/raid1/www/Hosts/bankrupt/CAR_Public/220209.mbx
C L A S S A C T I O N R E P O R T E R
Wednesday, February 9, 2022, Vol. 24, No. 23
Headlines
13TH AVE KOSHER: Bermeo Suit Alleges Unpaid Wages for Bakery Staff
3M COMPANY: AFFF Products Contain Toxic Chemicals, Stolzar Claims
3M COMPANY: Bales Suit Alleges Complications From AFFF Products
3M COMPANY: Saffel Sues Over Exposure to PFAS From AFFF Products
3M COMPANY: Stepteaux Suit Claims Complications From AFFF Products
7-ELEVEN INC: Ali Sues Over Deceptive Sale of Juul E-Cigarettes
A&C PRIVATE: Shaw Seeks Unpaid Wages for Caregivers Under FLSA
ACCESS FUNDING: Court Reverses Arbitration Order in Linton Suit
ACCUTECH SYSTEMS: Breach Prompts Investigation Into Lawsuit
ADVANCE STORES: Fails to Pay Timely Wages, Birthwright Suit Says
ALBERTSONS COMPANIES: Gibson Files Suit in N.D. Illinois
ALLSTATE NORTHBROOK: Chavez Files Suit in S.D. New York
ANTHONY LOGISTICS: Faces Arriaga Wage-and-Hour Suit in D.N.J.
APPLE INC: Settles Class Action Over AppleCare Plan for $95MM
ASSESSOR OF NEW HYDE PARK: Ryke Files Suit in N.Y. Sup. Ct.
AUSTIN, TX: City Council Set to Approve Sexual Assault Settlement
B&G FOODS: Spices Contain Heavy Metals, Blassingame Suit Claims
BARRETT ROCHMAN: Motion to Dismiss Bid Rigging Suit Challenged
BASF CATALYSTS: Qualified Protective Order Entered in Williams Suit
BEAVERTON FOODS: Ortega Files ADA Suit in S.D. New York
BKSR LOGISTICS: Lewis FCRA Suit Removed to W.D. Missouri
BROTHER INTERNATIONAL: Konkel Sues Over Illegal Repair Restriction
CABLECOM LLC: Can Compel Arbitration in Kistler Suit, Court Rules
CALIFORNIA TEACHERS: Ninth Cir. Affirms Dismissal of Martin Suit
CALIFORNIA TEACHERS: Ninth Circuit Affirms Dismissal of Babb Suit
CAMPBELL SOUP: 'No MSG' Claims Misleading, Class Action Alleges
CAPSTONE LOGISTICS: Torres Labor Suit Removed to C.D. California
CARVANA LLC: Kaliher Wage-and-Hour Suit Goes to C.D. California
CEDAR-CREST SPECIALTIES: Ortega Files ADA Suit in S.D. New York
COLUMBUS REGIONAL: Faces ERISA Suit Over Investment Mismanagement
COMPETENTIA US: Underpays Commissioning Specialists, Cuello Says
COMPLIANCE DATA: Hernandez Sues Over Inaccurate Consumer Reports
CORE CIVIC: Bacon's Bid for Addresses, Class Action & Copies Denied
DAY & ZIMMERMANN: Fox Rothschild Attorney Discusses Court Ruling
DAY-LEE FOODS: Console & Associates Investigates Data Breach Suit
DENISON HEALTH: Faces Dutton Suit Over Unpaid Wages for Nurses
DESKTOP METAL: Faces Guzman-Martinez Suit Over Share Price Drop
EJ GLOBAL: Fraud Class Action Suit Dismissed Without Prejudice
EL BANDIDO RESTAURANT: Hernandez Seeks OT Wages Under FLSA, NYLL
ENHANCED VISION: Hanyzkiewicz Files ADA Suit in E.D. New York
ENVISION CREDIT UNION: Data Breach Prompts Probe Into Lawsuit
ESURANCE PROPERTY: E.D. Missouri Denies Bid to Dismiss Rawlins Suit
EWRIT FILINGS: Maryland Spec. App. Flips Dismissal of Williams Suit
FIRST SOLAR: Robbins Geller Reminds of March 8 Deadline
FLUOR CORP: Faces ERISA Class Action Over Breach of Fiduciary Duty
FROEDTERT HEALTH: Bid to Toss Bangalore Suit Denied W/o Prejudice
GENERAL MOTORS: Court Partly Grants Bid to Dismiss Hackler Suit
GENUINE DATA: Court Dismisses Jackson FCRA Suit Without Prejudice
GHIRARDELLI ASSOCIATES: Faces Tunkel FLSA Suit in N.D. California
GLOBAL SCAFFOLD: Merryman Labor Suit Removed to W.D. Pennsylvania
GOAUTO INSURANCE: Court Grants Turner's Bid to Remand Class Suit
GOOGLE LLC: Wants Copyright Claimant Kept in YouTube Class Action
GRAND CANYON UNIVERSITY: Class of Students Certified in Little Suit
GREENSPRING VILLAGE: Santiago Sues Over Wage-and-Hour Violations
H&M HENNES: Wingo's Suit Over Wage-&-Hour Laws Violations Stayed
HAIKU @ WP: Class of N.Y. Delivery Drivers Certified in Hong Suit
HEBREW ACADEMY: Barahona Sues Over Unpaid Wages, Discrimination
HELZBERG'S DIAMOND: Ybarra Labor Code Suit Removed to N.D. Cal.
