged the court order in an email to
parents on Jan. 17. Officials declined further comment citing the
pending litigation.
The lawsuit does not identify the four students but indicated all
have medical conditions that leave them particularly vulnerable to
covid-19, according to the lawsuit. It also claims that there are
as many as 1,557 district students who are "medically fragile
disabled students who require the protection afforded by universal
masking."
On Jan. 17, 2022, Judge Marilyn J. Horan entered a temporary
restraining order sought by pro-mask parents in North Allegheny
School District, meaning all students, staffers and visitors in
district buildings must wear masks when classes resume Tuesday,
Jan. 18.
The restraining order was requested by parents seeking to overturn
the district's mask-optional policy that they say violates the
Americans with Disabilities Act.
The Defendant seeks a review of the temporary restraining order.
The appellate case is captioned as John Doe 1, et al. v. North
Allegheny School Dist, et al., Case No. 22-1160, in the United
States Court of Appeals for the Third Circuit, filed on Jan. 26,
2022.[BN]
Defendant-Appellant NORTH ALLEGHENY SCHOOL DISTRICT, a Pennsylvania
governmental entity, is represented by:
Steven P. Engel, Esq.
Christina Lane, Esq.
MAIELLO BRUNGO & MAIELLO
Southside Works
424 South 27th Street, Room 210
Pittsburgh, PA 15235
Telephone: (412) 242-4400
Plaintiffs-Appellees JOHN DOE 1, JANE DOE 1, in their own capacity
and as parent of CHILD DOE 1, JANE DOE 2, in her own capacity and
as parent of CHILD DOE 2 and CHILD DOE 3, and JANE DOE 3, in her
own capacity and as parent of CHILD DOE 4 and on behalf of those
similarly situated, are represented by:
Kenneth R. Behrend, Esq.
BEHREND LAW GROUP
428 Forbes Avenue, Suite 1700
Pittsburgh, PA 15219
Telephone: (412) 391-4460
E-mail: krbehrend@behrendlawgroup.com
- and -
Alexander W. Saksen, Esq.
GOLDBERG KAMIN & GARVIN
437 Grant Street
1806 Frick Building
Pittsburgh, PA 15219
Telephone: (412) 281-1119
E-mail: alexanders@gkgattorneys.com
NORTH CAROLINA: Ketchersid's Class Claims Dismissed With Prejudice
------------------------------------------------------------------
Judge Martin Reidinger of the U.S. District Court for the Western
District of North Carolina, Asheville Division, dismissed with
prejudice the Plaintiff's claims asserted on behalf of other
inmates in the case, JAMES LARKIN KETCHERSID, JR., Plaintiff v.
BRETT MURPHY, Defendant, Civil Case No. 1:21-cv-00115-MR
(W.D.N.C.).
I. Background
The matter is before the Court on initial review of the Amended
Complaint. The Plaintiff is proceeding in forma pauperis. The pro
se Plaintiff filed the Complaint pursuant to 42 U.S.C. Section 1983
addressing incidents that allegedly occurred at the Marion
Correctional Institution. Before the Complaint was screened for
frivolity, the Plaintiff filed an Amended Complaint, and then a
Supplemental Complaint, which was stricken.
The Plaintiff was given 30 days to file a Second Amended Complaint,
and he was informed that, if he failed to timely file a Second
Amended Complaint, the Court would proceed on the Amended
Complaint. He has not filed a Second Amended Complaint, and the
time to do so has expired. Accordingly, the Amended Complaint is
now before the Court for initial review.
The Plaintiff names as the sole Defendant Brett Murphy, the
psychologist coordinator at Marion CI, in his individual and
official capacities. The Plaintiff alleges that he was diagnosed in
September 2020 with panic disorder, PTSD, anxiety, and depression,
and that he was labeled as a Level 3 mental health inmate. He
alleges that Marion CI could accommodate only inmates at mental
health Levels 1 and 2, and that Defendant Murphy delayed and denied
adequate care for his serious conditions, which resulted in severe
mental distress, pain, and suffering. He seeks compensatory,
punitive, and nominal damages, and injunctive relief.
Because the Plaintiff is proceeding in forma pauperis, the Court
must review the Amended Complaint to determine whether it is
subject to dismissal on the grounds that it is "(i) frivolous or
malicious; (ii) fails to state a claim on which relief may be
granted; or (iii) seeks monetary relief against a defendant who is
immune from such relief." To state a claim under Section 1983, a
plaintiff must allege that he was "deprived of a right secured by
the Constitution or laws of the United States, and that the alleged
deprivation was committed under color of state law."
II. Discussion
A. Parties
The body of the Amended Complaint refers to individuals who are not
named as Defendants in the caption as required by the Federal Rules
of Civil Procedure. Such claims are nullities and they are
dismissed without prejudice, Judge Reidinger finds.
The Plaintiff purports to sue Defendant Murphy, who appears to be a
state official, in his individual and official capacities. However,
"a suit against a state official in his or her official capacity is
not a suit against the official but rather is a suit against the
official's office." Because a state is not a "person" under Section
1983, state officials acting in their official capacities cannot be
sued for damages thereunder. Furthermore, the Eleventh Amendment
bars suits for monetary damages against the State of North Carolina
and its various agencies. As such, Judge Reidinger holds that the
Plaintiff's claims for damages against the Defendant in his
official capacity do not survive initial review and are dismissed
with prejudice.
Finally, the Plaintiff refers to incidents involving the mental
health needs of other inmates. As a pro se inmate, the Plaintiff is
not qualified to prosecute a class action or assert a claim on
behalf of others. Therefore, to the extent that the Plaintiff
attempts to assert claims on behalf of others, they are dismissed
with prejudice.
B. Deliberate Indifference to a Serious Medical/Mental Need
The Plaintiff alleges that Defendant Murphy: Refused to transfer
him to a facility that could accommodate his Level 3 mental health
needs; ignored the Plaintiff's concerns and "persuaded him to
believe he was receiving the correct amount of medical assistance,"
whereas Murphy was delaying and denying treatment for his "serious
medical need of mental health concerns" including suicidal thought;
and told "the Administration" not to take the Plaintiff's
complaints seriously because he is a troublemaker.
Taking the allegations as true for the purposes of initial review,
and construing all inferences in the Plaintiff's favor, Judge
Reidinger holds that the Plaintiff has plausibly alleged that
Defendant Murphy was deliberately indifferent to his serious
medical/mental health needs. This claim has passed initial review.
III. Conclusion & Order
Judge Reidinger concludes that the Amended Complaint has passed
initial review against Defendant Murphy for deliberate indifference
to serious medical/mental health needs. The claims asserted on
behalf of other inmates, and for damages against Defendant Murphy
in his official capacity are dismissed with prejudice. The
remaining claims are dismissed without prejudice.
The Clerk of Court is respectfully instructed to mail the Plaintiff
an Opt-In/Opt-Out form pursuant to the Standing Order in Misc. Case
No. 3:19-mc-00060-FDW and a copy of the Order.
A full-text copy of the Court's Jan. 19, 2022 Order is available at
https://tinyurl.com/j6z6nft9 from Leagle.com.
NPAS SOLUTIONS: Kansas Court Dismisses Nyanjom FDCPA Class Suit
---------------------------------------------------------------
In the case, KELLY JO NYANJOM, on behalf of herself and others
similarly situated, Plaintiff v. NPAS SOLUTIONS, LLC, Defendant,
Case No. 21-CV-1171-JAR-ADM (D. Kan.), Judge Julie A. Robinson of
the U.S. District Court for the District of Kansas granted the
Defendant's Motion to Dismiss.
I. Introduction
Plaintiff Kelli Jo Nyanjom brings the putative class action against
the Defendant, alleging that the Defendant violated the Fair Debt
Collection Practices Act ("FDCPA") when it communicated her
personal and/or confidential information to a letter vendor in
violation of 15 U.S.C. Section 1692c(b). The Defendant moves to
dismiss for lack of subject-matter jurisdiction under Fed. R. Civ.
P. 12(b)(1) and, alternatively for failure to state a claim under
Rule 12(b)(6) based in part on the argument that the statute is
unconstitutional. The United States has intervened for the limited
purpose of defending the constitutionality of Section 1692c(b).
II. Background
On March 5, 2021, the Defendant caused a written communication to
be sent to the Plaintiff in connection with the collection of a
personal medical debt. This letter disclosed that the Plaintiff is
an alleged debtor, the existence of her alleged debt, and the
"outstanding account balance" on the debt; identified the creditor,
a medical facility; disclosed the date of the patient service at
issue; disclosed account numbers; identified an amount for which
the Defendant would resolve the alleged obligation; and disclosed
"other personal information" specific to the Plaintiff and her
alleged obligation.
The Defendant did not print or mail the March 5 letter to the
Plaintiff itself. Rather, it transmitted the information about the
Plaintiff and her alleged medical debt to a letter vendor,
RevSpring, Inc., that fashioned, printed, and mailed the letter to
the Plaintiff. The Defendant did so even though the Plaintiff did
not provide her consent. The Plaintiff alleges that as a result of
her debt-related information being shared without her knowledge or
consent, the Defendant invaded her privacy, disclosed private facts
about her, and caused her to feel embarrassment
III. Discussion
Where a defendant seeks dismissal under Rule 12(b)(1) and Rule
12(b)(6) in the alternative, "the court must decide first the
12(b)(1) motion for the 12(b)(6) motion would be moot if the court
lacked subject matter jurisdiction." Similarly, courts must
consider nonconstitutional grounds prior to reaching any
constitutional questions. Accordingly, Judge Robinson first
addresses whether the Plaintiff's Complaint adequately alleges
standing.
The Defendant's standing challenge focuses on the "concrete-harm
requirement" of the injury-in-fact inquiry. The Supreme Court
recently explained in TransUnion LLC v. Ramirez that tangible
harms, including monetary harms or physical injury, are among those
that "readily qualify as concrete injuries under Article III."
The Plaintiff alleges the Defendant violated Section 1692c(b) by
communicating with a third-party letter vendor regarding her debt
without consent or permission. She argues that the harm encompassed
in the claim is akin to a traditional American tort, public
disclosure of private facts.
The Defendant argues that such an action requires the Plaintiff to
prove two key elements that are neither alleged nor present on
these facts. The Restatement defines the "Publicity Given to
Private Life" tort as follows: One who gives publicity to a matter
concerning the private life of another is subject to liability to
the other for invasion of his privacy, if the matter publicized is
of a kind that (a) would be highly offensive to a reasonable
person, and (b) is not of legitimate concern to the public.
In sum, Judge Robinson holds that the Plaintiff's failure to
establish a concrete and particularized injury-in-fact sufficient
to establish Article III standing deprives the Court of
subject-matter jurisdiction over her claim. First, she agrees with
the rationale that sharing information about a debtor with a
third-party letter vendor is not sufficiently analogous to an
invasion of privacy. The Plaintiff fails to correlate her alleged
harm with one traditionally recognized by American courts.
Second, she finds this rationale to be consistent with evidence of
congressional intent. Several courts have likened the role of a
letter vendor to a "modern-day stenographer or clerk," noting that
the FDCPA has not prohibited certain communications to such
ministerial entities as they have done with employers.
Finally, while the Tenth Circuit has not ruled on the letter-vendor
theory, it recently held that a single unwanted creditor phone call
in violation of Section 1692c(c) was the same kind of harm
recognized in the common-law tort of intrusion upon seclusion, and
thus the plaintiff had suffered a concrete harm. In the case, the
Plaintiff has failed to allege a concrete injury-in-fact that is
the same in kind as the common-law tort of invasion of privacy.
Accordingly, Judge Robinson will grant the Defendant's Rule
12(b)(1) motion. She does not reach the Defendant's alternative
arguments under Rule 12(b)(6).
IV. Disposition
Judge Robinson granted the Defendant's Motion to Dismiss under Fed.
R. Civ. P. 12(b)(1). She dismissed without prejudice the
Plaintiff's case for lack of Article III standing.
A full-text copy of the Court's Jan. 19, 2022 Memorandum & Order is
available at https://tinyurl.com/2p8zw7jr from Leagle.com.
NRX PHARMACEUTICALS: Faces Class Suit Over Securities Violations
----------------------------------------------------------------
Christina Tabacco, writing for Law Street, reports that a complaint
lodged against clinical-stage small molecule pharmaceutical company
NRx and its CEO and CFO accuses the defendants of securities fraud
in connection with a proposed COVID-19 drug. The Delaware lawsuit
contends that the company misled investors about the drug's
viability, suggesting that it would receive U.S. Food and Drug
Administration (FDA) approval, when in fact the NRx's application
contained data insufficient to warrant it.
The complaint explains that NRx is a Wilmington, Delaware company
with common stock that trades on the Nasdaq Stock Market. It
reportedly "develops various therapeutics for the treatment of
central nervous system disorders and life-threatening pulmonary
diseases," including "ZYESAMI, an investigational pre-commercial
drug for COVID-19 related respiratory failure."
In June 2021, the company announced the filing of its drug
application requesting emergency use authorization for Zyesami to
treat critically ill COVID-19 patients. Over the summer, the
company publicized two more press releases casting a positive light
on the drug's likelihood of success before the FDA.
The complaint also points to an earnings call, during which the
company's CEO stated, among other things, his belief that the
results of an approval study demonstrated statistically significant
improvement in patient survival, warranting the grant of emergency
use approval.
After the FDA declined NRx's application in November 2021, a
company press release explained that the agency did so because the
drug application contained insufficient data regarding Zyesami's
potential benefits and risks. After the news broke, NRx's stock
price declined $2.27 per share or 25.45%.
The plaintiff contends that the defendants knew of these
deficiencies, and the corresponding fact that it was unlikely that
the FDA would approve the application as presented, yet misled
investors about the chance of success. The lawsuit seeks to certify
a class of shareholders who suffered losses as a result of the
alleged securities law anti-fraud provision violations.
The plaintiff and putative class are represented by Bielli &
Klauder LLC and Pomerantz LLP. [GN]
OAK STREET: Glancy Prongay Reminds of March 14 Deadline
-------------------------------------------------------
Glancy Prongay & Murray LLP ("GPM") reminds investors of the
upcoming March 14, 2022 deadline to file a lead plaintiff motion in
the class action filed on behalf of investors who purchased or
otherwise acquired Oak Street Health, Inc. ("Oak Street" or the
"Company") (NYSE: OSH) securities between August 6, 2020 and
November 8, 2021, inclusive (the "Class Period").
If you suffered a loss on your Oak Street investments or would like
to inquire about potentially pursuing claims to recover your loss
under the federal securities laws, you can submit your contact
information at www.glancylaw.com/cases/oak-street-health-inc/. You
can also contact Charles H. Linehan, of GPM at 310-201-9150,
Toll-Free at 888-773-9224, or via email at
shareholders@glancylaw.com to learn more about your rights.
On November 8, 2021, Oak Street disclosed that on November 1, 2021
the Company received a civil investigative demand ("CID") from the
United States Department of Justice ("DOJ"). According to the CID,
the DOJ was investigating whether the Company violated the False
Claims Act. The CID also requests documents and information related
to the Oak Street's relationships with "third-party marketing
agents" and Oak Street's "provision of free transportation to
federal health care beneficiaries."
On this news, the Company's share price fell $9.75, or more than
20%, to close at $37.14 per share on November 9, 2021, on unusually
heavy trading volume.
The complaint filed in this class action alleges that throughout
the Class Period, 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: (1) that Oak Street maintained relationships with
third-party marketing agents likely to provoke law enforcement
scrutiny; (2) that Oak Street was providing free transportation to
federal health care beneficiaries in a manner that would provoke
law enforcement scrutiny; (3) that these activities may be
violations of the False Claims Act; (4) that, as such, Oak Street
was at heightened risk of investigation by the DOJ and/or other
federal law enforcement agencies; (5) that, as a result, Oak Street
was subject to adverse impacts related to defense and settlement
costs and diversion of management resources; and (6) 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.
If you purchased or otherwise acquired Oak Street securities during
the Class Period, you may move the Court no later than March 14,
2022 to request appointment as lead plaintiff in this putative
class action lawsuit. 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 the pending class action lawsuit,
please contact Charles Linehan, Esquire, of GPM, 1925 Century Park
East, Suite 2100, Los Angeles, California 90067 at 310-201-9150,
Toll-Free at 888-773-9224, by email to shareholders@glancylaw.com,
or visit our website at www.glancylaw.com. If you inquire by email
please include your mailing address, telephone number and number of
shares purchased.
This press release may be considered Attorney Advertising in some
jurisdictions under the applicable law and ethical rules.
Contacts:
Glancy Prongay & Murray LLP, Los Angeles
Charles Linehan, 310-201-9150 or 888-773-9224
shareholders@glancylaw.com
www.glancylaw.com [GN]
ONIN STAFFING: Filing of Class Cert. Bid Extended to March 25
-------------------------------------------------------------
In the class action lawsuit captioned as BOBBY LEE MILES, JR., v.
ONIN STAFFING, LLC, Case No. 3:21-cv-00275 (M.D. Tenn.), the Hon.
Judge Alistair E, Newbern entered an order granting in part the
parties joint motion requesting extensions of certain case
management deadlines to accommodate a February 4, 2022 mediation,
as follows:
1. The deadline to complete fact March 7, 2022
discovery and to file any
discovery-related motions
is extended to:
2. The deadline to file any March 25, 2022
motion for class certification
is extended to:
3. The deadline to file any April 22, 2022
dispositive motions is
extended to:
Onin provides staffing services.
A copy of the Court's order dated Jan. 24, 2022 is available from
PacerMonitor.com at https://bit.ly/3r0ijJ3 at no extra charge.[CC]
ORRKLAHOMA WEST: Patterson Sues Over Unpaid Overtime Wages
----------------------------------------------------------
Micah Patterson and Jesse Petty, individually and on behalf of all
others similarly situated v. ORRKLAHOMA WEST, LLC d/b/a ORR NISSAN
WEST, Case No. CJ-2022-221 (D. Okla., Jan. 14, 2022), is brought to
recover wages and overtime wages and other damages under the Fair
Labor Standards Act.
The Defendant requited the Plaintiffs to work substantial time
without compensation. The Plaintiffs worked at least 6 hours a day
for at least 6 days a week, As a result, they often worked weeks
consisting of 40 hours or more. The Defendant paid the Plaintiffs
an hourly rate. However, the Defendant often required the
Plaintiffs to not clock in. The Defendant failed to properly pay
all the Plaintiffs the wages and overtime owed to them and seeks to
recover unpaid wages and overtime wages, liquidated damages,
attorney fee, and costs permitted by the FLSA, says the complaint.
The Plaintiffs were employed by the Defendant in the detail
department of the Defendant's dealership performing manual labor
job duties.
Orr Nissan West sells and services automobiles.[BN]
The Plaintiffs are represented by:
Kenyatta R. Bethea, Esq.
HOLLOWAY BETHEA & OTHERS, PLLC
Oklahoma City, OK 73116
Phone: (405) 246-0600
Facsimile: (405) 246-0601
ORVIS COMPANY: Faces Class Action Over Alleged Privacy Violation
----------------------------------------------------------------
Mike Donoghue, writing for Bennington Banner, reports a California
man has filed a civil lawsuit in federal court against The Orvis
Company Inc., claiming the internationally known Vermont-based
sporting goods business violated his privacy by including his name
when selling their customer lists to marketing companies and data
brokers.
Brian Farris is asking the U.S. District Court in Burlington to
allow him to turn his complaint into a class action lawsuit on
behalf of anybody else in California who had their names and
addresses provided to other third parties, court records show.
The lawsuit maintains Orvis was "unsatisfied with traditional sales
revenue alone" and moved on to selling and renting mailing lists
containing names, addresses, age, gender, income, ethnicity,
religion, children's age and information about purchases from the
company.
Attempts to reach Simon Perkins, a third-generation company
president for Orvis, for comment was unsuccessful.
Tucker Kimball, Orvis director of public relations, said the
company has not received a copy of the lawsuit since it was filed
and would withhold comment for the time being. He said the company
was aware a lawsuit was possible.
Orvis will have about three weeks to file a written response to the
10-page lawsuit once it is served on the company.
Orvis, founded in 1856 in Manchester, is a family-owned retail and
mail-order business focusing on fly fishing, hunting and sporting
goods. It is believed to be the oldest mail-order in the United
States. It is also well-known for its long-running conservation
programs.
Orvis says on its website it operates more than 80 retail stories
in the United States and United Kingdom, and maintains a network of
more than 400 dealers worldwide.
Farris, who does not include his hometown in California in his
legal filing, has retained Miami lawyer Frank S. Hedin to handle
the case. Hedin specializes in class action lawsuits on consumer
and data privacy issues, according to his website. Hedin is working
with Stowe lawyer Aaron T. Morris as local counsel.
Farris in his lawsuit said he believes California's right of
publicity statute prohibits what Orvis is currently doing with its
customer information. The law "prohibits using a person's name or
likeness on or in connection with a product, good, piece of
merchandise, or a service without the person's prior consent."
Orvis maintains a vast digital database comprised of its customers
information, according to the lawsuit.
"Orvis has sold and rented (and continues to sell and rent) these
lists on the open market to anyone willing to pay for them,
including on a regular basis to data miners, aggregators,
appenders, and cooperatives, aggressive marketing companies and
others," the lawsuit said.
Farris asks that he be allowed to represent others in the class
that "were injured and sustained damages by Orvis's uniform
wrongful conduct."
By allowing the case to proceed as a class action lawsuit it would
provide for a uniform resolution. "Individual litigation increases
the delay and expense to all parties and multiple the burden on the
judicial system presented by the complex legal and factual issues,"
the lawsuit said.
Farris is asking for a jury trial to resolve the dispute. [GN]
PARKHOUSE TIRE: Order on Class Cert Bids Entered in Redick Suit
---------------------------------------------------------------
In the class action lawsuit captioned as CRYSTAL REDICK v.
PARKHOUSE TIRE SERVICE, INC., et al., Case No.
2:21-cv-07693-FMO-AGR (C.D. Cal.), the Hon. Judge Fernando M.
Olguin entered an order regarding motions for class certification
as follows:
1. Joint Brief
The parties shall work cooperatively to create a single,
fully integrated joint brief covering each party's
position, in which each issue (or sub-issue) raised by a
party is immediately followed by the opposing
party's/parties' response.
2. Citation to Evidence:
All citation to evidence in the joint brief shall be
directly to the exhibit and page number(s) of the
evidentiary appendix, or page and line number(s) of a
deposition.
3. Unnecessary Sections:
The parties need not include a "procedural history"
section, since the court will be familiar with the
procedural history. The court is also familiar with the
general standard for class certification, so that need not
be argued.
4. Page Limitation
Each separately-represented party shall be limited to 18
twenty-five (25) pages, exclusive of tables of contents
and authorities. Repetition shall be avoided and, as
always, brevity is preferred. Leave for additional space
will be given only in extraordinary cases.
5. Evidentiary Appendix
The joint brief shall be accompanied by one separate,
tabbed appendix of declarations and written evidence
(including documents, photographs, deposition excerpts,
etc.).
6. Schedule for Preparation and Filing of Joint Brief
A. Meet and Confer
In order for a motion for class certification to 14
filed in a timely manner, the meet and confer must take
place no later than 35 days before the deadline for
class certification motions set forth in the Court's
Case Management and Scheduling Order.
B. No later than seven days after the meet and confer, the
moving party shall personally deliver or e-mail to the
opposing party an electronic copy of the moving party's
portion of the joint brief, together with the moving
party's portion of the evidentiary appendix.
C. No later than 14 days after receiving the moving
party's papers, the opposing party shall personally
deliver or e-mail to the moving party an electronic
copy of the integrated motion, which shall include the
opposing party's portion of the joint brief, together
with the opposing party's portion of the evidentiary
appendix.
D. No later than two days after receiving the integrated
version of the motion and related papers, the moving
party shall finalize it for filing.
7. Failure to Comply with this Order
If it appears from the joint brief that the parties have
not discharged their meet and confer obligations in good
faith, that the parties have not worked to fully integrate
the document, or that the parties have otherwise failed to
fully comply with this Order, the motion shall be
stricken, and the parties shall be required to repeat the
process.
Parkhouse offers automotive service and collision repair.
A copy of the Court's order dated Jan. 24, 2022 is available from
PacerMonitor.com at https://bit.ly/33TMzwt at no extra charge.[CC]
PATZERIA FAMILY: Bocel Seeks FLSA Conditional Class Certification
-----------------------------------------------------------------
In the class action lawsuit captioned as RICARDO BOCEL,
individually and on behalf of all others similarly situated, v.
PATZERIA FAMILY & FRIENDS INC., PATZERIA PERFECT PIZZA INC., JOSEPH
AZZOLINO, and SHKELZEN ULAJ, Case No. e 1:21-cv-07384-LGS
(S.D.N.Y.), the Plaintiff asks the Court to enter an order granting
conditional class certification, court-authorized notice pursuant
to the Fair Labor Standards Act, 29 U.S.C. section 216(b), and
expedited discovery, as well as such other and further relief as
the Court deems just and proper.
Patzeria is in the Pizza Restaurants business.
A copy of the Plaintiff's motion to certify class dated Jan. 25,
2022 is available from PacerMonitor.com at https://bit.ly/3r1b0Rx
at no extra charge.[CC]
The Plaintiff is represented by:
Nicole Grunfeld, Esq.
KATZ MELINGER PLLC
370 Lexington Avenue, Suite 1512
New York, NY 10017
Telephone: (212) 460-0047
Facsimile: (212) 428-6811
E-mail: NDGrunfeld@katzmelinger.com
PEOPLEASE LLC: Appeals Arbitration Bid Ruling in Espinoza FCRA Suit
-------------------------------------------------------------------
PEOPLEASE, LLC, et al., filed an appeal from a court ruling entered
in the lawsuit styled DEMIS ESPINOZA, on behalf of himself and on
behalf of all others similarly situated, Plaintiff v. PEOPLEASE,
LLC, et al., Defendants, Case No. 1:21-cv-22684-BB, in the U.S.
District Court for the Southern District of Florida.
On June 1, 2021, the Plaintiff initiated this putative class action
against Defendants MLS and Peoplease, arising from their purported
violations of the Fair Credit Reporting Act of 1970. According to
the Amended Complaint, the Plaintiff was previously employed by MLS
through Peoplease between Sept. 18, 2019, and Nov. 13, 2019. MLS
and Peoplease terminated the Plaintiff's employment on Nov. 13,
2019. Thereafter, in October 2020, the Plaintiff again applied for
employment with MLS.
On Oct. 19, 2020, as a condition of hire, the Plaintiff authorized
MLS to obtain his consumer report. On Oct. 20, 2020, MLS and
Peoplease ordered the Plaintiff's consumer report from Crimcheck, a
consumer reporting agency. On Oct. 23, 2020, Crimcheck provided MLS
and Peoplease with the Plaintiff's consumer report, which scored
the Plaintiff as "questionable" based upon his then-pending
criminal charges. Crimcheck communicated to MLS and/or Peoplease
that Plaintiff was ineligible to hire, causing MLS to reject the
Plaintiff's employment application and MLS and/or Peoplease to
confirm his ineligibility in their computer system.
The Plaintiff was rejected for employment on Oct. 23, 2020. He then
contacted MLS's corporate office to inquire into the status of his
application and was informed that his application for employment
was rejected due to his background check. He did not receive notice
or a copy of his background check from MLS prior to his rejection.
Nor did he authorize Peoplease to procure his consumer report.
Based on these allegations, the Plaintiff asserts three claims for
relief under the FCRA: Failure to Make Proper Disclosure in
Violation 15 U.S.C. Section 1681b(b)(2)(A)(i), against Peoplease
(Count I); Failure to Obtain Authorization in Violation of 15
U.S.C. Section 1681b(b)(2)(A)(ii), against Peoplease (Count II);
and Failure to Provide Adverse Action Notice in Violation of 15
U.S.C. Section 1681b(b)(3)(A), against MLS (Count III).
As reported in the Class Action Reporter on Jan. 3, 2022, Judge
Beth Bloom issued an omnibus order denying Defendants' motions to
compel arbitration.
The Defendants seek a review of this ruling.
The appellate case is captioned as PEOPLEASE, LLC, et al. v. DEMIS
ESPINOZA, Case No. 22-10110, in the United States Court of Appeals
for the Eleventh Circuit, filed on Jan. 13, 2022.
The briefing schedule in the Appellate Case states that:
-- The appellant's brief is due on or before February 23, 2022;
-- The appendix is due no later than 7 days from the filing of
the appellant's brief;
-- Appellant's Certificate of Interested Persons was due on
January 28, 2022 as to Appellant Peoplease, LLC;
-- Appellee's Certificate of Interested Persons is due on or
before February 11, 2022 as to Appellee Demis Espinoza.[BN]
Defendants-Appellants PEOPLEASE, LLC and MANAGED LABOR SOLUTIONS,
LLC are represented by:
JonVieve Hill, Esq.
Matthew Rudolph Simpson, Esq.
FISHER & PHILLIPS, LLP
1075 Peachtree St NE Ste 3500
Atlanta, GA 30309
Telephone: (404) 231-1400
E-mail: jhill@fisherphillips.com
msimpson@fisherphillips.com
- and -
Garrett Kamen, Esq.
FISHER & PHILLIPS, LLP
450 E Las Olas Blvd Ste 800
Fort Lauderdale, FL 33301-4202
Telephone: (954) 525-4800
E-mail: gkamen@fisherphillips.com
- and -
Mary Ruth Houston, Esq.
SHUTTS & BOWEN, LLP
300 S Orange Ave Ste 1600
Orlando, FL 32801
Telephone: (407) 423-3200
E-mail: mhouston@shutts-law.com
- and -
Adam E. Primm, Esq.
BENESCH FRIEDLANDER COPLAN & ARONOFF, LLP
200 Public Sq Ste 2300
Cleveland, OH 44114-2309
Telephone: (216) 363-4500
E-mail: aprimm@beneschlaw.com
Plaintiff-Appellee DEMIS ESPINOZA, on behalf of himself and on
behalf of all others similarly situated, is represented by:
Marc R. Edelman, Esq.
Morgan & Morgan, PA
201 N Franklin St Fl 7
Tampa, FL 33602
Telephone: (813) 223-5505
E-mail: medelman@forthepeople.com
PERSOLVE RECOVERIES: Sinkfield Class Suit Junked w/o Prejudice
--------------------------------------------------------------
In the class action lawsuit captioned as ALLECIA SINKFIELD, on
behalf of herself and others similarly situated, v. PERSOLVE
RECOVERIES, LLC, Case No. 9:21-cv-80338-RKA (S.D. Fla.), the Hon.
Judge Roy K. Altman entered an order administratively closing the
above-styled action without prejudice to the parties to file a
stipulation of dismissal and a motion for preliminary approval of
the class action settlement by March 11, 2022.
If the parties fail to complete the expected settlement, any party
may ask the Court to reopen the case. All pending deadlines and
hearings are terminated, and any pending motions are denied as
moot, says Judge Altman.
Persolve is a full service legal recovery and collection firm.
A copy of the Court's order dated Jan. 24, 2022 is available from
PacerMonitor.com at https://bit.ly/3tXAEs6 at no extra charge.[CC]
PHILIPS NORTH: Brooks Sues Over Unpaid OT for Call Center Workers
-----------------------------------------------------------------
JASMINE BROOKS, individually and on behalf of all others similarly
situated, Plaintiff v. PHILIPS NORTH AMERICA LLC, PHILIPS RS NORTH
AMERICA LLC and VITOR ROCHA, Defendants, Case No. 1:22-cv-00264-AT
(N.D. Ga., January 24, 2022) is a class action against the
Defendants for their failure to compensate the Plaintiff and
similarly situated customer service representatives overtime pay
for all hours worked in excess of 40 hours in a workweek in
violation of the Fair Labor Standards Act.
The Plaintiff worked as a customer service representative in the
Defendants' call center located in Alpharetta, Georgia.
Philips North America LLC is a health technology company with its
principal place of business located at 222 Jacobs Street, Floor 3,
Cambridge, Massachusetts.
Philips RS North America LLC is a company that manufactures and
markets medical devices with its principal place of business
located at 6501 Living Place, Pittsburgh, Pennsylvania. [BN]
The Plaintiff is represented by:
Arnold J. Lizana, Esq.
LAW OFFICES OF ARNOLD J. LIZANA III
1175 Peachtree Street NE, 10th Floor
Atlanta, GA 30361
Telephone: (470) 207-1559
Facsimile: (470) 231.0672
E-mail: alizana@attorneylizana.com
- and –
Taft L. Foley II, Esq.
THE FOLEY LAW FIRM
3003 South Loop West, Suite 108
Houston, TX 77002
Telephone: (832) 778-8182
Facsimile: (832) 778-8353
E-mail: taft.foley@thefoleylawfirm.com
POPLAR GROVE: Duke Wage-and-Hour Suit Removed to E.D. Arkansas
--------------------------------------------------------------
The case styled ANTONIO DUKE, individually and on behalf of all
others similarly situated v. POPLAR GROVE OPERATIONS, LLC, d/b/a
THE GREEN HOUSE COTTAGES OF POPLAR GROVE, Case No. 60CV-21-6413,
was removed from the Pulaski County Circuit Court, Arkansas, to the
U.S. District Court for the Eastern District of Arkansas on January
21, 2022.
The Clerk of Court for the Eastern District of Arkansas assigned
Case No. 4:22-cv-00056-LPR to the proceeding.
The case arises from the Defendant's alleged failure to pay
overtime and retaliation in violation of the Fair Labor Standards
Act and the Arkansas Minimum Wage Act.
Poplar Grove Operations, LLC, doing business as The Green House
Cottages of Poplar Grove, is an operator of nursing care facilities
based in Little Rock, Arkansas. [BN]
The Defendant is represented by:
Kerri E. Kobbeman, Esq.
CONNER & WINTERS, LLP
4375 N. Vantage Drive, Suite 405
Fayetteville, AR 72703
Telephone: (479) 582-5711
Facsimile: (479) 587-1426
E-mail: kkobbeman@cwlaw.com
PRATT & WHITNEY: Keller Lenkner Files Amended No-Poach Class Action
-------------------------------------------------------------------
National plaintiffs' law firm Keller Lenkner LLC on Jan. 18 filed
an amended class action complaint challenging an illegal conspiracy
among two of Raytheon Technologies' operating units -- Pratt &
Whitney and Collins Aerospace -- and several outsource engineering
suppliers that suppressed the job mobility and compensation of
plaintiff Matthew Cydylo and other putative class members. The
filing is an expansion of the original complaint against Pratt &
Whitney and the suppliers, after Keller Lenkner's further
investigation revealed information to support allegations that
Collins Aerospace was also involved in the illegal practices.
The complaint alleges that the defendants entered into an illegal
no-poach agreement that restricted the hiring and recruiting of
engineers and other skilled laborers working on aerospace
projects.
In December 2021, the Department of Justice (DOJ) indicted six
executives from the various defendants -- except Collins Aerospace
-- citing Pratt & Whitney's role in the illegal no-poach agreement.
Through Keller Lenkner's independent investigation, attorneys
learned that the wrongdoing alleged in the DOJ indictment and
Keller Lenkner's initial complaint is even broader than previously
disclosed, leading to the allegations against Collins Aerospace.
From as early as 2011 until at least 2019, the defendants allegedly
maintained an expansive no-poach agreement that affected engineers
employed by, or working as independent contractors for, the
defendants; it reached those who worked on Pratt & Whitney and
Collins Aerospace projects and statements of work throughout the
United States and its territories. The no-poach agreement allegedly
was made and enforced privately and confidentially among executives
at the highest levels of the defendant organizations, who
successfully concealed it, and its implications, from Mr. Cydylo
and putative class members. Without the DOJ's criminal
investigation and subsequent indictments -- and Keller Lenkner's
independent investigation -- the existence of the no-poach
agreement would likely have remained permanently hidden.
"The defendants entered into this conspiracy with complete
disregard for the impact it would have on their employees, their
careers, and their livelihoods. The only concern was for their
bottom line and avoiding disruption to their workforce," said Jason
Zweig, Partner at Keller Lenkner. "After the Department of
Justice's appalling revelations, we filed suit with the intention
of recovering losses for the many engineers affected by this
agreement, but we knew that we couldn't stop there. After a
rigorous investigation, we look forward to ensuring Collins
Aerospace is also held accountable for its role in this
misconduct."
Led by Zweig and Keller Lenkner Partner Zina Bash, the suit seeks
damages and injunctive relief under the antitrust laws of the
United States. As a direct result of the defendants' illegal
no-poach agreement, members of the class have suffered injury and
have been deprived of the benefits of free and fair competition for
their labor on the merits.
In addition to Raytheon Technologies Corporation's Pratt & Whitney
Division and Collins Aerospace Division, defendants in the
litigation are QuEST Global Services-NA, Inc., Belcan Engineering
Group, LLC, Cyient, Inc., Agilis Engineering, Inc., Parametric
Solutions, Inc., and Mahesh Patel, Robert Harvey, Harpreet Wasan,
Steve Houghtaling, Thomas Edwards, Gary Prus, and Frank O'Neill,
and Does 1-10.
Employees who believe this no-poach agreement has affected their
job mobility or compensation, or who have otherwise been harmed,
and who are interested in joining this class action are encouraged
to contact Keller Lenkner at aerospacenopoach@kellerlenkner.com.
The Keller Lenkner legal team includes Partners Jason Zweig and
Zina Bash, along with co-counsel Daniel Krisch of Halloran Sage
LLP.
The action is Matthew Cydylo v. Agilis Engineering, et al., No.
21-cv-01730, and is filed in the United States District Court of
Connecticut.
ABOUT KELLER LENKNER: Keller Lenkner LLC --
http://www.kellerlenkner.com-- represents plaintiffs in complex
litigation matters in federal and state courts throughout the
nation. The firm acts for clients in many types of cases, including
class and mass actions, arbitrations, and multi-district litigation
matters. Its team includes four former law clerks at the Supreme
Court of the United States and former partners and associates from
the country's leading law firms. Since its founding in 2018, the
firm has secured results for more than 150,000 clients. [GN]
PRECISION ALMOND: Velazquez Files Suit in Cal. Super. Ct.
---------------------------------------------------------
A class action lawsuit has been filed against Precision Almond
Harvesting LLC. The case is styled as Brandon Velazquez, on behalf
of himself and on behalf of all similarly situated individuals v.
Precision Almond Harvesting LLC, Case No. BCV-22-100125 (Cal.
Super. Ct., Kern Cty., Jan. 14, 2022).
The case type is stated as "Other Employment – Civil Unlimited."
Precision Almond Harvesting LLC is a California Domestic
Limited-Liability Company in Wasco, California.[BN]
The Plaintiff is represented by:
Alex P. Katofsky, Esq.
GAINES & GAINES, APLC
27200 Agoura Rd Ste 101
Agoura Hills, CA 91301-5126
Phone: 818-703-8985
Fax: 818-703-8984
Email: alex@gaineslawfirm.com
PROFESSIONAL DIRECTIONAL: Snoddy Sues Over Unpaid Overtime Wages
----------------------------------------------------------------
JIM SNODDY, individually and on behalf of all others similarly
situated v. PROFESSIONAL DIRECTIONAL ENTERPRISES, INC., Case No.
1:22-cv-00096-UNA (D. Del., Jan. 25, 2022) seeks to recover
Plaintiff's unpaid overtime wages and other damages from the
Defendant under the Fair Labor Standards Act and the New Mexico
Minimum Wage Act.
Mr. Snoddy worked for the Defendant as directional drilling
supervisor from approximately October 2017 through February 2020.
He asserts that he did not receive overtime for hours worked in
excess of 40 hours in a single workweek.
Professional Directional Enterprises, Inc. provides horizontal and
directional drilling services to oil and gas operators throughout
the United States.[BN]
The Plaintiff is represented by:
Sue L. Robinson, Esq.
Brian E. Farnan, Esq.
Michael J. Farnan, Esq.
FARNAN LLP
919 North Market St. 12th Floor
Wilmington, DE 19801
Telephone: (302) 777-0300
Facsimile: (302) 777-0301
E-mail: srobinson@farnanlaw.com
bfarnan@farnanlaw.com
mfarnan@farnanlaw.com
- and -
Michael A. Josephson, Esq.
Andrew W. Dunlap, Esq.
Carl A. Fitz, Esq.
JOSEPHSON DUNLAP LLP
11 Greenway Plaza, Suite 3050
Houston, TX 77046
Telephone: (713) 352-1100
Facsimile: (713) 352-3300
E-mail: mjosephson@mybackwages.com
adunlap@mybackwages.com
cfitz@mybackwages.com
- and -
Richard J. (Rex) Burch, Esq.
BRUCKNER BURCH, PLLC
8 Greenway Plaza, Suite 1500
Houston, TX 77046
Telephone: (713) 877-8788
Facsimile: (713) 877-8065
E-mail: rburch@brucknerburch.com
PROGRESSIVE DIRECT: Seeks Adjustment of Class Cert. Deadlines
-------------------------------------------------------------
In the class action lawsuit captioned as MOHAMMAD M. ASSAF v.
PROGRESSIVE DIRECT INSURANCE COMPANY, Case No. 3:19-cv-06209-BHS
(W.D. Wash.), the Defendant asks the Court to enter an order
adjusting certain deadlines related to Plaintiff's Motion for Class
Certification and Expert Disclosures and response to Motion to
Seal.
-- Progressive's Opposition 60 days after the Court
to Plaintiff's Motion enters its ruling on
for Class Certification Progressive's Motion to
and Expert Disclosures and Compel Depositions
response to Motion to Seal:
-- Plaintiff's Reply ISO Motion 60 days after Progressive
for Class Certification: files its Opposition
Brief
Progressive Direct operates as an insurance company. The Company
underwrites auto, fire, marine, and casualty insurance.
A copy of the Defendant's motion dated Jan. 24, 2022 is available
from PacerMonitor.com at https://bit.ly/3KLhICO at no extra
charge.[CC]
The Defendant is represented by:
Robert Leslie Christie, Esq.
CHRISTIE LAW GROUP PLLC
2100 Westlake Avenue N., Suite 206
Seattle, WA 98109
Telephone: (206) 957-9669
Facsimile: (206) 352-7875
E-mail: bob@christielawgroup.com
- and -
Kymberly Kochis, Esq.
EVERSHEDS SUTHERLAND (US) LLP
1114 Avenue of the Americas
The Grace Building, 40 th Floor
New York, NY 10036
Telephone: (212) 389-5000
Facsimile: (212) 389-5099
E-mail: kymkochis@eversheds-sutherland.com
- and -
Michael R. Nelson, Esq.
Stephanie E. Niehaus, Esq.
NELSON NIEHAUS LLC
200 Park Avenue, Suite 1700
New York, NY 10166
Telephone: (212) 457-1668
Facsimile: (646) 766-9945
E-mail: nelson@nelson.legal
stephanie.niehaus@nelson.legal
PROGRESSIVE SPECIALTY: Scheduling Order Entered in Drummond Suit
----------------------------------------------------------------
In the class action lawsuit captioned as LEON DRUMMOND and LEE
WILLIAMS, on behalf of themselves and all others similarly
situated, v. PROGRESSIVE SPECIALTY INSURANCE COMPANY and
PROGRESSIVE ADVANCED COMPANY, Case No. 5:21-cv-04479-EGS (E.D.
Pa.), the Hon. Judge Edward G. Smith entered an scheduling order,
as follows:
1. The parties shall complete July 1, 2022
all fact discovery by:
2. Counsel for the plaintiff July 30, 2022
shall serve upon counsel
for every other party the
information referred to in
Federal Rule of Civil
Procedure 26(a)(2)(B) by
expert report or answer
to expert interrogatory
no later than:
3. Counsel for the defendants Sept. 23, 2022
shall serve upon counsel
for every other party
the information referred
to in Federal Rule of
Civil Procedure 26(a)(2)(B)
by expert report or answer
to expert interrogatory
no later than:
4. Counsel shall serve any Oct. 21, 2022
rebuttal reports on
counsel for every other
party and shall conclude
expert depositions,
if any, no later than:
5. The plaintiffs shall file Aug. 26, 2022
the motion for class
certification by:
6. The defendants shall file Sep. 30, 2022
its response to the motion
for class certification by:
7. The plaintiff shall file Oct. 28, 2022
any reply to the defendants'
response by:
The case is referred to United States Magistrate Judge Elizabeth T.
Hey for a settlement conference. The settlement conference will be
held on Wednesday, July 6, 2022, at 9:30 a.m. before Judge Hey, the
Court says.
Progressive Specialty operates as an insurance firm. The Company
offers property, casualty, life, and health insurance services.
A copy of the Court's order dated Jan. 24, 2022 is available from
PacerMonitor.com at https://bit.ly/3FZKjRy at no extra charge.[CC]
PROTEXTING LLC: Jackson Files TCPA Suit in W.D. Missouri
--------------------------------------------------------
A class action lawsuit has been filed against Protexting, LLC, et
al. The case is styled as Skyler Jackson, individually and on
behalf of all others similarly situated v. Protexting, LLC,
Professional Ghostwriter, John Doe Corporations 1 through 10, and
other John Doe Entities 1 through 10, all whose true names are
unknown, Case No. 4:22-cv-00055-HFS (W.D. Mo., Jan. 26, 2022).
The lawsuit is brought over alleged violation of the Telephone
Consumer Protection Act for Restrictions of Use of Telephone
Equipment.
Protexting -- https://www.protexting.com/ -- offer a suite of
highly interactive mobile messaging tools, giving you the ability
to communicate and market to your clients via SMS and MMS.[BN]
The Plaintiff is represented by:
Joel S Halvorsen, Esq.
Samantha Joanne Orlowski, Esq.
HALVORSEN KLOTE
680 Craig Road, Suite 104
St. Louis, MO 63141
Phone: (314) 451-1314
Email: joel@hklawstl.com
sam@hklawstl.com
QUANTUM HEALTH: Tracy Sues Over Care Coordinators' Unpaid OT
------------------------------------------------------------
AMIEE TRACY, on behalf of herself and others similarly situated,
Plaintiff v. QUANTUM HEALTH, INC., Defendant, Case No.
2:22-cv-00294-MHW-KAJ (S.D. Ohio, Jan. 25, 2022) is brought by the
Plaintiff arising from the Defendant's failure to pay employees
overtime wages and seeking all available relief under the Fair
Labor Standards Act, the Ohio Minimum Fair Wage Standards Act, the
Ohio Prompt Pay Act, and the Ohio Constitution.
Ms. Tracy worked as an hourly, non-exempt "employee" of Defendant
as defined in the FLSA and the Ohio Acts primarily in the position
of care coordinator from approximately October 2020 to June 2021.
She asserts the failure of the Defendant to compensate her and
other similarly situated employees for all overtime hours worked as
a result of: (1) the pre-shift computer bootup process; (2)
shortened meal breaks; and (3) post-shift computer shutdown
process.
Quantum Health is a consumer healthcare navigation company that
provides a single point of contact and customer service.[BN]
The Plaintiff is represented by:
Matthew J.P. Coffman, Esq.
Adam C. Gedling, Esq.
Kelsie N. Hendren, Esq.
COFFMAN LEGAL, LLC
1550 Old Henderson Rd Suite #126
Columbus, OH 43220
Telephone: (614) 949-1181
Facsimile: (614) 386-9964
E-mail: mcoffman@mcoffmanlegal.com
agedling@mcoffmanlegal.com
khendren@mcoffmanlegal.com
ROB GRAHAM : Deadline to file Class Cert. Bid Extended to March 9
-----------------------------------------------------------------
In the class action lawsuit captioned as RICARD v. ROB GRAHAM
ENTERPRISES, LLC, Case No. 2:21-cv-14349 (S.D. Fla.), the Hon.
Judge K. Michael Moore entered an order granting in part and
denying in part an extension of the deadline to file a Motion for
Class Certification.
-- The deadline to file a motion for class certification is
now March 9, 2022.
-- The Defendant shall have 14 days to file a response and
the Plaintiff may file a reply within seven days of
Defendant's response.
-- All other deadlines remain the same.
The nature of suit states other statutes -- other statutory
actions.
This case was set for trial on September 15, 2021, and on September
24, 2021, the Court set a briefing schedule for class certification
under which Plaintiff was required to move for class certification
on or before February 7, 2022.
Then, on December 10, 2021, Defendant sought the bifurcation of
discovery for the first time, despite the fact that this case was
filed in state court on June 10, 2021. Class discovery has been
open for several months and the deadline for Plaintiff to brief
class certification is roughly one month away.
Thus, it would be prejudicial to Plaintiff Ricard to revise the
Court's scheduling orders on which she has relied for months.
Further, the Court is not convinced that the bifurcation of class
discovery would function to conserve resources given that this case
has already proceeded through months of class discovery, the Court
says.[CC]
ROCKY CAR: Faces Xo Suit Over Car Washers' Unpaid Wages
-------------------------------------------------------
JUAN XO, individually and on behalf of all others similarly
situated, Plaintiffs v. ROCKY CAR WASH CORP., and FERNANDO
MAGALHAES as an individual, Defendants, Case No. 1:22-cv-00444
(E.D.N.Y., Jan. 25, 2022) arises from the Defendants' alleged
violations of the Fair Labor Standards Act and the New York Labor
Law by failing to pay proper minimum, overtime and spread of hours
wages, and failing to provide wage notices and accurate wage
statements.
The Plaintiff was employed by the Defendants from April 2019 until
February 2020 as a car washer, responsible for cleaning customers'
vehicles while performing related miscellaneous duties for the
Defendants.
Rocky Car Wash Corp. is a New York-based which provides car wash
services.[BN]
The Plaintiff is represented by:
Roman Avshalumov, Esq.
HELEN F. DALTON & ASSOCIATES, P.C.
80-02 Kew Gardens Road, Suite 601
Kew Gardens, NY 11415
Telephone: (718) 263-9591
ROYAL CREDIT: Court Dismisses Schindler Class Suit With Prejudice
-----------------------------------------------------------------
Judge James D. Peterson of the U.S. District Court for the Western
District of Wisconsin dismissed the case, JUNE SCHINDLER, on behalf
of herself and all others similarly situated, Plaintiff, v. ROYAL
CREDIT UNION, Defendant, Case No. 20-cv-07-jdp (W.D. Wis.), with
prejudice.
Judgment is entered certifying a class, pursuant to Rule 23(b)(3)
of the Federal Rules of Civil Procedure, as follows: "The 9,911
persons (in addition to June Schindler) included in one or more
soft-pull portfolio reviews conducted by Royal Credit Union (RCU)
from December 1, 2017, to the present, who at the time of the pull
were not members of RCU, and who, according to RCU's account
records, were also not subject to any current collection claims by
RCU for any reason (i.e., because that person had no charged off
accounts, or had one or more charged off accounts that were subject
to a bankruptcy filing and/or beyond the applicable statute of
limitations)."
The judgment is entered certifying June Schindler as the class
representative and Thomas J. Lyons, Jr., as the class counsel;
finding that the lawsuit satisfies the applicable prerequisites for
class action treatment under Fed. R. Civ. P. 23; and approving a
class action settlement as set forth in a Settlement Agreement
dated Dec. 4, 2020, and Addendum dated March 11, 2021.
The class is awarded $335,000, less class administration costs, to
be distributed among the class members as set forth in the
Agreement. Any undistributed amounts are awarded to the Consumer
Law Clinic of the University of Wisconsin Law School in Madison,
Wisconsin. The class counsel is awarded $150,000 in attorney fees
and costs. June Schindler is awarded $5,000 for her service to the
class.
A full-text copy of the Court's Jan. 19, 2022 Judgment is available
at https://tinyurl.com/2p8jwk9v from Leagle.com.
RUSH UNIVERSITY: Liable to 403(B) Plan Losses, Barcenas Suit Says
-----------------------------------------------------------------
JOHN BARCENAS, MARY BROWN, PATRICK RUSSO, AND TENEKA WARE,
individually and as representatives of a class of similarly
situated persons, on behalf of the RUSH UNIVERSITY MEDICAL CENTER
403(B) RETIREMENT SAVINGS PLAN, Plaintiffs v. RUSH UNIVERSITY
MEDICAL CENTER, THE BOARD OF TRUSTEES OF RUSH UNIVERSITY MEDICAL
CENTER, THE RUSH UNIVERSITY MEDICAL CENTER INVESTMENT COMMITTEE,
THE RUSH UNIVERSITY MEDICAL CENTER ADMINISTRATIVE COMMITTEE; and
DOES No. 1-30, whose names are currently unknown, Defendants, Case
No. 1:22-cv-00366 (N.D. Ill., January 21, 2022) is a class action
against the Defendants for breach of their fiduciary duties under
the Employee Retirement Income Security Act.
According to the complaint, the Defendants have breached their
fiduciary duties to the Rush University Medical Center 403(B)
Retirement Savings Plan by: (1) failing to fully disclose the
expenses and risk of the Plan's investment options to participants;
(2) allowing unreasonable expenses to be charged to participants;
and (3) selecting, retaining, and/or otherwise ratifying high-cost
and poorly-performing investments, instead of offering more prudent
alternative investments when such prudent investments were readily
available at the time the Defendants selected and retained the
funds at issue and throughout the Class Period. As a result of the
Defendants' alleged fiduciary breaches, the Plan has suffered
millions of dollars in losses.
Rush University Medical Center is an academic medical center
headquartered in Chicago, Illinois. [BN]
The Plaintiffs are represented by:
P. Andrew Fleming, Esq.
Andrew P. Shelby, Esq.
NOVACK AND MACEY LLP
100 North Riverside Plaza
Chicago, IL 60606
Telephone: (312) 516-5610
Facsimile: (312) 419-6928
E-mail: andrewf@novackmacey.com
ashelby@novackmacey.com
- and –
James E. Miller, Esq.
Laurie Rubinow, Esq.
MILLER SHAH LLP
65 Main Street
Chester, CT 06412
Telephone: (866) 540-5505
Facsimile: (866) 300-7367
E-mail: jemiller@millershah.com
lrubinow@millershah.com
- and –
James C. Shah, Esq.
Alec J. Berin, Esq.
MILLER SHAH LLP
1845 Walnut Street, Suite 806
Philadelphia, PA 19103
Telephone: (866) 540-5505
Facsimile: (866) 300-7367
E-mail: jcshah@millershah.com
ajberin@millershah.com
- and –
Kolin C. Tang, Esq.
MILLER SHAH LLP
19712 MacArthur Blvd.
Irvine, CA 92612
Telephone: (866) 540-5505
Facsimile: (866) 300-7367
E-mail: kctang@millershah.com
- and –
Mark K. Gyandoh, Esq.
Gabrielle Kelerchian, Esq.
CAPOZZI ADLER, P.C.
312 Old Lancaster Road
Merion Station, PA 19066
Telephone: (610) 890-0200
Facsimile: (717) 233-4103
E-mail: markg@capozziadler.com
gabriellek@capozziadler.com
RUTHERFORD COUNTY, TN: Lawmakers to Drop Effort to Oust Judge
-------------------------------------------------------------
Blake Farmer, writing for WPLN News, reports that Tennessee
lawmakers will drop their effort to oust a Rutherford County
juvenile judge accused of illegally jailing children for years.
Donna Scott Davenport announced her retirement -- one day after two
Democrats introduced a resolution that could have resulted in her
removal. Davenport has been the subject of an investigation by WPLN
News and ProPublica that has found Rutherford County
disproportionately locks up Black children, and the racial
disparity is getting worse.
Davenport says she will not seek re-election, which means she will
be on the bench until the fall and receive her pension afterward.
The amount of that pension depends on "several factors," according
to a human resources official from Rutherford County.
Nashville state Sen. Heidi Campbell was one of the sponsors of the
ouster resolution. She says she and her co-sponsor, Knoxville Rep.
Gloria Johnson, will no longer pursue it.
"It would have been great if she would have just resigned, because
she's caused a lot of pain in our community," Campbell tells WPLN
News. "Because she [will retire], it makes it difficult from a
legislative standpoint to defend an extreme measure to remove
her."
Republicans had not yet signaled their views on the proposal to
remove a sitting judge, which has only occurred a handful of times
in recent history. But state Sen. Shane Reeves, R-Murfreesboro,
says her departure is "what's best for the children" of his
county.
"When you're putting an 8-year-old in handcuffs, I don't think
anyone would agree that's the right thing to do, regardless of what
role Judge Davenport played in it. That's just wrong," Reeves says.
"It's just in the best interest of everyone to move forward."
Rutherford County settled a class action lawsuit last month over
its high rate of jailing kids who would have been released in most
other counties. Rutherford will pay $6 million to hundreds of
families.
Davenport has been Rutherford County's only juvenile judge since
the court was established in 2000.
She has repeatedly declined interview requests with WPLN News, but
she issued a statement on Jan. 18 saying, "I will always look back
at my time as judge as one of the greatest honors of my life, and I
am so proud of what this Court has accomplished in the last two
decades and how it has positively affected the lives of young
people and families in Rutherford County."
WPLN political reporter Blaise Gainey contributed to this report.
[GN]
SAFESPEED LLC: Oral Argument on Class Cert. Bid Set for Feb. 17
---------------------------------------------------------------
In the class action lawsuit captioned as Marso v. SafeSpeed, LLC,
et al., Case No. 2:19-cv-02671 (D. Kan.), the Hon. Judge Kathryn H.
Vratil entered an order that the Plaintiff's motion for class
Certification filed January 14, 2022, is set for oral argument on
February 17, 2022 at 1:00 PM.
At that time, the plaintiff should be prepared to dispel the
Court's grave doubt that certification would be proper under Rule
23, Fed. R. Civ. P., says Judge Vratil.
The suit alleges violation of the American with Disabilities Act.
SafeSpeed provides red light enforcement systems that are used with
the goal of providing safer roadways for our communities.[CC]
SAGINAW, MI: Court Certifies Class and Subclass in Taylor Suit
--------------------------------------------------------------
In the case, ALISON PATRICIA TAYLOR, Plaintiff v. CITY OF SAGINAW
and TABITHA HOSKINS, Defendants, Case No. 1:17-cv-11067 (E.D.
Mich.), Judge Thomas L. Ludington of the U.S. District Court for
the Eastern District of Michigan, Northern Division, entered an
Opinion and Order:
a. granting the Plaintiff's Renewed Motion for Class
Certification;
b. denying as moot the Plaintiff's Conditional Motion for
Leave to File Second Amended Complaint; and
c. granting in part and denying in part the Defendants' Motion
for Leave to File Second Motion for Summary Judgment.
I. Background
The case is a putative class action challenging an age-old practice
in parking enforcement: tire-chalking. On behalf of herself and a
putative class of similarly situated motorists, Plaintiff Taylor
alleges that the City of Saginaw violated the Fourth Amendment by
chalking the tires of vehicles to record how long they had been
parked. In addition to naming the City as a Defendant, the
Plaintiff also names the City's "most prolific parking-ticket
issuer," Tabitha Hoskins, who allegedly ticketed Plaintiff on 14
separate occasions.
Since being filed in April 2017, the case has been dismissed twice,
appealed twice, and remanded twice: First at the pleading stage and
then at the summary-judgment stage. In the course of deciding those
two appeals, the Sixth Circuit has held that (1) tire-chalking
constitutes a search under the trespass approach adopted in United
States v. Jones, 565 U.S. 400 (2012), and (2) neither the
community-caretaker, automobile, nor administrative exceptions
apply.
Shortly after the second remand, the Plaintiff filed a renewed
motion for class certification. She seeks to certify (1) a primary,
non-damages class and (2) and a damages subclass.
The Plaintiff defines the primary class as: "All persons (excluding
the presiding judicial officer, his staff, the case counsel and
their staff) who had and/or will have a vehicle tire chalked by a
City of Saginaw parking enforcement officer, without a warrant,
from April 5, 2014 to present." She defines the subclass as: "All
persons within the above-named class who paid a parking ticket from
April 5, 2014 to present as a result of the warrantless chalking of
vehicle tire(s)."
For the primary class, the Plaintiff seeks declaratory and
injunctive relief. For the subclass, she seeks to recover the
amount that the subclass paid in parking tickets.
The Defendants responded to the Plaintiff's Motion to Certify with
a brief in opposition, and a motion for leave to file a second
motion for summary judgment. In sum, they argue that before
considering the Plaintiff's Motion to Certify, the Court should
consider additional summary-judgment briefing on the "other
exceptions" to the warrant requirement.
The Plaintiff has also filed a "conditional" motion for leave to
file a second amended complaint, which would add a formal request
for nominal damages on behalf of the subclass. The motion is
conditional because the Plaintiff wants to amend her complaint only
if the Court declines to certify the subclass due to its damages
theory, reasoning that the subclass "would at least be entitled to
nominal damages" even if not entitled to damages for paid parking
tickets.
II. Discussion
A. Plaintiff's Renewed Motion for Class Certification
1.
The first issue is whether the Court should permit Defendants to
file a second motion for summary judgment before it decides the
Plaintiff's Motion to Certify. Defendants intend to seek summary
judgment on two separate grounds: (1) the "other exceptions" to the
warrant requirement, not yet discussed in the case; and (2) the
lack of a policy or custom of tire-chalking attributable to the
City under Monell v. Department of Social Services of City of New
York, 436 U.S. 658 (1978). By "other exceptions" to the warrant
requirement, the Defendants presumably mean the issue of consent
and the so-called "de minimis exception," which Defendants raised
in their motion for summary judgment, but which this Court declined
to consider. They claim that allowing them to raise these issues
before certification would avoid needless litigation.
Judge Ludington disagrees. He opines that the Defendants have not
shown that another precertification motion would avoid needless
litigation. Despite their track record (and that of the Court), the
Defendants have not used their motion for leave to elaborate on
their prior arguments or explain why those arguments warrant
immediate attention; they simply assert that deferring the
certification issue would conserve judicial resources. The
Defendants have not offered any reason to think that the Sixth
Circuit would appreciate a third opportunity. In the end, their
claim of judicial efficiency is dubious.
Even so, Judge Ludington will grant the Defendants leave to file
another motion for summary judgment after certification. First, the
Defendants' unaddressed arguments, though not immediately
compelling, may have merit and certainly deserve to be considered
if Plaintiff seeks summary judgment after certification. Second,
the Court recently directed supplemental briefing on two issues:
(1) whether the subclass could legally recover damages for parking
tickets under 42 U.S.C. Section 1983, and (2) whether the subclass
could prove that tire-chalking proximately caused the parking
tickets.
Although the Court now agrees with the Plaintiff that these issues
do not preclude certification, they can and should be addressed in
future dispositive briefing. Therefore, the Defendants will be
permitted to file a cross-motion for summary judgment after
certification in accordance with the Court's forthcoming scheduling
order.
2.
The next issue is whether class certification should be granted.
The answer turns on Rule 23's familiar, multi-step analysis. The
first step is to determine whether both the primary non-damages
class and the damages subclass meet Rule 23(a)'s four requirements:
"numerosity, commonality, typicality, and adequate
representation."
Judge Ludington holds that both the primary class and the subclass
meet Rule 23's four requirements. First, both classes are
sufficiently numerous as to make joinder "impracticable." Second,
both classes share common issues of fact and law. Third, the
Plaintiff's claims are "typical of the class claims." Finally,
Plaintiff "will fairly and adequately protect the interests of the
class."
Having decided that both classes satisfy the four requirements of
Rule 23(a), the second step is to determine whether they "fit
within one of the three subsections of Rule 23(b)." As Judge
Ludington explained, the primary class fits within subsection
(b)(2), and the subclass fits within subsection (b)(3).
First, the primary class clearly fits within subsection (b)(2). As
indicated, the Plaintiff seeks an order enjoining the Defendants
from further warrantless tire-chalking and declaring their prior
tire-chalking unconstitutional. In this way, the interests of
primary class members are "homogenous" and need not be protected by
the procedures afforded to a damages class. Accordingly, the
primary class will be certified under subsection (b)(2).
Second, the common questions predominate over the individual ones
and class resolution is clearly superior to individual resolution.
All subclass claims turn on common and complex questions of law
that are best answered in a single proceeding. Even the individual
questions, like the date and time of tire-chalking and ticketing,
rely on data that can be analyzed and compiled in a systematic way.
Indeed, according to Plaintiff, the City has already produced the
necessary data in discovery. Accordingly, the subclass will be
certified under subsection (b)(3).
3.
The final step of certification is the appointment of the class
counsel. In appointing the class counsel, the district court must
consider several factors: (i) the work counsel has done in
identifying or investigating potential claims in the action; (ii)
counsel's experience in handling class actions, other complex
litigation, and the types of claims asserted in the action; (iii)
counsel's knowledge of the applicable law; and (iv) the resources
that counsel will commit to representing the class.
Judge Ludington finds that each of these factors weighs in favor of
appointing the Plaintiff's counsel, Messrs. Philip L. Ellison and
Matthew E. Gronda, as class counsel. First, the Plaintiff's counsel
has been at the helm of the case since they filed it in April 2017.
Second, the Plaintiff's counsel are career-long trial attorneys
with substantial experience in class-action and civil-rights
litigation. Third, the Plaintiff's counsel appears well versed in
the Fourth Amendment and the law of Section 1983. Fourth, the
Plaintiff's counsel represent they are prepared to contribute
"significant resources" to this case, and last five years prove
that they are capable of doing so. Accordingly, the Plaintiff's
counsel will be appointed as the class counsel.
B. Plaintiff's Conditional Motion for Leave to File Second Amended
Complaint
The Plaintiff has also filed a conditional motion for leave to file
a second amended complaint. She asks for leave to add a claim for
nominal damages on behalf of the subclass in the event that the
Court declines to certify the subclass on the basis of its damages
theory. But because the subclass will be certified, the Plaintiff's
conditional motion for leave will be denied as moot. Ultimately,
whether the subclass can recover the amount paid in parking tickets
under 42 U.S.C. Section 1983 is a question of law that can be
addressed at a later date if the Plaintiff prevails on summary
judgment.
III. Conclusion
Accordingly, Judge Ludington granted the Plaintiff's Renewed Motion
to Certify. The primary non-damages class and damages subclass are
certified under Federal Rule of Civil Procedure 23(b)(2) and
(b)(3), respectively. The Plaintiff is appointed as the class
representative, and her counsel, Messrs. Philip L. Ellison and
Matthew E. Gronda, are appointed as the class counsel.
The Defendant's Motion for Leave to File a Second Motion for
Summary Judgment is granted in part and denied in part. The
Defendants may file a cross-motion for summary judgment in
accordance with the Court's forthcoming scheduling order.
Further, Judge Ludington denied as moot the Plaintiff's Conditional
Motion for Leave to File Second Amended Complaint.
A full-text copy of the Court's Jan. 21, 2022 Opinion & Order is
available at https://tinyurl.com/2wm6tnvc from Leagle.com.
SCIENTIFIC GAMES: Reed Wins Leave to File Oversize Brief Instanter
------------------------------------------------------------------
In the case, DONNA REED, individually and on behalf of all others
similarly situated, Plaintiff v. SCIENTIFIC GAMES CORP., a Nevada
corporation, Defendant, Case No. 18-cv-0565-RSL (W.D. Wash.), Judge
Robert S. Lasnik of the U.S. District Court for the Western
District of Washington, Seattle, granted the Plaintiff's Unopposed
Motion for Leave to File Oversize Brief Instanter.
The Plaintiff may file up to a 28-page Motion for Preliminary
Approval of Class Action Settlement Agreement.
A full-text copy of the Court's Jan. 19, 2022 Order is available at
https://tinyurl.com/4prtzfmr from Leagle.com.
SCOTT ASNER: Class Certification Hearing Rescheduled to May 16
--------------------------------------------------------------
In the class action lawsuit captioned as GEORGE HENGLE, et al., On
behalf of themselves and all individuals similarly situated, v.
SCOTT ASNER, et al., Case No. 3:19-cv-00250-DJN (E.D. Va.), the
Hon. Judge David J. Novak entered an order rescheduling the class
certification hearing currently scheduled for 10 a.m. on May 17,
2022 to 10 a.m. on May 16, 2022.
A copy of the Court's order dated Jan. 24, 2022 is available from
PacerMonitor.com at https://bit.ly/34atwxF at no extra charge.[CC]
SEVENTY SEVEN ENERGY: Class Status Bid Must be Filed by May 31
--------------------------------------------------------------
In the class action lawsuit captioned as CHRISTOPHER SNIDER, on
behalf of the Seventy Seven Energy Inc. Retirement & Savings Plan
and a class of similarly situated participants of the Plan, v.
ADMINISTRATIVE COMMITTEE, SEVENTY SEVEN ENERGY INC. RETIREMENT &
SAVINGS PLAN; et al., Case No. 5:20-cv-00977-D (W.D. Okla.), the
Hon. Judge Timothy D. DeGiusti entered an order approving the
parties' proposed specialized scheduling order and setting the
following case management schedule:
1. Discovery shall be limited to May 16, 2022
class certification issues.
All discovery regarding those
issues (including expert discovery)
shall be completed by:
2. The Plaintiff shall file a March 31, 2022
list of experts regarding
class certification issues and
provide expert reports to
Defendants by:
3. The Defendants shall file a May 2, 2022
list of experts regarding
class certification issues
and provide expert reports by:
4. The Plaintiff's motion for May 31, 2022
class certification shall
be filed by:
-- The Defendants' response is due within 40 days after
the motion for class certification is filed:
-- The Plaintiff's reply is due within 20 days thereafter.
-- Within 30 days after the Court's order regarding class
certification, the parties shall jointly file a proposed
schedule for deadlines to make any additional expert
disclosures, file final witness and exhibit lists,
complete discovery, file dispositive and Daubert
motions, and make trial submissions.
Seventy Seven operates as a diversified oilfield services company.
A copy of the Court's order dated Jan. 25, 2022 is available from
PacerMonitor.com at https://bit.ly/3g0c2ag at no extra charge.[CC]
SHARPSPRING INC: Monteverde & Associates Reminds of Mar. 8 Deadline
-------------------------------------------------------------------
Monteverde & Associates PC has filed a class action lawsuit in the
United States District Court the Northern District of Florida, Case
No. 1:21-cv-00209, on behalf of public common shareholders of
SharpSpring, Inc. ("SharpSpring" or the "Company") who held
SharpSpring securities as of the record date on July 28, 2021 and
were harmed by SharpSpring and its board of directors (the
"Board"), alleging violations of Sections 14(a) and 20(a) of the
Securities Exchange Act of 1934 (the "Exchange Act") in connection
with the merger of SharpSpring with Constant Contact, Inc.
("Constant Contact") (the "Transaction").
Under the terms of the Transaction, Constant Contact acquired
SharpSpring, with former SharpSpring stockholders receiving $17.10
per share as part of the all-cash sale (the "Merger
Consideration"). The complaint alleges that the Merger
Consideration was inadequate and that the Proxy provided
stockholders with materially incomplete and misleading information
with the Securities and Exchange Commission, in violation of
Sections 14(a) and 20(a) of the Exchange Act. The merger was
completed on September 1, 2021.
Mr. Juan Monteverde is available to personally discuss this case
with you and if you wish to serve as lead plaintiff, you must move
the Court no later than March 8, 2022. Any member of the putative
class may move the Court to serve as lead plaintiff through counsel
of their choice or may choose to do nothing and remain an absent
class member.
Monteverde & Associates PC is a national class action securities
and consumer litigation law firm that has recovered millions of
dollars for shareholders and is committed to protecting investors
and consumers from corporate wrongdoing. Monteverde & Associates
lawyers have significant experience litigating Mergers &
Acquisitions and Securities Class Actions, whereby they protect
investors by recovering money and remedying corporate misconduct.
Mr. Monteverde, who leads the legal team at the firm, has been
recognized by Super Lawyers as a Rising Star in Securities
Litigation in 2013, 2017-2019, an award given to less than 2.5% of
attorneys in a particular field. He has also been selected by
Martindale-Hubbell as a 2017-2021 Top Rated Lawyer. Our firm's
recent successes include changing the law in a significant victory
that lowered the standard of liability under Section 14(e) of the
Exchange Act in the Ninth Circuit. Thereafter, our firm
successfully preserved this victory by obtaining dismissal of a
writ of certiorari as improvidently granted at the United States
Supreme Court. Emulex Corp. v. Varjabedian, 139 S. Ct. 1407 (2019).
Also, over the years the firm has recovered or secured over a dozen
cash common funds for shareholders in mergers & acquisitions class
action cases.
Contact:
Juan E. Monteverde, Esq.
MONTEVERDE & ASSOCIATES PC
The Empire State Building
350 Fifth Ave, Suite 4405
New York, NY 10118
United States of America
jmonteverde@monteverdelaw.com
Tel: (212) 971-1341
URL : http://monteverdelaw.com
Contact Information:
jmonteverde@monteverdelaw.com [GN]
SIMPLY THE BEST: Fails to Pay Proper OT Wages, Naranjo Suit Says
----------------------------------------------------------------
RAFAEL NARANJO and CARLOS ALBERTO RAMIREZ, individually and on
behalf of all others similarly situated, Plaintiffs v. SIMPLY THE
BEST REPAIR LTD., and FA MANAGEMENT INC. and ANTONIOS FIORENTINOS,
as an individual, Defendants, Case No. 1:22-cv-00422 (E.D.N.Y.,
Jan. 25, 2022) arises from the Defendants' failure to pay proper
overtime wages and to provide wage notices and wage statements to
Plaintiffs and all others similarly situated pursuant to the Fair
Labor Standards Act and the New York Labor Law.
Mr. Naranjo was employed by the Defendants from September 1994
until December 2021 as a vehicle painter while performing related
miscellaneous duties for the Defendants. Mr. Ramirez worked for the
Defendants from April 1998 until March 2020 as a repair man while
also performing related miscellaneous duties for the Defendants.
Simply the Best Repair Ltd. and FA Management Inc. are domestic
business corporations in New York which provide repair management
services.[BN]
The Plaintiffs are represented by:
Roman Avshalumov, Esq.
HELEN F. DALTON & ASSOCIATES, P.C.
80-02 Kew Gardens Road, Suite 601
Kew Gardens, NY 11415
Telephone: (718) 263-9591
SMILE BRANDS: Edwards Files FDCPA Suit in C.D. California
---------------------------------------------------------
A class action lawsuit has been filed against Smile Brands, Inc.
The case is styled as Tammie Edwards, on behalf of herself and
others similarly situated v. Smile Brands, Inc., Case No.
8:22-cv-00075-DOC-ADS (C.D. Cal., Jan. 14, 2022).
The lawsuit is brought over alleged violation of the Fair Debt
Collection Practices Act.
Smile Brands, Inc. -- https://smilebrands.com/ -- provides support
services to general and multi-specialty dental groups.[BN]
The Plaintiff is represented by:
Aaron D. Radbil
Alexander D. Kruzyk
GREENWALD DAVIDSON RADBIL PLLC
401 Congress Avenue, Suite 1540
Austin, TX 78701
Phone: (512) 803-1578
Email: aradbil@gdrlawfirm.com
akruzyk@gdrlawfirm.com
- and -
Michael S Morrison
ALEXANDER MORRISON AND FEHR LLP
1900 Avenue of the Stars Suite 900
Los Angeles, CA 90067
Phone: (310) 394-0888
Email: mmorrison@amfllp.com
SPECIALIZED LOAN: Mitchell Appeals Summary Judgment in FCRA Suit
----------------------------------------------------------------
Plaintiff ERIC T. MITCHELL filed an appeal from a court ruling
entered in the lawsuit entitled Eric T. Mitchell v. Specialized
Loan Servicing LLC, et al., Case No. 2:20-cv-10455-SB-PD, in the
U.S. District Court for the Central District of California, Los
Angeles.
The lawsuit was removed from the Superior Court of the State of
California for the County of Los Angeles to the U.S. District Court
for the Central District of California on November 16, 2020.
The case arose from the Defendants' alleged violations of the Fair
Credit Reporting Act, the California's Business and Professions
Code, breach of contract and negligence.
As reported in the Class Action Reporter on Jan. 10, 2022, the Hon.
Judge Stanley Blumenfeld Jr. entered an order:
1. granting the Defendant's motion for summary judgment;
2. dismissing on the merits with prejudice the Plaintiff's
claims; and
3. denying as moot Plaintiff's motion for class
certification.
The Plaintiff is challenging this order and has filed an appellate
case captioned as Eric Mitchell v. Specialized Loan Servicing LLC,
Case No. 22-55107, in the United States Court of Appeals for the
Ninth Circuit, on Jan. 26, 2022.
The briefing schedule in the Appellate Case states that:
-- Appellant Eric T. Mitchell Mediation Questionnaire is due on
February 2, 2022;
-- Transcript shall be ordered by February 24, 2022;
-- Transcript is due on March 28, 2022;
-- Appellant Eric T. Mitchell opening brief is due on May 5,
2022;
-- Appellee Specialized Loan Servicing LLC answering brief is
due on June 6, 2022; and
-- Appellant's optional reply brief is due 21 days after service
of the answering brief.[BN]
Plaintiff-Appellant ERIC T. MITCHELL, an individual, on behalf of
himself and all others similarly situated, is represented by:
Caleb Lucas-Hansen Marker, Esq.
ZIMMERMAN REED, LLP
2381 Rosecrans Avenue, Suite 328
Manhattan Beach, CA 90245
Telephone: (562) 216-7387
Defendant-Appellee SPECIALIZED LOAN SERVICING LLC, a Delaware
limited liability company, is represented by:
Matthew A. Morr, Esq.
BALLARD SPAHR, LLP
1225 17th Street, Suite 2300
Denver, CO 80202
Telephone: (303) 292-2400
E-mail: morrm@ballardspahr.com
SPORTS WAREHOUSE: Fails to Protect Customers' Info, Solter Claims
-----------------------------------------------------------------
ERIK SOLTER and LORNE BULLING, individually and on behalf of all
others similarly situated, Plaintiffs v. SPORTS WAREHOUSE d/b/a
TENNIS WAREHOUSE; RUNNING WAREHOUSE, LLC; WILDERNESS SPORTS
WAREHOUSE LLC d/b/a TACKLE WAREHOUSE; and SKATE WAREHOUSE, LLC,
Defendants, Case No. 2:22-cv-00460 (C.D. Cal., January 21, 2022) is
a class action against the Defendants for negligence, breach of
implied contract, unjust enrichment, and violations of the
California Consumer Privacy Act, the California Unfair Competition
Law, the Oregon Consumer Identity Theft Protection Act, and the
Oregon Unlawful Trade Practices Act.
The case arises from the Defendants' alleged failure to take
adequate and reasonable measures to protect the personally
identifiable information (PII) of the Plaintiffs and similarly
situated customers. On October 1, 2021, hackers infiltrated and
accessed the Defendants' inadequately protected payment card
environment and systems and stolen customers' payment card
information. Furthermore, the Defendants failed to warn their
customers about their inadequate information security practices and
failed to provide timely notice to their customers about the data
breach. As a result of the data breach, the Plaintiffs and Class
members have suffered damages, says the suit.
Sports Warehouse, doing business as Tennis Warehouse, is a sporting
goods business, with its principal place of business at 181
Suburban Road, San Luis Obispo, California.
Running Warehouse, LLC is an online shoe, clothing and running gear
business, with its principal place of business at 181 Suburban
Road, San Luis Obispo, California.
Wilderness Sports Warehouse LLC, doing business as Tackle
Warehouse, is an online fishing and sporting goods business, with
its principal place of business at 181 Suburban Road, San Luis
Obispo, California.
Skate Warehouse, LLC is an online skateboards, skate clothing, and
footwear business, with its principal place of business at 181
Suburban Road, San Luis Obispo, California. [BN]
The Plaintiffs are represented by:
Benjamin Heikali, Esq.
Ruhandy Glezakos, Esq.
Joshua Nassir, Esq.
FARUQI & FARUQI, LLP
10866 Wilshire Boulevard, Suite 1470
Los Angeles, CA 90024
Telephone: (424) 256-2884
Facsimile: (424) 256-2885
E-mail: bheikali@faruqilaw.com
rglezakos@faruqilaw.com
jnassir@faruqilaw.com
- and –
Lori G. Feldman, Esq.
GEORGE GESTEN MCDONALD, PLLC
102 Half Moon Bay Drive
Croton-on-Hudson, NY 10520
Telephone: (917) 983-9321
Facsimile: (888) 421-4173
E-mail: LFeldman@4-Justice.com
- and –
David J. George, Esq.
Brittany L. Brown, Esq.
GEORGE GESTEN MCDONALD, PLLC
9897 Lake Worth Road, Suite #302
Lake Worth, FL 33467
Telephone: (561) 232-6002
Facsimile: (888) 421-4173
E-mail: DGeorge@4-Justice.com
BBrown@4-Justice.com
- and –
Janine L. Pollack, Esq.
Michael Liskow, Esq.
CALCATERRA POLLACK, LLP
1140 Avenue of the Americas, 9th Floor
New York, NY 10036
Telephone: (917) 899-1765
Facsimile: (332) 206-2073
E-mail: jpollack@calcaterrapollack.com
mliskow@calcaterrapollack.com
SPROUT FOODS: Simmons Suit Transferred to D. New Jersey
-------------------------------------------------------
The case styled as Emily Simmons, Lynn Huntley, Salvatore Stile,
Frances Pressley, individually, and on behalf of all others
similarly situated v. Sprout Foods, Inc., Does 1 through 10,
inclusive, Case No. 3:21-cv-00488, was transferred from the U.S.
District Court for the District of Connecticut, to the U.S.
District Court for the District of New Jersey on Jan. 26, 2022.
The District Court Clerk assigned Case No. 2:22-cv-00386 to the
proceeding.
The nature of suit is stated as Other Fraud.
Sprout Foods, Inc. -- https://sproutorganics.com/ -- manufactures
organic baby food products.[BN]
STAR BRANDS: Pretzels' White Fudge Label "Deceptive," Cox Claims
----------------------------------------------------------------
INGRID COX, individually and on behalf of all others similarly
situated, Plaintiff v. STAR BRANDS NORTH AMERICA, INC., Defendant,
Case No. 3:22-cv-00141-JPG (S.D. Ill., January 22, 2022) is a class
action against the Defendant for breach of contract, negligent
misrepresentation, fraud, unjust enrichment, breaches of express
warranty, implied warranty of merchantability/fitness for a
particular purpose and Magnuson Moss Warranty Act, and violations
of Illinois Consumer Fraud and Deceptive Business Practices Act and
State Consumer Fraud Acts.
According to the complaint, the Defendant is engaged in false,
deceptive, and misleading advertising, labeling, and marketing of
its pretzels under the Flipz brand. The representation of the
product as "White Fudge [Covered Pretzels]" is false, deceptive and
misleading because it lacks the type and amounts of ingredients
consumers expect in fudge. The value of the product that the
Plaintiff purchased was materially less than its value as
represented by the Defendant. Had the Plaintiff and Class members
known the truth, they would not have bought the product or would
have paid less for it, says the suit.
Star Brands North America, Inc. is a confectionery conglomerate
with its principal place of business in Stamford, Connecticut.
[BN]
The Plaintiff is represented by:
Spencer Sheehan, Esq.
SHEEHAN & ASSOCIATES, P.C.
60 Cuttermill Rd., Ste. 409
Great Neck, NY 11021
Telephone: (516) 268-7080
E-mail: spencer@spencersheehan.com
STATE FARM: Bid for Extension of Discovery & PTO Deadlines OK'd
---------------------------------------------------------------
In the class action lawsuit captioned as Singh v. State Farm Life
Insurance Company, Case No. 3:21-cv-00190 (D. Or.), the Hon. Judge
John V. Acosta entered an order granting motion for Extension of
Discovery & PTO Deadlines as follows:
(1) Defendant's response to May 11, 2022
class certification and
any expert report due by:
(2) The Plaintiff's reply in Aprill 8, 2022
support of motion for
class certification and
any rebuttal class
certification expert
report due by:
The nature of suit states diversity contract dispute –
insurance.[CC]
STEMILT AG: Hearing on Second Class Status Bid Reset to Feb. 4
--------------------------------------------------------------
In the class action lawsuit captioned as GILBERTO GOMEZ GARCIA,
JONATHAN GOMEZ RIVERA, JOSE RODRIGUEZ LLERENAS, FRANCISCO MUÑOZ
MEDRANO, SANDRO VARGAS LEVYA, ALEJANDRO CHAVEZ MONROY, and VICTOR
FRANCISCO PADILLA PLASCENCIA, as individuals and on behalf of all
other similarly situated persons, v. STEMILT AG SERVICES LLC, Case
No. 2:20-cv-00254-SMJ (E.D. Wash.), the Hon. Judge Salvador
Mendoza, Jr. entered an order that:
1. By no later than Friday, January 28, 2021, the parties
shall submit supplemental briefing addressing the
following:
A. Whether FLCA claims arising from the August 2017
Clearance 10 Order are timely under American Pipe &
Const. Co. v. Utah, 414 U.S. 538 (1974). The parties
shall submit a detailed timeline of all dates relevant
to this determination.
B. The Defendant shall explain its position that "American
Pipe tolling could have extended the deadline to
September 14, but no further." Specifically, Defendant
shall explain the relevance of "September 14."
2. The parties' briefing shall not exceed six (6) pages.
3. The hearing on Plaintiff's Second Motion for Class
Certification, is stricken and reset to Friday, February
4, 2022, at 9:00 A.M. The hearing will occur in-person,
and all counsel are expected to be present.
The Defendant submits that the Court erred in permitting Jose
Rodriguez Llerenas and Francisco Munoz Medrano to intervene as
class representatives to assert FLCA claims on behalf of persons
who worked under the August 2017 Clearance Order.
The Defendant's argument is premised on the contention that FLCA
claims arising from the August claims relate back to the draft
complaint, the Court deems it necessary for the parties to submit
supplemental briefing on whether these claims are timely under
American Pipe & Const. Co. v. Utah, 414 U.S. 538 (1974).
Stemilt AG was founded in 2011. The company's line of business
includes providing farm management services.
A copy of the Court's order dated Jan. 25, 2022 is available from
PacerMonitor.com at https://bit.ly/3r3P1tb at no extra charge.[CC]
STUPP BROS: Conditional Class Cert Discovery Extended to Feb. 28
----------------------------------------------------------------
In the class action lawsuit captioned as ANNA STOKLOSA,
Individually And On Behalf Of All Others Similarly Situated, STUPP
BROS., INC. d/b/a STUPP CORPORATION, Case No. 3:21-cv-00162-SDD-SDJ
(M.D. La.), the Hon. Judge Shelly D. Dick entered an order granting
the joint motion to extend the deadline to issue class and other
deadlines to be extended for an additional 90 days, as follows:
1. Discovery Pertaining to the Feb. 28, 2022
issue of conditional class
certification shall be due by:
2. Plaintiffs to file a Motion April 11, 2022
for Conditional Class
Certification of Collective
Action and for Notice to
Prospective Class Members by:
Stupp Bros is a privately-owned company focused on providing
infrastructure development in the United States as well as serving
the St. Louis market through a community bank.
A copy of the Court's order dated Jan. 25, 2022 is available from
PacerMonitor.com at https://bit.ly/3IEVpgn at no extra charge.[CC]
SVA HEALTHCARE: Review of Class Certification in Rave Suit Tossed
-----------------------------------------------------------------
In the case, Timothy Rave, Plaintiff-Respondent v. SVA Healthcare
Services, LLC, Defendant-Appellant-Petitioner, Case No. 2019AP2236
(Wis.), the Supreme Court of Wisconsin issued an Opinion:
a. granting Rave's motion to dismiss; and
b. dismissing SVA's petition for review of court of appeals'
decision affirming a circuit court order that certified a
class and appointed Rave as class representative.
The case is before the Supreme Court on a petition for review filed
by the Defendant-Appellant-Petitioner SVA. In the underlying suit,
Plaintiff-Respondent Rave alleged that SVA, a medical records
vendor, charged him and others similarly situated a fee for copies
of medical records that exceeded the fee restrictions in Wis. Stat.
Section 146.83(3f)(b) (2019-20).
In its petition for review, SVA seeks review of an unpublished
decision of the court of appeals, Rave v. SVA Healthcare Servs.,
LLC, No. 2019AP2236, unpublished slip op. (Wis. Ct. App. Apr. 27,
2021), affirming a circuit court order that certified a class and
appointed Rave as class representative. The sole issue before the
Court is whether the circuit court properly exercised its
discretion when it granted Rave's motion for class certification.
On Nov. 26, 2021, the Supreme Court issued Townsend v. ChartSwap,
LLC, 2021 WI 86, 399 Wis.2d 599, 967 N.W.2d 21. There, it held that
the fee restrictions in Wis. Stat. Section 146.83(3f)(b) apply only
to "health care providers" as defined in Section 146.81(1).
Following the issuance of Townsend, Rave filed a motion to dismiss
or alternatively stay the matter. In the motion, Rave describes SVA
as "a records retrieval company acting on behalf of a healthcare
provider." It states that "although this appeal addresses another
issue" -- i.e., the propriety of class certification -- "Rave
recognizes that his underlying claims, which are identical to those
alleged in Townsend, ultimately fail based on the Supreme Court's
recent ruling. As such, this appeal is moot."
Mr. Rave asks the Supreme Court to dismiss the appeal, and further
states that he "has agreed to dismiss the underlying action with
prejudice." It alternatively seeks a stay of the matter.
SVA Healthcare Services has responded to Rave's motion. It writes
that it "wholeheartedly agrees that the Supreme Court's decision in
Townsend will ultimately be dispositive of Rave's claims against
SVA in the action." Nevertheless, it claims that, notwithstanding
Townsend, the appeal is not moot, and even if it were, the case
falls within two of the established exceptions to the mootness
doctrine given the number of other pending cases, challenging
charges for medical records, in which the propriety of class
certification is at issue.
The Supreme Court agrees with Rave that Townsend renders the matter
moot. Rave does not argue that SVA is a health care provider, and
nothing before the Supreme Court suggests that SVA meets the
definition of a health care provider provided in Wis. Stat. Section
146.81(1). Consistent with Townsend, then, Rave has not stated a
plausible claim that SVA is directly liable for a violation of Wis.
Stat. SEction 146.83(3f)(b).
The Supreme Court notes, too, that Townsend's holding applies
equally to every other member of the class that Rave represents,
which consists of individuals whom SVA billed for copies of medical
records in amounts that allegedly exceeded the fee caps in Wis.
Stat. Section 146.83(3f)(b). The effect is to moot the only
question on appeal: Whether Rave's suit was properly certified as a
class action. Under Townsend, the answer is "no": Neither Rave nor
any of the unnamed class members have a plausible claim that SVA is
directly liable for a violation of Section 146.83(3f)(b).
It is true, as SVA points out in its response to Rave's motion,
that the Supreme Court may overlook mootness when a case presents
questions that are recurring or likely to recur, and that signal a
need for guidance and certainty. But SVA does not meaningfully
explain what essential guidance would be provided, or what
uncertainty would be avoided, if the Supreme Court were to continue
with the appeal and further discuss the propriety of class
litigation of a claim made under a statute that does not, by its
terms, apply to SVA, as Townsend makes clear and both parties now
agree.
Given the above, the Supreme Court accepts Rave's concession that
its decision in Townsend makes the case moot. It, therefore, grants
Rave's motion to dismiss, and dismisses the petition for review.
The review of the decision of the court of appeals is dismissed.
The appeal is dismissed.
A full-text copy of the Court's Jan. 19, 2022 Opinion is available
at https://tinyurl.com/56d5tny7 from Leagle.com.
For the defendant-appellant-petitioner, there were briefs filed by
David J. Hanus -- dhanus@hinshawlaw.com -- Corey J. Swinick --
CSwinick@hinshawlaw.com -- and Hinshaw & Culbertson LLP, in
Milwaukee, Wisconsin.
For the plaintiff-respondent, there was a brief filed by Robert J.
Welcenbach -- robert@welcenbachlaw.com -- and Welcenbach Law
Offices, S.C., Milwaukee; with whom on the brief was Scott C.
Borison and Legg Law Firm LLC, Baltimore, Maryland; with whom on
the brief was Jon Craig Jones and Jones & Hill, LLC, in Oakdale,
Louisiana.
An amicus curiae brief was filed on behalf of the Wisconsin
Hospital Association, Inc. and the Wisconsin Civil Justice Council,
Inc. by Sara J. Maccarthy -- smaccarthy@hallrender.com -- Stephane
P. Fabus , Heather D. Mogden and Hall, Render, Killian, Heath &
Lyman, P.C., in Milwaukee, Wisconsin.
TOSHIBA CORPORATION: Stoyas Loses Bid for Class Certification
--------------------------------------------------------------
In the class action lawsuit captioned as MARK STOYAS, NEW ENGLAND
TEAMSTERS & TRUCKING INDUSTRY PENSION FUND, and AUTOMOTIVE
INDUSTRIES PENSION TRUST FUND, individually and on behalf of all
others similarly situated, a Japanese Corporation, v. TOSHIBA
CORPORATION, a Japanese Corporation, Case No. 2:15-cv-04194-DDP-JC
(C.D. Cal.), the Hon. Judge Dean D. Pregerson entered an amended
order denying the plaintiffs' motion for class certification.
The court denies the Plaintiffs' Motion for Class Certification
regarding the Exchange Act claims. The court further denied
Plaintiffs' Motion for Class Certification regarding the Financial
Instruments & Exchange Act of Japan (JFIEA) claims, without
prejudice.
As described in the court's prior Order, named Plaintiffs
Automotive Industries Pension Trust Fund (AIPTF) and New England
Teamsters & Trucking Industry Pension Fund (NETTPF) are pension
funds formed for the benefit of auto industry and trucking
workers.
On June 4, 2016, Plaintiffs filed a putative securities class
action against Defendant, alleging violations of the U.S.
Securities Exchange Act of 1934 and the JFIEA in connection with
allegations of accounting fraud and misrepresentations.
The Plaintiffs allege that on March 23, 2015, AIPTF purchased
36,000 shares of unsponsored Toshiba American Depositary Receipts
("ADRs") "through transactions on the OTC Market in the United
States thereby acquiring an ownership interest in 216,000 shares
of common stock issued and authorized for sale by Toshiba."
The Plaintiff further asserts that between April 1, 2015 and
October 27, 2015, NETTIPF purchased 343,000 shares of Toshiba's
common stock. According to Plaintiffs, both AIPTF and NETTIPF
"utilized the services of professional investment managers to
direct the purchase and sale of Toshiba securities on [their]
behalf." In their motion for class certification, Plaintiffs
indicate that AIPTF accessed the OTC market through AIPTF's
investment manager, ClearBridge Advisors LLC.
On March 20, 2015, Clearbridge placed a buy order for unsponsored
ADRs in New York, through its broker, Barclays Capital LE
("Barclays"), also located in New York. Barclays thereafter
"purchased [the ADRs] for AITPF on the OTC Market using the OTC
Link trading platform." On March 26, 2015, AIPTF paid for the ADRs
by transferring $922,057.20 to Barclays from its custodian bank in
New York.
The Plaintiffs now bring a motion to certify a class of securities
purchasers under Federal Rule of Civil Procedure 23(b)(3), defined
as:
"All persons who purchased securities listed under the ticker
symbols TOSYY or TOSBF [between May 8, 2012 and November 12,
2015] using the facilities of the OTC Market ("American
Securities Purchasers"); and
"All citizens and residents of the United States who
purchased shares of Toshiba 6502 common stock [between May 8,
2012 and November 12, 2015] ("6502 Purchasers").
AIPTF and NETTPF bring JFIEA claims on behalf of all proposed class
members. AIPTF also brings claims under the Exchange Act on behalf
of the American Securities Purchasers.
Toshiba Corporation is a "worldwide enterprise that engages in the
research development, manufacture, construction, and sale of a wide
variety of electronic and energy products and services,"
headquartered in Tokyo, Japan.
A copy of the Court's order dated Jan. 25, 2022 is available from
PacerMonitor.com at https://bit.ly/3g0hDx7 at no extra charge.[CC]
TOTAL AGGREGATE: Isaacs Seeks to Conditionally Certify Class
------------------------------------------------------------
In the class action lawsuit captioned as JAMES ISAACS, individually
and on behalf of all others similarly situated, and LANCE BISHOP,
v. TOTAL AGGREGATE, LLC; TANDEM TRUCKING, LLC; LAURIE RANNEY KYLES;
KIRBY KYLES; and KASEY KYLES, Case No. 5:21-cv-00945-J (W.D.
Okla.), the Plaintiffs ask the Court to enter an order granting
their motion for conditional certification.
The Plaintiffs also request the Court grant the proposed Notice, &
Consent Form and opt-in procedure.
The Plaintiffs request that the certification schedule accommodate
follow-up telephone calls by Collective Counsel to those Putative
Collective Members are former employees or whose contact
information, during the course of the class certification schedule,
is shown to be incorrect or no longer valid.
The Plaintiffs contend that they have met their burden to provide
"substantial allegations" that Defendants' workers were paid under
the same, illegal, straight-time-for-overtime pay practice.
The Defendants allegedly failed to pay their hourly employees
overtime wages required under federal law. The Defendants instead
maintained a uniform practice of paying these employees
straight-time-for-overtime. This practice flagrantly violates the
Fair labor Standards Act (FLSA).
The Plaintiffs seek to allow their coworkers -- other hourly
employees subject to the same illegal pay practice -- to receive
notice of this collective action.
The Defendants own and operate a fleet of trucks to haul aggregate,
dirt, rock, and earth in and around the Oklahoma City area. To do
so, their main work force is composed of drivers. As a standard
practice, however, none of the Defendants' hourly workers are paid
an overtime premium for hours worked over 40 in a workweek, the
lawsuit says.
A copy of the Plaintiffs' motion to certify class dated Jan. 24,
2022 is available from PacerMonitor.com at https://bit.ly/3H2Jxo6
at no extra charge.[CC]
The Plaintiffs are represented by:
Matthew S. Parmet, Esq.
PARMET PC
3 Riverway, Ste. 1910
Houston, TX 77056
Telephone (713) 999 5228
E-mail: matt@parmet.law
ULTA BEAUTY: Hearing on Motion to Join in Hansber Suit Vacated
--------------------------------------------------------------
In the case, SHAHARA HANSBER, NANG CHAN, and JESUS MORENO, on
behalf of themselves, all others similarly situated, and the
general public, Plaintiffs v. ULTA BEAUTY COSMETICS, LLC, and DOES
1-100, Defendants, Case No. 1:21-cv-00022-AWI-BAK (SAB) (E.D.
Cal.), Judge Anthony W. Ishii of the U.S. District Court for the
Eastern District of California vacated the Jan. 24, 2022 hearing on
Defendant Ulta Beauty's motion to join.
Defendant Ulta Beauty has filed under Federal Rule of Civil
Procedure 19(a) a motion to join necessary parties that is set to
be heard by the Court on Jan. 24, 2022.
The named Plaintiffs have filed a class action complaint in which
they allege that the Defendants violated California wage-and-hour
and unfair competition laws. Defendant Ulta Beauty has filed its
motion to join that is set to be heard by the Court on Jan. 24,
2022.
Judge Ishii finds that the pending motion should be referred to the
assigned magistrate judge, Magistrate Judge Stanley A. Boone, for
entry of findings and recommendations pursuant to 28 U.S.C. Section
636(b)(1) and Federal Rule of Civil Procedure 72.
Accordingly, the pending motion to join necessary parties is
referred to Magistrate Judge Stanley A. Boone. The Jan. 24, 2022
hearing before Judge Ishii is vacated. If Magistrate Judge Boone
desires a hearing on the pending motion, Magistrate Judge Boone's
chambers will contact the parties and set a hearing date at his
convenience.
A full-text copy of the Court's Jan. 19, 2022 Order is available at
https://tinyurl.com/yckpjpnh from Leagle.com.
UNITED STATES: More Military, Civilian Families File Water Claims
-----------------------------------------------------------------
Mahealani Richardson, writing for Hawaii News Now, reports that in
another step toward a possible class-action lawsuit, more military
and civilian families are filing claims against the Navy over the
tainted water crisis.
Elisapeta Alaimaleata is an American Samoan nonprofit leader and
lives in Halsey Terrace military housing. She says she's had hair
loss, rashes and dizziness from the fuel-tainted and smelly water.
"Being out of the shower, we feel like we are high. We feel like we
are dizzy," said Alaimaleata.
She says her husband, who retired from the Army, also had lesions
and was bleeding onto their bed.
Their dog almost died and their taro plants shriveled from the
watering.
"I'm really scared to know that we consumed water that is
contaminated for a very long time," she said.
The Navy has said the contamination of its water line was
short-term -- most likely caused by two spills in May and November
of last year.
Alaimaleata is one of about 20 claimants working with private
attorney and former Hawaii Attorney General Margery Bronster.
"We felt it was necessary to go after the Navy because they are
ones responsible," said Bronster, of Bronster Fujichaku Robbins
Attorneys at Law.
They held a news conference on Jan. 19 with medical experts and a
mainland law firm.
"The government at the highest levels turns its back on its service
members and that's why we got involved in this case," said attorney
Corey Weck.
"If you drink water with fuel in it, it doesn't necessarily
disperse in a uniform way. It tends to concentrate in certain
tissues and we worry about it concentrating in brain and neuro
tissue," added Dr. Larry McEvoy, emergency room physician and
healthcare CEO.
During a recent congressional hearing, Navy leaders said they were
complying with the state's emergency order to defuel the Red Hill
tanks, but refused to concede that the state had the legal
authority over the Navy.
"That's one of the reasons why we felt it was necessary to step in
for the claimants because I don't know if the Navy is going to
listen to the state," said Bronster.
As part of this legal process, Bronster said active-duty military
cannot file claims, but family members can.
Navy leaders have said they don't know how much the claims and
litigation would cost the government. So far, dealing with the
crisis has cost $250 million. [GN]
UNITED STATES: Navy Seals Seek to Certify Class & Subclasses
------------------------------------------------------------
In the class action lawsuit captioned as U.S. NAVY SEALs 1-3, on
behalf of themselves and all others similarly situated; U.S. NAVY
EXPLOSIVE ORDNANCE DISPOSAL TECHNICIAN 1, on behalf of himself and
all others similarly situated; U.S. NAVY SEALS 4-26; U.S. NAVY
SPECIAL WARFARE COMBATANT CRAFT CREWMEN 1-5; and U.S. NAVY DIVERS
1-3, v. LLOYD J. AUSTIN, III, in his official capacity as United
States Secretary of Defense; UNITED STATES DEPARTMENT OF DEFENSE;
CARLOS DEL TORO, in his official capacity as United States
Secretary of the Navy, Case No. 4:21-cv-01236-O (N.D. Tex.), the
Plaintiffs ask the Court to enter an order certifying the following
class and subclasses under Rule 23(b)(2) of the Federal Rules of
Civil Procedure:
(a) a class of all members of the United States Navy who are
subject to the Navy's COVID-19 Vaccine Mandate and who
have submitted a Religious Accommodation request
concerning the Navy's COVID-19 Vaccine Mandate ("Navy
Class");
(b) a subclass of all members of the Navy Class who are now
or will be assigned to Naval Special Warfare or Naval
Special Operations, who are subject to the Navy's COVID-
19 Vaccine Mandate, and who have submitted a Religious
Accommodation request concerning the Navy's COVID-19
Vaccine Mandate ("Naval Special Warfare/Operations
Subclass"); and
(c) a subclass of all members of the Navy Class who are now
or will be United States Navy SEALs, who are subject to
the Navy's COVID-19 Vaccine Mandate, and who have
submitted a Religious Accommodation request concerning
the Navy's COVID-19 Vaccine Mandate ("Navy SEALs
Subclass").
The Plaintiffs further request that the Court enter an order
appointing Plaintiffs' counsel as class counsel under Rule 23(g) of
the Federal Rules of Civil Procedure.
The United States Department of Defense is an executive branch
department of the federal government charged with coordinating and
supervising all agencies and functions of the government directly
related to national security and the United States Armed Forces.
A copy of the Plaintiffs' motion to certify class dated Jan. 25,
2022 is available from PacerMonitor.com at https://bit.ly/3g2pBGa
at no extra charge.[CC]
The Plaintiffs are represented by:
Kelly J. Shackelford, Esq.
Jeffrey C. Mateer, Esq.
Hiram S. Sasser, III, Esq.
David J. Hacker, Esq.
Michael D. Berry, Esq.
Justin Butterfield, Esq.
Danielle Runyan, Esq.
Holly M. Randall, Esq.
FIRST LIBERTY INSTITUTE
2001 W. Plano Pkwy., Ste. 1600
Plano, TX 75075
Telephone: (972) 941-4444
E-mail: jmateer@firstliberty.org
hsasser@firstliberty.org
dhacker@firstliberty.org
mberry@firstliberty.org
jbutterfield@firstliberty.org
drunyan@firstliberty.org
hrandall@firstliberty.org
- and -
Jordan E. Pratt, Esq.
FIRST LIBERTY INSTITUTE
227 Pennsylvania Ave., SE
Washington, DC 20003
Telephone: (972) 941-4444
E-mail: jpratt@firstliberty.org
- and -
Heather Gebelin Hacker, Esq.
Andrew B. Stephens, Esq.
HACKER STEPHENS LLP
108 Wild Basin Road South, Suite 250
Austin, TX 78746
Telephone: (512) 399-3022
E-mail: heather@hackerstephens.com
andrew@hackerstephens.com
UNIVAR SOLUTIONS: Mismanaged 401(K) Plan, Coyer Suit Alleges
------------------------------------------------------------
TODD COYER, KARL KISNER, LAURYN OVERBEY, LISA SOLOMON, and SONNY
PIKE, individually and as representatives of a class of similarly
situated persons, on behalf of the UNIVAR SOLUTIONS 401(K) PLAN
f/k/a the UNIVAR USA INC. VALUED INVESTMENT PLAN, Plaintiffs v.
UNIVAR SOLUTIONS USA INC., THE BOARD OF DIRECTORS OF UNIVAR
SOLUTIONS USA INC., THE RETIREMENT PLAN COMMITTEE OF UNIVAR
SOLUTIONS USA INC.; and DOES No. 1-20, whose names are currently
unknown, Defendants, Case No. 1:22-cv-00362 (N.D. Ill., January 21,
2022) is a class action against the Defendants for breach of
fiduciary duty; failure to monitor fiduciaries and co-fiduciary
breaches; and in the alternative, liability for knowing breach of
trust under the Employee Retirement Income Security Act.
According to the complaint, the Defendants have breached their
fiduciary duties to the Univar Solutions 401(K) Plan by: (1)
failing to fully disclose the expenses and risk of the Plan's
investment options to participants; (2) allowing unreasonable
expenses to be charged to participants; and (3) selecting,
retaining, and/or otherwise ratifying high-cost and
poorly-performing investments, instead of offering more prudent
alternative investments when such prudent investments were readily
available at the time the Defendants selected and retained the
funds at issue and throughout the Class Period. As a result of the
Defendants' alleged fiduciary breaches, the Plan has suffered
millions of dollars in losses.
Univar Solutions USA Inc. is a global chemical and ingredients
distributor, headquartered in Downers Grove, Illinois. [BN]
The Plaintiffs are represented by:
P. Andrew Fleming, Esq.
Andrew P. Shelby, Esq.
NOVACK AND MACEY LLP
100 North Riverside Plaza
Chicago, IL 60606
Telephone: (312) 516-5610
Facsimile: (312) 419-6928
E-mail: andrewf@novackmacey.com
ashelby@novackmacey.com
- and –
James E. Miller, Esq.
Laurie Rubinow, Esq.
MILLER SHAH LLP
65 Main Street
Chester, CT 06412
Telephone: (866) 540-5505
Facsimile: (866) 300-7367
E-mail: jemiller@millershah.com
lrubinow@millershah.com
- and –
James C. Shah, Esq.
Alec J. Berin, Esq.
MILLER SHAH LLP
1845 Walnut Street, Suite 806
Philadelphia, PA 19103
Telephone: (866) 540-5505
Facsimile: (866) 300-7367
E-mail: jcshah@millershah.com
ajberin@millershah.com
- and –
Kolin C. Tang, Esq.
MILLER SHAH LLP
19712 MacArthur Blvd.
Irvine, CA 92612
Telephone: (866) 540-5505
Facsimile: (866) 300-7367
E-mail: kctang@millershah.com
- and –
Mark K. Gyandoh, Esq.
Gabrielle Kelerchian, Esq.
CAPOZZI ADLER, P.C.
312 Old Lancaster Road
Merion Station, PA 19066
Telephone: (610) 890-0200
Facsimile: (717) 233-4103
E-mail: markg@capozziadler.com
gabriellek@capozziadler.com
- and –
Donald R. Reavey, Esq.
CAPOZZI ADLER, P.C.
2933 North Front Street
Harrisburg, PA 17110
Telephone: (717) 233-4101
Facsimile: (717) 233-4103
E-mail: donr@capozziadler.com
UPPER SAINT CLAIR: Dist. Court Denies Doe's Emergency Bid for TRO
-----------------------------------------------------------------
In the case, DOE 1, et al., Plaintiffs v. UPPER SAINT CLAIR SCHOOL
DISTRICT, et al., Civil Action No. 2:22-cv-112 (W.D. Pa.), Judge
William S. Stickman of the U.S. District Court for the Western
District of Pennsylvania denied the Plaintiffs' Emergency Motion
for a Temporary Restraining Order.
I. Background
On Dec. 8, 2021, the Pennsylvania Supreme Court held that the
Acting Secretary of the Pennsylvania Department of Health ("PADOH")
lacked authority to enter an Aug. 31, 2021, Order (with an
effective date of Sept. 7, 2021), requiring the wearing of "face
coverings" while indoors, "regardless of vaccination status," for
all K-12 public school districts in the Commonwealth of
Pennsylvania (see Corman v. Acting Sec'y of Pa. Dep't of Health,
___ A.3d _____, 2021 WL 6071796 (Pa. 2021)). In so doing, the
decision to wear face coverings (i.e., masking) in Pennsylvania
schools was returned to the people through their elected directors
to school boards.
Prior to the Corman decision, the School Board of the Upper Saint
Clair School District adopted a Health and Safety Plan ("Plan"), on
June 28, 2021, which required universal masking "because COVID-19
transmission rates in Allegheny County had increased from
`Moderate' in July to 'High' in early August." The Plan was updated
on August 18, 2021, and "the School District continued to require
universal masking in school buildings [(and on school buses)] while
the rate of transmission of COVID-19 remained in a high
transmission rate of infection in Allegheny County."
After the issuance of the Pennsylvania Supreme Court's decision,
the School Board voted on Jan. 10, 2022, by a 7-2 majority, to
update the Plan, and it eliminated the universal masking
requirement in school buildings. Effective Jan. 24, 2022, mask
wearing will be optional in school buildings. The new Plan
"strongly recommends face coverings for all students, staff,
volunteers, and visitors indoors in all District K-12 schools
regardless of vaccination status. Masks should be well-fitting,
properly worn, and in line with CDC mask recommendations." It goes
on to state that the School District will "comply with any local,
state, and/or federal requirements for face coverings/masks, as
applicable." The physical distancing provisions remained the same
as those contained in the Aug. 18, 2021, Plan.
On Jan. 19, 2022, five groups of parents brought this action
against the School District and its nine School Board members for
declaratory and injunctive relief on their own behalf and as
parents of children who are "medically vulnerable to COVID-19," and
on behalf of "a class of similarly situated disabled children who
are at severe risk of illness and injury due to their
disabilities." They contend that the School District has 400
"medically fragile disabled students," "just under 100 students
that either had cancer or have some type of autoimmune deficiency,"
and "300 additional students that suffer from upper respiratory
conditions."
The Plaintiffs are pseudonymous parents who bring the action "in
their own capacity and as parents" of Child Does 1-5. They allege
that their children are "medically fragile disabled students" and
that permitting families and students to choose whether to mask
will subject them to increased risk of catching COVID-19 and
increased risk of harm from the virus. They allege that, in light
of their children's medical conditions, the School Board's decision
to make masking optional violates both Title II of the Americans
with Disabilities Act ("ADA"), 42 U.S.C. Section 12132, and Section
504 of the Rehabilitation Act of 1973 ("Section 504" or
"Rehabilitation Act"), 29 U.S.C. Section 794(a).
To be clear, the Plaintiffs do not allege that the policy adopted
by the School Board hinders their own child's ability to wear a
mask. Rather, they allege that, by permitting other students and
families to choose whether to wear masks, the policy violates the
cited statutes.
The Plaintiffs ask the Court to issue an Order enjoining the Upper
Saint Clair School District "from implementing the Jan. 10, 2022,
Board decision to eliminate the requirement of masks in the
District until such time as the rate of community transmission is
not at a rate of 'substantial' or 'high.'" The effect of the
requested relief would be that, notwithstanding the vote of the
School Board, universal masking would be ordered to remain in place
for an indefinite period, provided that transmission of COVID-19
remains "substantial" or "high" in Allegheny County.
II. Discussion
A. Plaintiffs have not demonstrated a reasonable likelihood of
success on the merits.
The Plaintiffs base their claims on the contention that the School
Board's decision to make masking optional -- left to the choice of
students and their families violates the ADA and Section 504 of the
Rehabilitation Act. There is no allegation, nor have facts been
adduced, to suggest that any policy of the School Board prevents
the Plaintiffs' children from masking. They remain free to do so.
Rather, they contend that unless the School Board requires the
entire school community to mask, it will subject them to an
increased risk of COVID-19 infection, which could increase their
chances of suffering a severe case. Their request for injunctive
relief is premised on the position that universal masking is the
only reasonable accommodation to which they are entitled under the
ADA and the Rehabilitation Act.
Judge Stickman holds that the Plaintiffs are not entitled to the
requested relief because they have not established a reasonable
likelihood of success on the merits. To find that plaintiffs are
likely to prevail on the merits, it is not necessary that the
moving party's right to a final decision after trial be wholly
without doubt; rather, the burden is on the party seeking relief to
make a prima facie case showing a reasonable probability that it
will prevail on the merits."
Judge Stickman opines that the Plaintiffs cannot do so for three
reasons: (1) it is unlikely that the Plaintiffs will be able to
demonstrate the injury-in-fact necessary to confer Article III
standing; (2) it is likely that the Plaintiffs failed to exhaust
administrative remedies; and (3) the Plaintiffs are unlikely to
prevail on a substantive basis because the accommodation that they
seek is not reasonable. Because the Plaintiffs have failed to
demonstrate a reasonable likelihood of success on the merits, they
have failed to meet their burden for a temporary restraining
order.
B. Other considerations weigh against injunctive relief.
Having held that the Plaintiffs have not shown that they are
reasonably likely to succeed on the merits of their claims, Judge
Stickman explains that the Court is not required to examine the
other three prongs of the inquiry for a TRO -- i. e., (2) whether
the movant will suffer irreparable injury unless the injunction
issues; (3) whether granting preliminary relief will result in even
greater harm to the nonmoving party; and (4) whether the public
interest favors such relief. He will, however, briefly address
considerations that implicate, directly and indirectly, the last
two factors because of the novelty and timeliness of the issues
presented in this matter.
Judge Stickman holds that granting this TRO would risk imposing
substantial harm upon the School District and that doing so would
run contrary to the public interest. Specifically, he believes that
granting the relief sought would risk upsetting the system of
popular governance of schools that is an important part of our
system of layered and answerable government.
The sole accommodation demanded by the Plaintiffs would supersede
the democratic vote of the School Board on an issue that elicits
strong feelings not only from the Plaintiffs, but also from other
members of the public. Further, the legal theory proffered by the
Plaintiffs unduly amplifies the authority of CDC recommendations
while, at the same time, severely curtailing the practical
authority of the people, through their elected school directors, to
make decisions on matters of prudential judgment.
Judge Stickman holds that the Plaintiffs' position if accepted,
would essentially graft the recommendations of the CDC into the ADA
and the Rehabilitation Act. And as a practical matter, elevating
CDC recommendations to the level of law would serve to take many
decisions relating to health policy and directly impacting citizens
out of the hands of their elected representatives and put them into
the hands of unknown and unanswerable CDC decisionmakers and
unelected and unanswerable federal judges.
There is no question that COVID-19 has challenged every American
institution. The Country will continue to face challenges that have
scientific or technical considerations which are informed by
experts within or outside of government. Governments at all levels
would do well to weigh and consider the advice offered by those
experts. However, in a democratic republic, the ultimate answer to
the question of "who decides" must be the people through their
elected and answerable representatives.
In the case, Judge Stickman believes that the entry of a TRO would
damage the independence and authority of the School Board -- the
directly elected body entrusted by State law with setting policy
for the School District. It would lead, in practical effect, to the
elevation of CDC recommendations beyond their appropriate level of
authority and to the exclusion of local, democratic authority over
matters of prudential judgment. Judge Stickman holds that these
considerations weigh in favor of a finding that entry of a TRO
would be contrary to the public interest.
III. Conclusion
For the reasons he set forth, Judge Stickman denied the Plaintiffs'
Emergency Motion for a Temporary Restraining Order. An Order of the
Court will follow.
A full-text copy of the Court's Jan. 21, 2022 Opinion is available
at https://tinyurl.com/2p86xzw8 from Leagle.com.
VALVE CORP: Briefing Schedule for Dismissal Bid Filed in Wolfire
----------------------------------------------------------------
The parties in the case, Wolfire Games, LLC, Sean Colvin, Davis,
Daniel Escobar, William Herbert, Ryan Lally, Hope Marchionda,
Everett Stephens, individually and on behalf of all others
similarly situated, Plaintiffs v. Valve Corporation, Defendant,
Case No. 2:21-cv-00563-JCC (W.D. Wash.), filed with Judge John C.
Coughenour of the U.S. District Court for the Western District of
Washington, Seattle, their proposed briefing schedule for Valve's
forthcoming Motion to Dismiss.
Pursuant to the Court's Dec. 30, 2021 Order, the deadline for Valve
to respond to the Plaintiffs' Second Amended Consolidated Class
Action Complaint is Jan. 28, 2022. Valve intends to respond via a
Motion to Dismiss, to be filed on Jan. 28, 2022.
The parties have conferred and jointly propose the following
briefing schedule for Valve's forthcoming Motion to Dismiss:
(i) The Plaintiffs will have until March 11, 2022, to file
any response in opposition to Valve's Motion to Dismiss.
(ii) Valve will have until April 8, 2022, to file any reply
in support of Valve's Motion to Dismiss.
The parties believe that good cause exists for these modifications,
including that the matter is a complex antitrust class action that
requires additional time to adequately prepare these submissions,
as well as to avoid scheduling conflicts. This proposed briefing
schedule is identical to that set on Valve's forthcoming Motion to
Dismiss in Dark Catt Studios Holdings, Inc., et al. v. Valve
Corporation, Case No. 2:21-cv-00872-JCC (Dkt. #63).
The parties respectfully request that the Court enters an Order
setting these briefing deadlines as stipulated.
A full-text copy of the Stipulated Motion filed on Jan. 19, 2022 is
available at https://tinyurl.com/4axyz5ut from Leagle.com.
Alicia Cobb -- aliciacobb@quinnemanuel.com -- QUINN EMANUEL
URQUHART & SULLIVAN, LLP, in Seattle, Washington.
Gavin W. Skok -- gskok@foxrothschild.com -- Laura P. Hansen, FOX
ROTHSCHILD LLP, in Seattle, Washington.
Steig D. Olson -- steigolson@quinnemanuel.com -- (pro hac vice)
David LeRay (pro hac vice) Shane Seppinni (pro hac vice) Charles B.
Casper (pro hac vice) QUINN EMANUEL URQUHART & SULLIVAN, LLP in
Philadelphia, Pennsylvania, Attorneys for Defendant Valve
Corporation.
Adam Wolfson -- adamwolfson@quinnemanuel.com -- (pro hac vice)
QUINN EMANUEL URQUHART & SULLIVAN, LLP, in Los Angeles,
California.
Charles Stevens -- charliestevens@quinnemanuel.com -- (pro hac
vice) QUINN EMANUEL URQUHART & SULLIVAN, LLP, in San Francisco,
California.
David Golden -- dgolden@constantinecannon.com -- (pro hac vice)
CONSTANTINE CANNON LLP, in Washington, D.C.
A. Owen Glist -- akapoor@constantinecannon.com -- (pro hac vice)
Ankur Kapoor (pro hac vice) Jeffrey I. Shinder (pro hac vice)
CONSTANTINE CANNON LLP, in New York City, Attorneys for Wolfire
Games, LLC, William Herbert, and Daniel Escobar.
Kenneth J. Rubin -- kjrubin@vorys.com -- (pro hac vice) Timothy B.
McGranor (pro hac vice) Kara M. Mundy (pro hac vice) VORYS, SATER,
SEYMOUR ANwD PEASE LLP, in Columbus, Ohio.
Thomas N. McCormick -- tnmccormick@vorys.com -- (pro hac vice)
VORYS, SATER, SEYMOUR AND PEASE LLP, in Newport Beach, California,
Attorneys for Sean Colvin, Everett Stephens, Ryan Lally, Susann
Davis, and Hope Marchionda.
Gavin W. Skok, Laura P. Hansen, FOX ROTHSCHILD LLP, in Seattle,
Washington.
Charles B. Casper -- ccasper@mmwr.com -- (pro hac vice) in
Philadelphia, Pennsylvania, Attorneys for Defendant Valve
Corporation
VILLAGE OF HIGHLAND: Jones Seeks to Certify FLSA Collective Case
----------------------------------------------------------------
In the class action lawsuit captioned as CA'LIEL JONES On behalf of
himself and all others similarly situated, v. VILLAGE OF HIGHLAND
HILLS, Case No. 1:21-cv-00914-DCN (N.D. Ohio), the Parties ask the
Court to enter an order, pursuant to Federal Rules of Civil
Procedure 26(d) and 83(b), and Section 16(b) of the Fair Labor
Standards Act ("FLSA"), and hereby jointly agree to conditionally
certify the present FLSA case as a collective action pursuant to 29
U.S.C. section 216(b) and order that notice be given to the
putative class members.
The Parties hereby stipulate to the following:
1. The Parties are providing for Court approval a jointly-
proposed notice, proposed cover email to putative
collective action members, and proposed opt-in consent
form.
2. The Defendant shall within 10 days following the Court's
approval of conditional certification provide Plaintiff a
list in electronic form containing the name, last known
home address (including zip code), last known email
address [if Defendant does not have an email address for a
particular putative class member, then they may indicate
this when producing contact information and no further
effort will be required on their part], of all putative
class members identified as follows:
"All present and former firefighters, emergency medical
technicians, paramedics, and employees with similar job
titles and/or duties of Defendant during the period of May
3, 2018 to September 15, 2021."
3. The Plaintiff's counsel shall mail the notice to the
individuals appearing on the list via First Class Mail and
send notice electronically by electronic mail. The
Plaintiff may issue notice by way of a third-party
administrator. Costs of any notice shall be borne by
Plaintiff, and such notice shall be sent reasonably
promptly.
4. The potential plaintiffs shall be provided, and the opt-in
period will close as to thepotential opt-in plaintiffs, 60
days after Plaintiff's counsel's regular mailing of the
jointly-proposed notice and opt-in form, and Plaintiff's
counsel's emailing of the proposed cover email to putative
collective action members along with the proposed notice
and opt-in form.
5. The opt-in period will be extended only if (1) the Parties
agree to permit late filings, or (2) good cause is shown
regarding why the opt-in form is not postmarked prior to
the deadline. Opt-in forms received by mail shall be
considered timely if received within 10 business days of
the deadline.
6. Except as provided herein, neither Party shall contact,
either directly or indirectly, any of the potential opt-in
plaintiffs concerning this matter through the end of the
opt-in period, except that Plaintiff's counsel may respond
to inquiries from the potential opt-in plaintiffs during
this time;
7. The Defendant does not waive any defenses to liability as
to the issues in this case, and Defendant maintains any
and all defenses to liability. Likewise, Defendant
reserves the right to file a motion to decertify the class
following the completion of discovery.
A copy of the Parties' motion dated Jan. 25, 2022 is available from
PacerMonitor.com at https://bit.ly/3r4tyjZ at no extra charge.[CC]
The Plaintiff is represented by:
Joseph F. Scott, Esq.
Ryan A. Winters, Esq.
Kevin M. McDermott II, Esq.
SCOTT & WINTERS LAW FIRM, LLC
The Caxton Building
812 Huron Rd. E., Suite 490
Cleveland, OH 44115
Telephone: (216) 912-2221
Facsimile: (216) 350-6313
E-mail: jscott@ohiowagelawyers.com
rwinters@ohiowagelawyers.com
kmcdermott@ohiowagelawyers.com
The Defendant is represented by:
John D. Latchney, Esq.
HANNA, CAMPBELL & POWELL, LLP
3737 Embassy Parkway, Suite 100
Akron, OH 44333
Telephone: (330) 670-7602
Facsimile: (330) 670-7458
E-mail: jlatchney@hcplaw.net
VOLKSWAGEN AG: Bronstein, Gewirtz Reminds of March 15 Deadline
--------------------------------------------------------------
Bronstein, Gewirtz & Grossman, LLC notifies investors that a class
action lawsuit has been filed against Volkswagen AG ("Volkswagen"
or the "Company") (OTCMKTS: VWAGY) and certain of its officers, on
behalf of shareholders who purchased or otherwise acquired
Volkswagen depositary receipts ("ADRs") between March 29, 2021 and
March 30, 2021, (the "Class Period"). Such investors are encouraged
to join this case by visiting the firm's site:
www.bgandg.com/vwagy.
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 filed in this class action alleges that throughout
the Class Period, 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, the lawsuit alleges that Defendants failed
to disclose to investors that: (1) the name "Voltswagen" was never
going to be used by the Company's U.S. subsidiary; (2) the Company
and its spokespeople purposefully misled reporters, even after the
reporters' inquiries about whether the name change was an April
Fool's joke; and (3) as a result, Defendants' public statements and
statements to journalists were materially false and/or misleading
at all relevant times.
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/vwagy 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
Volkswagen you have until March 15, 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]
VOLKSWAGEN GROUP: Sued Over Failure to Disclose Defect in Vehicles
------------------------------------------------------------------
Meghan Gioffe, Melissa Anido, and Alan Wurzelbacker, individually,
and on behalf of a class of similarly situated individuals v.
VOLKSWAGEN GROUP OF AMERICA, INC., a New Jersey corporation, d/b/a
AUDI OF AMERICA, INC., AUDI AG, a German corporation, and
VOLKSWAGEN AG, a German corporation, Case No. 1:22-cv-00193-NLH-AM
(D.N.J., Jan. 14, 2022), is brought against the Defendants by
failing to disclose a defect in the design, manufacture, and/or
workmanship of the gateway control module and the compartment of an
Audi vehicle.
The Defendants sold, directly or indirectly, through their agent
dealers and other retail outlets, the Class Vehicles throughout the
United States, without disclosing that the Class Vehicles' gateway
control module was dangerously exposed to moisture infiltration by
placing it in an unsealed compartment located below the rear bench
seat of the vehicles where it was easily exposed to liquid. The
compartment allows rainwater to infiltrate the module from outside
the vehicle as well as allows liquids from everyday spills in the
interior of the vehicle to reach the gateway module. A gateway
module is one of the central control units in any modern vehicle.
It functions as the relay through which different control modules
communicate, including the modules responsible for controlling a
vehicle's drivetrain and the airbags.
The proper functioning of the gateway control module is essential
in Class Vehicles. As a result, if the gateway control module is
damaged, the vehicle immediately displays several warnings and
shuts down even if it is currently being driven. Often, a driver
will be unable to turn the vehicle back on. VW wrongfully and
intentionally concealed a defect in the design, manufacture, and/or
workmanship of the gateway control module and the compartment in
which it sits such that liquid easily infiltrates the module and
destroys it (the "Defect"). The Defect allows both minute amounts
of liquid spilled inside the vehicle and rainwater which splashes
up from the road from outside the vehicle to access the gateway
control module. As a result, the gateway control module fails and
immediately shuts down the vehicle. Plaintiffs and Class Members
incur out of pocket costs to repair or replace the damaged engine
control module because VWGoA denies warranty coverage for this
issue. Replacement of the gateway control module costs between
$1,300 and $1,800, not including any repairs to other components
that also may be damaged when the module shorts.
Moreover, the Defendants failed to disclose the existence of the
Defect and further, gave consumers no warnings prior to the
purchase of their vehicles that the vehicles are particularly
susceptible to sudden failure due to the Defect. Instead,
Defendants placed this critical vehicle component beneath the rear
bench, directly under cupholders, thereby encouraging passengers to
bring their beverages into the vehicle. Despite creating this risk,
Defendants failed to put in a liquid-proof shielding to avoid such
calamity. Certainly, no reasonable consumer would purchase a
vehicle that is unable to be driven during a rainstorm.
The Defect presents a safety risk for Plaintiffs and Class Members
because the gateway control module suddenly and unexpectedly fails,
resulting in the Class Vehicles immediately losing power. It goes
without saying that a sudden loss of power poses a clear-cut safety
risk—it can prevent the driver from accelerating, maintaining
speed, adequately controlling the steering wheel, or engaging the
brakes, all of which drastically increase the risk of collisions.
The Defect is also material because consumers incur significant and
unexpected repair costs. VW's failure to disclose, at the time of
purchase, the gateway control module compartment's vulnerability to
liquid is material because no reasonable consumer expects that
their vehicle will be unable to be driven in the rain or be so
vulnerable as to make bringing a bottle of water in the backseat an
unacceptable risk. Had VW disclosed the Defect, Plaintiffs and
Class Members would not have purchased the Class Vehicles or would
have paid less for them, says the complaint.
The Plaintiffs purchased or leased any 2017 or later model Audi
vehicle equipped with a gateway control module (designated by
Defendants as a "J533" module) located under the rear bench seats
("Class Vehicles").
The Defendants VWAG, Audi AG, or both, designed and manufactured
the Class Vehicles, and Defendant VWGoA imported, distributed,
marketed, and sold the Class Vehicles through its extensive network
of authorized dealerships in the United States.[BN]
The Plaintiffs are represented by:
Lawrence Deutsch, Esq.
Abigail J. Gertner, Esq.
BERGER MONTAGUE PC
1818 Market Street, Suite 3600
Philadelphia, PA 19103
Phone: (215) 875-3000
Fax: (215) 875-4604
Email: ldeutsch@bm.net
agertner@bm.net
WALL & ASSOCIATES: 2nd Circuit Affirms Dismissal of Vandermast Suit
-------------------------------------------------------------------
In the case, JEFFREY VANDERMAST, ON BEHALF OF THEMSELVES AND ALL
PERSONS SIMILARLY SITUATED, BRIDGET VANDERMAST, ON BEHALF OF
THEMSELVES AND ALL PERSONS SIMILARLY SITUATED,
Plaintiffs-Appellants v. WALL & ASSOCIATES, INC.,
Defendant-Appellee, Case No. 20-3831 (2d Cir.), the U.S. Court of
Appeals for the Second Circuit affirmed the district court's
judgment entered on Oct. 22, 2020, dismissing the
Plaintiffs-Appellants' complaint against the Defendant-Appellee.
I. Background
The underlying complaint asserts related claims for common-law
fraud, but on appeal the Vandermasts challenge the dismissal only
as to their fraud claim brought under New York State General
Business Law ("NY GBL") section 349.
In October 2016, the Vandermasts entered an agreement with Wall for
tax-relief services regarding the Vandermasts' state and federal
tax liabilities in tax years 2000 through 2015. Days after
executing the Agreement, the Vandermasts purported to terminate it
and demanded that Wall refund the payments they had made to Wall,
totaling $23,820.
The Vandermasts first sued Wall in New York state court, alleging
causes of action for money had and received, fraud, conversion, and
unjust enrichment. The state court dismissed the action based
principally on the Agreement's forum-selection clause, in which the
parties agreed: "Jurisdiction for any action by the Vandermasts, or
by Wall, to enforce this agreement, or concerning services under
this agreement, or concerning charges under this agreement, will be
exclusively in the Virginia courts located in Fairfax County,
Virginia."
After the dismissal, the Vandermasts sued Wall again in the same
New York state court, asserting the same causes of action, and then
filed an amended complaint in that action, adding a statutory claim
under NY GBL section 349. Wall removed the case to federal district
court, asserting the parties' diversity. Adopting the report and
recommendation of Magistrate Judge Jeremiah McCarthy, the district
court dismissed the amended complaint, concluding that collateral
estoppel barred the Vandermasts' claims, all of which, in any
event, were also covered by the Agreement's forum-selection clause
and therefore were not properly subject to adjudication in the New
York state courts.
II. Discussion
The Second Circuit affirms the dismissal, concluding that the
Agreement's forum-selection clause requires the Vandermasts to
bring their claims, including their claim under NY GBL section 349,
in Virginia state courts. A forum-selection clause is presumptively
enforceable if the party seeking its enforcement can show that (1)
it "was reasonably communicated to the party resisting
enforcement," (2) it is mandatory rather than permissive, and (3)
"the claims and parties involved in the suit are subject to" the
clause, citing Altvater Gessler-J.A. Baczewski Int'l (USA) Inc. v.
Sobieski Destylarnia S.A., 572 F.3d 86, 89 (2d Cir. 2009).
Once those three elements are established, "the burden shifts to
the party resisting enforcement to rebut the presumption of
enforceability by making a sufficiently strong showing that
enforcement would be unreasonable or unjust, or that the clause was
invalid for such reasons as fraud or overreaching." The Vandermasts
argue that their NY GBL claim is not subject to the forum selection
clause, and that in any event enforcing the forum selection clause
would be unreasonable or unjust.
A. The forum-selection clause applies to the NY GBL claim
To determine the applicability of a forum-selection clause to
particular claims, a court must "examine the substance of the
claims as they relate to the precise language of the clause." By
its terms, the clause at issue applies to "any action by the
Vandermasts, or by Wall, concerning services under or concerning
charges under" the Agreement. Relying on Altvater, the Vandermasts
argue that the clause does not cover their NY GBL claim because
that claim "concerns deceptive acts and practices which occurred
prior to the formation of the agreement" and therefore "did not
'originate' from or 'arise out of' the agreement."
The Second Circuit explains that the gravamen of the NY GBL claim
is the same as that of the Vandermasts' previously raised
common-law fraud claim—namely, that Wall "was able to collect
large fees from the Vandermasts with no intention of ever
performing any services." The NY GBL claim undoubtedly "concerns
services" and "charges" under the Agreement: Indeed, in both
actions the Vandermasts' sought the return of the $23,820 paid to
Wall as damages for the alleged wrong.
The Scond Circuit holds that the Vandermasts' additional factual
allegations in their NY GBL claim, "describing Wall's deceptive
advertising on television and radio and third-party websites," as
well as "misleading statements" on Wall's website, do not alone
place that claim outside the scope of the forum-selection clause:
Whether induced by those advertisements or something else, the
claim still arises from their Agreement with Wall and payment
pursuant to the Agreement. The forum-selection clause therefore
encompasses all of the claims that the Vandermasts have asserted
against Wall in the suit.
B. The forum-selection clause is enforceable
The presumptive enforceability of a forum-selection clause may be
overcome "by a clear showing that the clauses are 'unreasonable'
under the circumstances," citing Roby v. Corp. of Lloyd's, 996 F.2d
1353, 1363 (2d Cir. 1993) (quoting M/S Bremen v. Zapata Off-Shore
Co., 407 U.S. 1, 10 (1972)). Under Roby, a forum-selection clause
may be found unreasonable and unenforceable if (1) its inclusion in
the agreement resulted from fraud or overreaching; (2) the
complaining party will "for all practical purposes be deprived of
his day in court," due to the "grave inconvenience or unfairness of
the selected forum"; (3) "the fundamental unfairness of the chosen
law may deprive the plaintiff of a remedy"; or (4) the clause is
contrary to "a strong public policy of the forum state."
In applying the Roby analysis, the Second Circuit looks to closely
related law developed regarding application of the doctrine of
forum non conveniens. The Vandermasts submit that the Agreement's
forum-selection clause is unreasonable as applied here for several
reasons: (1) it unfairly deprives them of the class-action remedy
(the third Roby factor), (2) it violates New York public policy
favoring consumer class actions (the fourth Roby factor), and (3)
it subjects the Vandermasts to "grave inconvenience" during the
pandemic (the second Roby factor).
The Second Circuit is unpersuaded. First, as to fundamental
unfairness, the question is whether the application of the chosen
law "presents a danger that the Plaintiffs will be deprived of any
remedy or treated unfairly." Second, as to public policy, it is
true that New York maintains a strong public policy in favor of
consumer class actions. But the state also maintains a strong
policy, countervailing here, in favor of enforcing forum-selection
clauses. Finally, any inconvenience caused to the Vandermasts as to
litigating in Virginia during the pandemic cannot overcome the
presumptive enforceability of the forum-selection clause.
III. Conclusion
Therefore, notwithstanding the Vandermasts' newly raised NY GBL
claim, the Second Circuit concludes that the forum-selection clause
is enforceable in the suit as it was in the first. It compelled the
district court to dismiss their complaint. The Second Circuit has
considered the Vandermasts' remaining arguments and finds in them
no basis for reversal. Accordingly, the judgment of the district
court is affirmed.
A full-text copy of the Court's Jan. 19, 2022 Summary Order is
available at https://tinyurl.com/4wk9rym9 from Leagle.com.
EDWARD P. YANKELUNAS -- eyankelunas@hoganwillig.com -- HoganWillig
PLLC, in Amherst, New York, for the Appellants.
BARRY M. KAZAN -- kazan@mintzandgold.com -- Mintz & Gold LLP, in
New York City, for the Appellee.
WASATCH ADVANTAGE: Class Certification Order Modified in USA Suit
-----------------------------------------------------------------
In the class action lawsuit captioned as UNITED STATES OF AMERICA,
ex rel. DENIKA TERRY, ROY HUSKEY III, and TAMERA LIVINGSTON, and
each of them for themselves individually, and for all other persons
similarly situated and on behalf of the UNITED STATES OF AMERICA,
v. WASATCH ADVANTAGE GROUP, LLC, et al., Case No.
2:15-cv-00799-KJM-DB (E.D. Cal.), the Hon. Court entered an order
granting the parties stipulation as follows:
1. The Court finds that Federal Rules of Civil Procedure Rule
23(a) criteria and Rule 23(b)(3) criteria are satisfied as
to the Newly Identified Defendants and that the claims of
the Reimbursement Class may properly be certified as to
the Newly Identified Defendants.
The Reimbursement Class shall continue to have the same
definition, that is:
"All persons who, in the time period starting April 14,
2011 through the final resolution of this matter, (1) have
been tenants at any of Defendants' California properties;
(2) have participated in the "Section 8" Housing Choice
Voucher Program in connection with their tenancies at the
California properties; and (3) have paid additional
charges set forth in Additional Services Agreements in
excess of their individual portions of the contract set
forth in the HAP Contracts."
2. The Court finds that Federal Rules of Civil Procedure Rule
23(a) criteria and Rule 8 23(b)(2) criteria are satisfied
as to the Newly Identified Defendants who continue to be
direct or indirect owners of properties managed by Wasatch
Property Management in California and that the claims of
the Injunctive Relief Class may properly be certified as
to Aspen Park Holdings, LLC, Bent Tree Apartments, LLC,
California Place Apartments, LLC, Canyon Club Holdings,
LLC, Courtyard at Central Park Apartments, LLC, Creekside
Holdings, LTD, Hayward Senior Apartments, LP, Heritage
Park Apartments, LP, Peppertree Apartment Holdings, LP,
Piedmont Apartments, LP, River Oaks Holdings, LLC, Shadow
Way Apartments, LP, Spring Villa Apartments, LP, Sun
Valley Holdings, LTD, Village Grove Apartments, LP,
Wasatch Premier Properties, LLC, and Wasatch Pool Holdings
III, LLC.
The Injunctive Relief Class shall continue to have the
same definition, that is:
"All persons who: (1) are or will become tenants at any of
Defendants' California properties; (2) participate or will
participate in the "Section 8" Housing Choice Voucher
Program in connection with their tenancies at the
California properties; and (3) pay or will pay additional
charges set forth in Additional Services Agreements in
excess of their individual portions of the contract rent
set forth in the HAP Contracts."
3. Accordingly, the Court hereby modifies the Class
Certification order previously entered in this case to add
Aspen Park Holdings, LLC, Bellwood Jerron Holdings, LLC,
Bellwood Jerron Apartments, LP, Bent Tree Apartments, LLC,
California Place Apartments, LLC, Camelot Lakes Holdings,
LLC, Canyon Club Holdings, LLC, Courtyard at Central Park
Apartments, LLC, Creekside Holdings, LTD, Hayward Senior
Apartments, LP, Heritage Park Apartments, LP, Oak Valley
Apartments, LLC, Oak Valley Holdings, LP, Peppertree
Apartment Holdings, LP, Piedmont Apartments, LP, Point
Natomas Apartments, LLC, Point Natomas Apartments, LP,
River Oaks Holdings, LLC, Shadow Way Apartments, LP,
Spring Villa Apartments, LP, Sun Valley Holdings,LTD,
Village Grove Apartments, LP, Wasatch Quail Run GP, LLC,
Wasatch Premier Properties, LLC, Wasatch Pool Holdings
III, LLC as Defendants to the claims of the Reimbursement
Class.
4. Furthermore, the Court hereby modifies the Class
Certification order previously entered in this case to add
Aspen Park Holdings, LLC, Bent Tree Apartments, LLC,
California Place Apartments, LLC, Canyon Club Holdings,
LLC, Courtyard at Central Park Apartments, LLC, Creekside
Holdings, LTD, Hayward Senior Apartments, LP, Heritage
Park Apartments, LP, Peppertree Apartment Holdings, LP,
Piedmont Apartments, LP, River Oaks Holdings, LLC, Shadow
Way Apartments, LP, Spring Villa Apartments, LP, Sun
Valley Holdings, LTD, Village Grove Apartments, LP,
Wasatch Premier Properties, LLC, and Wasatch Pool Holdings
III, LLC as Defendants to the claims of the Injunctive
Relief Class.
The Defendnts include WASATCH PROPERTY MANAGEMENT, INC., WASATCH
POOL HOLDINGS, LLC, CHESAPEAKE APARTMENT HOLDINGS, LLC, LOGAN PARK
APARTMENTS, LLC, LOGAN PARK APARTMENTS, LP, ASPEN PARK HOLDINGS,
LLC, BELLWOOD JERRON HOLDINGS, LLC, BELLWOOD JERRON APARTMENTS, LP,
BENT TREE APARTMENTS, LLC, CALIFORNIA PLACE APARTMENTS, LLC,
CAMELOT LAKES HOLDINGS, LLC, CANYON CLUB HOLDINGS, LLC, COURTYARD
AT CENTRAL PARK APARTMENTS, LLC, CREEKSIDE HOLDINGS, LTD, HAYWARD
SENIOR APARTMENTS, LP, HERITAGE PARK APARTMENTS, LP, OAK VALLEY
APARTMENTS, LLC, OAK VALLEY HOLDINGS, LP, PEPPERTREE APARTMENT
HOLDINGS, LP, PIEDMONT APARTMENTS, LP, POINT NATOMAS APARTMENTS,
LLC, POINT NATOMAS APARTMENTS, LP, RIVER OAKS HOLDINGS, LLC, SHADOW
WAY APARTMENTS, LP, SPRING VILLA APARTMENTS, LP, SUN VALLEY
HOLDINGS, LTD, VILLAGE GROVE APARTMENTS, LP, WASATCH QUAIL RUN GP,
LLC, WASATCH PREMIER PROPERTIES, LLC, WASATCH POOL HOLDINGS III,
LLC, and DOES 1-4.
Wasatch Advantage offers real estate development and management
services.
A copy of the Court's order dated Jan. 25, 2022 is available from
PacerMonitor.com at https://bit.ly/3H9mqs0 at no extra charge.[CC]
The Plaintiffs are represented by:
Laura L. Ho, Esq.
Anne Bellows, Esq.
GOLDSTEIN, BORGEN, DARDARIAN & HO
155 Grand Avenue, Suite 900
Oakland, CA 94612
Telephone: (510) 763-9800
Facsimile: (510) 835-1417
E-mail: lho@gbdhlegal.com
abellows@gbdhlegal.com
- and -
Andrew Wolff, Esq.
LAW OFFICES OF ANDREW WOLFF, PC
1615 Broadway, 4th Floor
Oakland, CA 94612
Telephone: (510) 834-3300
Facsimile: (510) 834-3377
E-mail: andrew@awolfflaw.com
- and -
Jesse Newmark, Esq.
CENTRO LEGAL DE LA RAZA
3022 International Blvd., Suite 410
Oakland, CA 94601
Telephone: (510) 437-1863
Facsimile: (510) 437-9164
E-mail: jessenewmark@centrolegal.org
- and -
Jocelyn Larkin, Esq.
Lindsay Nako, Esq.
THE IMPACT FUND
2080 Addison Street, Suite 5
Berkeley, CA 94704
Telephone: (510) 845-3473
Facsimile: (510) 845-3654
E-mail: jlarkin@impactfund.org
lnako@impactfund.org
WESTSIDE INVESTMENTS: Order on Class Cert Bids Entered in Pastore
-----------------------------------------------------------------
In the class action lawsuit captioned as ERICA PASTORE, et al., v.
WESTSIDE INVESTMENTS, INC., Case No. 2:21-cv-07111-FMO-AFM (C.D.
Cal.), the Hon. Judge Fernando M. Olguin entered an order regarding
motions for class certification as follows:
1. Joint Brief
The parties shall work cooperatively to create a single,
fully integrated joint brief covering each party's
position, in which each issue (or sub-issue) raised by a
party is immediately followed by the opposing
party's/parties' response.
2. Citation to Evidence
All citation to evidence in the joint brief shall be
directly to the exhibit and page number(s) of the
evidentiary appendix, or page and line number(s) of a
deposition.
3. Unnecessary Sections
The parties need not include a "procedural history"
section, since the court will be familiar with the
procedural history. The court is also familiar with the
general standard for class certification, so that need not
be argued.
4. Page Limitation
Each separately-represented party shall be limited to 18
twenty-five (25) pages, exclusive of tables of contents
and authorities. Repetition shall be avoided and, as
always, brevity is preferred. Leave for additional space
will be given only in extraordinary cases.
5. Evidentiary Appendix
The joint brief shall be accompanied by one separate,
tabbed appendix of declarations and written evidence
(including documents, photographs, deposition excerpts,
etc.).
6. Schedule for Preparation and Filing of Joint Brief
A. Meet and Confer
In order for a motion for class certification to 14
filed in a timely manner, the meet and confer must take
place no later than 35 days before the deadline for
class certification motions set forth in the Court's
Case Management and Scheduling Order.
B. No later than seven days after the meet and confer, the
moving party shall personally deliver or e-mail to the
opposing party an electronic copy of the moving party's
portion of the joint brief, together with the moving
party's portion of the evidentiary appendix.
C. No later than 14 days after receiving the moving
party's papers, the opposing party shall personally
deliver or e-mail to the moving party an electronic
copy of the integrated motion, which shall include the
opposing party's portion of the joint brief, together
with the opposing party's portion of the evidentiary
appendix.
D. No later than two days after receiving the integrated
version of the motion and related papers, the moving
party shall finalize it for filing.
7. Failure to Comply with this Order
If it appears from the joint brief that the parties have
not discharged their meet and confer obligations in good
faith, that the parties have not worked to fully integrate
the document, or that the parties have otherwise failed to
fully comply with this Order, the motion shall be
stricken, and the parties shall be required to repeat the
process.
Westside is an independent investment management firm that provides
wealth consultation services.
A copy of the Court's order dated Jan. 24, 2022 is available from
PacerMonitor.com at https://bit.ly/3nXPWJT at no extra charge.[CC]
WHOLE FOODS: Kinzer Appeals Discovery Order in Discrimination Suit
------------------------------------------------------------------
Plaintiffs SAVANNAH KINZER, et al., filed an appeal from a court
ruling entered in the lawsuit styled SAVANNAH KINZER, HALEY EVANS,
and CHRISTOPHER MICHNO, Plaintiffs v. WHOLE FOODS MARKET, INC.,
Defendant, Case No. 20-cv-11358-ADB, in the United States District
Court for the District of Massachusetts.
As reported in the Class Action Reporter, the lawsuit seek
injunctive, declaratory and compensatory relief for violations of
Title VII of the Civil Rights Act of 1964.
Plaintiffs are Whole Foods employees in a number of stores around
the country who began wearing masks with the message "Black Lives
Matter" to protest racism and police violence against African
Americans. Face masks are required in most parts of the US due to
COVID19. Whole Foods allegedly began disciplining employees for
wearing these masks and began sending employees home without pay
for wearing Black Lives Matters masks. Whole Foods has threatened
employees with termination if they continue wearing the masks.
Plaintiffs claim that Whole Foods' selective enforcement of its
dress code in disciplining employees who wear apparel expressing
support for the Black Lives Matter movement constitutes unlawful
discrimination on the basis of race and on the basis of employees'
affiliation with and advocacy for Black employees.
The Plaintiffs have asked the Court to reconsider the portion of
its December 17, 2021 Order, that directs Plaintiffs to produce the
"group text messages" between Plaintiffs and third parties, and
have raised new arguments in support of their request to resist or
defer production. The Plaintiffs do not contend that there is any
privilege that would protect the "group text messages" from
discovery, but ask the Court to find that Defendant's request for
the text messages violates Sections 7 and 8(a)(1) of the National
Labor Relations Act, and to defer, or deny, the request for
discovery on that basis. The Defendant has opposed this request.
On January 12, 2022, Judge Allison D. Burroughs entered an order
denying Plaintiffs' request and requiring Plaintiff Kinzer to
produce group messages that she exchanged with her co-workers.
The Plaintiffs seek a review of this order.
The appellate case is captioned as SAVANNAH KINZER, individually
and on behalf of all others similarly situated; HALEY EVANS,
individually and on behalf of all others similarly situated;
CHRISTOPHER MICHNO, individually and on behalf of all others
similarly situated, Plaintiffs-Appellants v. WHOLE FOODS MARKET,
INC., Defendant-Appellee, Case No. 22-1064, in the United States
Court of Appeals for the First Circuit, filed on Jan. 25, 2022.
The briefing schedule in the Appellate Case states that Appellants'
appearance form, transcript report/order form, and docketing
statement are due on February 8, 2022.[BN]
Plaintiffs-Appellants SAVANNAH KINZER, individually and on behalf
of all others similarly situated; HALEY EVANS, individually and on
behalf of all others similarly situated; CHRISTOPHER MICHNO,
individually and on behalf of all others similarly situated, are
represented by:
Shannon Liss-Riordan, Esq.
Anastasia Doherty, Esq.
LICHTEN & LISS-RIORDAN, P.C.
729 Boylston Street, Suite 2000
Boston, MA 02116
Telephone: (617) 994-5800
E-mail: sliss@llrlaw.com
adoherty@llrlaw.com
XPO LAST: Green, Tejada Seek to Certify Class
---------------------------------------------
In the class action lawsuit captioned as LEON GREEN and WALDO
TEJADA, on behalf of all others similarly situated, v. XPO LAST
MILE, INC., Case No. 3:19-cv-01896-JAM (D. Conn.), the Plaintiffs
ask the Court to enter an order granting class certification on
their misclassification and deduction claims brought under the
Conn. Gen. Stat. section 31-71e.
The Plaintiffs seek certification of the following class:
"All individuals who personally or on behalf of their
business entity, signed a Delivery Service Agreement with XPO
and who personally performed deliveries for XPO full-time in
Connecticut between November 2016 and the present."
Accordingly, the Plaintiffs also request that the Court appoint
them as class representatives; and appoint Lichten & Liss-Riordan,
P.C. as class counsel.
XPO Last Mile provides third-party logistics and last mile delivery
services.
A copy of the Plaintiffs' motion to certify class dated Jan. 24,
2022 is available from PacerMonitor.com at https://bit.ly/35sNIfb
at no extra charge.[CC]
The Plaintiffs are represented by:
Zachary L. Rubin, Esq.
Harold L. Lichten, Esq.
Benjamin J. Weber, Esq.
Olena Savytska, Esq.
LICHTEN & LISS-RIORDAN, P.C.
729 Boylston Street, Suite 2000
Boston, MA 02116
Telephone: (617) 994-5800
E-mail: zrubin@llrlaw.com
hlichten@llrlaw.com
bjweber@llrlaw.com
osavytska@llrlaw.com
XTO ENERGY: Underpays Day Rate Consultants, Duncan Suit Alleges
---------------------------------------------------------------
MATTHEW DUNCAN, individually and on behalf of all others similarly
situated, Plaintiff v. XTO ENERGY, INC., Defendant, Case No.
1:22-cv-00091-UNA (D. Del., January 21, 2022) is a class action
against the Defendant for violation of the Fair Labor Standards Act
by failing to compensate the Plaintiff and similarly situated day
rate consultants overtime pay for all hours worked in excess of 40
hours in a workweek.
The Plaintiff was employed as a day rate consultant from
approximately January 2017 through May 2019.
XTO Energy, Inc. is an international natural gas and oil producer,
doing business in Delaware. [BN]
The Plaintiff is represented by:
Sue L. Robinson, Esq.
Brian E. Farnan, Esq.
Michael J. Farnan, Esq.
FARNAN LLP
919 North Market St., 12th Floor
Wilmington, DE 19801
Telephone: (302) 777-0300
Facsimile: (302) 777-0301
E-mail: srobinson@farnanlaw.com
bfarnan@farnanlaw.com
mfarnan@farnanlaw.com
- and –
Michael A. Josephson, Esq.
Andrew W. Dunlap, Esq.
Carl A. Fitz, Esq.
JOSEPHSON DUNLAP LLP
11 Greenway Plaza, Suite 3050
Houston, TX 77046
Telephone: (713) 352-1100
Facsimile: (713) 352-3300
E-mail: mjosephson@mybackwages.com
adunlap@mybackwages.com
cfitz@mybackwages.com
- and –
Richard J. (Rex) Burch, Esq.
BRUCKNER BURCH PLLC
11 Greenway Plaza, Suite 3025
Houston, TX 77046
Telephone: (713) 877-8788
Facsimile: (713) 877-8065
E-mail: rburch@brucknerburch.com
- and –
Clif Alexander, Esq.
ANDERSON ALEXANDER PLLC
819 N. Upper Broadway
Corpus Christi, TX 78401
Telephone: (361) 452-1279
Facsimile: (361) 452-1284
YALLA GROUP: Lead Plaintiffs Voluntary Dismiss Class Action
-----------------------------------------------------------
Yalla Group Limited ("Yalla" or the "Company") (NYSE: YALA), the
leading voice-centric social networking and entertainment platform
in the Middle East and North Africa (MENA), on Jan. 19 announced
that the lead plaintiffs in a securities class action lawsuit
against the Company and its CEO voluntarily dismissed the lawsuit
on January 12, 2022, which marks a successful and final conclusion
of the lawsuit for the Company.
The lawsuit arose from certain short-seller reports issued in May
2021 that contained numerous errors as well as distorted,
misleading and unsubstantiated claims regarding the Company. While
the Company publicly refuted the claims in the short-seller
reports, a putative securities class action lawsuit was filed
against the Company and its CEO in the United States based on the
claims in the short-seller reports, claiming that the Company had
violated U.S. securities laws. The U.S. court presiding over this
lawsuit ordered the lead plaintiffs and their attorneys to file an
amended complaint by January 7, 2022. After several months of
preparation, the lead plaintiffs and their attorneys failed to file
an amended complaint by the deadline set by the court. Instead, the
lead plaintiffs and their attorneys elected not to further pursue
this lawsuit and voluntarily dismissed the lawsuit on January 12,
2022, agreeing to bear their own litigation costs. Lead plaintiffs
are barred from refiling the same claims. The voluntary dismissal
equally applies to all claims asserted against the Company's CEO,
who was named a co-defendant in the lawsuit. The court approved the
lead plaintiffs' voluntary dismissal on January 13, 2022 and the
lawsuit is terminated.
Throughout the process, the Company maintained that the lawsuit had
no factual basis. The Company believes the decision of the lead
plaintiffs and their attorneys to voluntarily dismiss all of their
claims after several months of preparation supports the Company's
position that claims in the short-seller reports are groundless.
The Company was represented in this securities class action lawsuit
by George Wang and Bryan Jin of Simpson Thacher & Bartlett LLP.
About Yalla Group Limited
Yalla Group Limited is the leading voice-centric social networking
and entertainment platform in the Middle East and Northern Africa
(MENA). The Company's flagship mobile application, Yalla, is
specifically tailored for the people and local cultures of the
region and primarily features Yalla rooms, a mirrored online
version of the majlis or cafés where people spend their leisure
time in casual chats. Voice chats are more suitable to the cultural
norms in MENA compared to video chats. The Company strives to
maintain users' equal status on its platform, thereby encouraging
all users to freely communicate and interact with each other. The
Company also operates Yalla Ludo, a mobile application featuring
online versions of board games that are highly popular in MENA,
such as Ludo and Domino. In-game real-time chats and Ludo chat room
functions are popular social networking features among users.
Through close attention to detail and localized appeal that deeply
resonates with users, Yalla's mobile applications deliver a
seamless user experience that fosters a loyal sense of belonging,
creating a highly devoted and engaged user community.
For more information, please visit: http://ir.yallatech.ae/[GN]
ZEKELMAN INDUSTRIES: Filing of Class Cert. Bid Due May 16
---------------------------------------------------------
In the class action lawsuit captioned as GREGORY GRAHAM v. ZEKELMAN
INDUSTRIES, INC., Case No. 2:21-cv-05484-SDM-KAJ (S.D. Ohio), the
Court entered a scheduling order based upon the Parties' Report
pursuant to Rule 26(f) of the Federal Rules of Civil Procedure:
The Court vacates the Preliminary Pretrial Conference set for
January 26, 2022, and adopts the following schedule:
-- The parties shall exchange January 31, 2022
initial disclosures by:
-- Any motion to amend the March 14, 2022
pleadings or to join
additional parties shall
be filed by:
-- The motion for conditional May 16, 2022
collective action and
class certification
shall be filed by:
-- The Plaintiff will make a July 1, 2022
settlement demand by:
The Defendant will respond by: July 15, 2022
-- The parties agree to make July 2022
a good faith effort to
settle this case. This
matter is referred to
a settlement conference in:
The Plaintiff contends that he and other hourly, non-exempt
production employees employed by the Defendant at Picoma Industries
during the past three years who worked 40 or more hours in any
workweek reported to work prior to the start of their shift to
speak with the operator from the previous shift but were not paid
for this time. The Plaintiff alleges that Defendant violated
federal and Ohio wage and hour laws.
Zekelman manufactures and distributes steel pipes and tubes.
A copy of the Court's order dated Jan. 24, 2022 is available from
PacerMonitor.com at https://bit.ly/3tXCMA6 at no extra charge.[CC]
ZIM SHIPPING: Fails to Pay Proper Wages, Williams Suit Says
-----------------------------------------------------------
DEMINNY WILLIAMS, individually and on behalf of similarly situated
individuals, Plaintiff v. ZIM SHIPPING US LLC, Defendant, Case No.
1:22-cv-00438 (E.D.N.Y., Jan. 25, 2022) arises from the Defendant's
alleged violations of the Fair Labor Standards Act and the New York
Labor Law by failing to pay proper minimum and overtime wages and
failing to provide accurate written wage notices and wage
statements.
The Plaintiff was employed by the Defendant from December 1, 2021
until January 6, 2022.
ZIM Shipping US LLC is a global container shipping company with
principal place of business in Woodward, Oklahoma.[BN]
The Plaintiff is represented by:
Lawrence Spasojevich, Esq.
AIDALA, BERTUNA & KAMINS, P.C.
546 5th Avenue
New York, NY 10036
Telephone: (212) 486-0011
E-mail: ls@aidalalaw.com
[*] Australia Sees Rise of State-Based Class Action Regimes
-----------------------------------------------------------
Damian Grave, Liz Poulos, Ante Golem, Leah Watterson and Ben Davis,
in an article for Lawyers Weekly, report that over the three
decades since the introduction of the Federal Court of Australia's
class action regime, class action litigation has become an
increasingly prominent feature of the Australian legal landscape,
write Damian Grave, Liz Poulos, Ante Golem, Leah Watterson and Ben
Davis.
Despite a number of recent reforms targeted at the Federal Court's
class action regime and litigation funders, the 12-month period
between 4 March 2020 and 3 March 2021 saw the highest number of
class actions commenced in Australia since the introduction of the
Federal Court class action regime on 4 March 1992.
Whilst the Federal Court continues to be the jurisdiction of choice
for the majority of Australian class actions, the number of class
actions being commenced under state-based class action regimes has
continued to rise in recent years.
Australia now has substantially similar class action regimes in
four states, Victoria (2000), NSW (2011), Queensland (2017) and
Tasmania (2019), with Western Australia's Supreme Court procedure
expected to be brought in line with Part IVA of the Federal Court
of Australia Act 1976 (Cth) later this year following the passage
of the Civil Procedure (Representative Proceedings) Bill 2021
through the Western Australian Legislative Assembly in October
2021.
The most recent empirical data published by Monash University
Professor Vince Morabito from May 2021 indicates that since the
commencement of the federal regime in 1992 until 3 March 2021,
there have been approximately 740 class actions filed in total
across Australia; 541 of these class actions -- approximately 73
per cent -- were commenced under the federal class action procedure
in the Federal Court of Australia. The remaining 199 class actions
-- approximately 27 per cent -- have been commenced under one or
more of the Victorian, NSW, or Queensland state-based class action
regimes in the respective state supreme courts.
Notably, in the four-year period between 4 March 2017 and 3 March
2021, the proportion of all class actions commenced under
state-based class action regimes rose to approximately 39 per cent,
with class actions filed in the state supreme courts representing
93 of the 238 class actions filed in that period. Of these 93
proceedings, 43 proceedings have been filed in the NSW Supreme
Court, 40 proceedings have been filed in the Victorian Supreme
Court, and 10 proceedings have been filed in the Queensland Supreme
Court.
As at 3 March 2021, no representative proceedings had yet been
filed with the Tasmanian Supreme Court since the commencement of
Part VII of the Supreme Court Civil Procedure Act 1932 (Tas) on 9
September 2019.
Although the state-based class action regimes are substantially
similar to the Federal Court's regime, differences between the
state class action regimes and their federal counterpart are
becoming more common. An early indication of the potential impact
of recent contingency fees reforms in Victoria with the
introduction of s33ZDA of the Supreme Court Act 1986 (Vic), which
took effect from 1 July 2020, can be seen in Professor Morabito's
data, which indicates that, in the 12-month period between 4 March
2020 and 3 March 2021, of the 27 class actions commenced under
state-based regimes, 22 (81 per cent) were commenced in the
Victorian Supreme Court.
The Supreme Court of Victoria has now considered these new
contingency fee provisions on at least two occasions. In September
2021, the court determined, in the circumstances of the first case,
that the plaintiffs had not established a sufficient basis for an
order to be made. Most recently, in December 2021, the court was
satisfied, in the circumstances of a different case, to make such
an order. This is an area that will continue to further evolve
following further judicial consideration.
We anticipate that the combination of the introduction of a new
class action regime in Western Australia, and state-based reforms
and developments, are likely to result in a continued rise in the
proportion of class actions commenced under state-based regimes.
Damian Grave, Liz Poulos and Ante Golem are partners, Leah
Watterson is an executive counsel, and Ben Davis is a solicitor at
Herbert Smith Freehills. [GN]
[*] Villages of Lake in the Hills and Cary Sue Over PFAS Exposure
-----------------------------------------------------------------
Ben Szalinski, writing for Shaw Local News Network, reports that
the villages of Lake in the Hills and Cary are considering filing a
class action lawsuit after chemical pollutants were found at some
water production sites last year.
The villages said in a joint news release on Jan. 18 that they
would be seeking common legal representation to evaluate how much
of the chemicals are present and how costs from modifying their
wells can be recovered.
Chemicals known as PFAS, which are man-made chemicals used in
nonstick and water- and stain-resistant products, were found in the
water last spring during routine testing by the Illinois
Environmental Protection Agency. Lake in the Hills Village
Administrator Fred Mullard said the village decided to close one of
the village's wells near the intersection of Council Trail and
Jesse Road as a precaution.
"Since it was identified and there's not actually a contaminate
level determined by the EPA, it was best for us to take those wells
out of service out of caution," Mullard said.
Seventy-nine other places around Illinois also had PFAS chemicals
in the water, Mullard said.
In Cary, two wells were closed, which Public Works Director Erik
Morimoto said share a common treatment facility.
"Because of the resiliency of our system, we were able to make up
for the lost production," Morimoto said. "The water is still
meeting and exceeding all the drink water requirements."
Mullard said they do not think the pollution is coming from a
single source.
"Probably the suspect is more of a general chemical," he said. "We
have no reason to believe there's a specific source. It's basically
kind of general presence in the water system."
Mullard explained chemicals can get into the water at their source
and PFAS chemicals were likely present near this water's source. He
said shallow wells like the one Lake in the Hills shut down tend to
have more contaminates in them.
The goal of getting legal representation is to explore how the
chemicals can be dealt with. Mullard said there are effective ways
to remove PFAS chemicals from the water, but it will likely require
them to make modifications to their system.
"That in turn will have increased operating expenses, and we're
trying to find a way to recoup those costs so we can keep water
prices at reasonable level for our residents," Mullard said.
Even with one well off, residents are not seeing any negative
impacts, Mullard said. The well system is designed to operate a
maximum demand when the largest well is out of service. Maximum
demand only happens a few days a year in the summer, and there were
no issues this past summer.
Water in both Lake in the Hills and Cary continues to be safe to
drink, the villages said.
It could be some time before the wells come back into service,
Morimoto said. Municipalities around the country are waiting on the
federal or state EPA to come up with standards for PFAS in water,
which is a process that takes several years.
It is possible the villages don't need to recover any costs if the
EPA's standards determine the water still is safe, Morimoto said.
Morimoto and Mullard said residents in both villages should not
expect any service disruptions or problems with their water while
they figure out the next steps to take with the contaminated wells.
[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 2022. All rights reserved. ISSN 1525-2272.
This material is copyrighted and any commercial use, resale or
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re-mailing and photocopying) is strictly prohibited without prior
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Information contained herein is obtained from sources believed to
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The CAR subscription rate is $775 for six months delivered via
e-mail. Additional e-mail subscriptions for members of the same
firm for the term of the initial subscription or balance thereof
are $25 each. For subscription information, contact
Peter A. Chapman at 215-945-7000.
*** End of Transmission ***