HENKEL CORPORATION: Davis Suit Moved From S.D. Ohio to D. Conn.
HIGUERA FARMS: Morales-Garcia Seeks Review of Amended Judgment
HYATT CORPORATION: Vigil Wage-and-Hour Suit Removed to N.D. Cal.
ILLINOIS: Appellate Court Affirms Dismissal of Kristen B. v. DCFS
INSIGHT PRODUCTIONS: Ruling on Misclassification Suit Discussed
INTERNEWS NETWORK: Data Breach Prompts Investigation into Lawsuit
JAMES FINLAY: Kenyan Workers Win Right to Negligence Class Action
JUUL LABS: Alliance City Sues Over Deceptive E-Cigarette Youth Ads
JUUL LABS: Auburn Career Sues Over E-Cigarette Campaign to Youth
JUUL LABS: Brasher Falls Sues Over Youth's E-Cigarette Addiction
JUUL LABS: Burr Oak Sues Over Youth Health Crisis in Michigan
JUUL LABS: Cache County Sues Over Deceptive E-Cigarette Youth Ads
JUUL LABS: Causes Youth E-Cigarette Crisis, Hartford Suit Claims
JUUL LABS: Daggett School Sues Over Youth's E-Cigarette Addiction
JUUL LABS: Davis Sues Over Youth E-Cigarette Campaign in Utah
JUUL LABS: E-Cigarette Ads Target Youth, Cedar Springs Suit Says
JUUL LABS: E-Cigarette Ads Target Youth, Duchesne County Suit Says
JUUL LABS: E-Cigarette Triggers Youth Health Crisis, Paterson Says
JUUL LABS: Entices Youth to Buy E-Cigarette, Warren Suit Claims
JUUL LABS: Faces Edwards-Knox Suit Over Youth E-Cigarette Addiction
JUUL LABS: Faces Lake Forest Suit Over Youth E-Cigarette Campaign
JUUL LABS: Faces MSAD Suit Over Youth E-Cigarette Crisis in Maine
JUUL LABS: Hardeman County Sues Over Youth E-Cigarette Epidemic
JUUL LABS: Markets E-Cigarette to Youth, Bloomfield Central Claims
JUUL LABS: Newcomerstown Sues Over Deceptive E-Cigarette Campaign
JUUL LABS: Onondaga Central Sues Over E-Cigarette's Risks to Youth
JUUL LABS: Rankin Sues Over Youth's Nicotine Addiction in Miss.
JUUL LABS: St. Cloud Area School Sues Over Youth E-Cigarette Crisis
KNIGHT TRANSPORTATION: Can't Compel More Discovery in Sampson Suit
LENDINGCLUB CORP: Plaintiff Voluntarily Dismisses Class Action
LIFE CARE: Dahlstrom Suit Referred to Magistrate Judge Vaughan
LOS ANGELES, CA: Pleads Guilty in Probe of Botched Billing System
MED-CALL HEALTHCARE: Faces Bass Suit Over Unpaid Wages for Nurses
MORTON COUNTY, ND: Dundon Appeals Civil Rights Suit Dismissal
NATIONAL EDUCATION: Ninth Circuit Affirms Dismissal of Wilford Suit
NETWORK RECOVERY: Bucci Sues Over Illegal Debt Collection Practices
NEW YORK, NY: Faces Rivera Suit Over COVID-19 Vaccine Mandate
NORTON OUTDOOR: Denial of Shipps' Bid to Certify Class Affirmed
OHIO: Released From Ball v. DeWine Class Action
PARSHIP GMBH: Users Can Join Class Action Over Membership Fees
PAYPAL HOLDINGS: Website Launched in 'Moneymaker' Class Action
PELOTON INTERACTIVE: Reportedly Owes Workers Money for Unpaid Labor
PEPPERIDGE FARM: Judge Dismisses Consumer Fraud Class Action
PEPPERIDGE FARM: McMillan NJWPL Suit Removed to D. New Jersey
PRAIRIE COUNTY, AR: Jackson Suit Seeks OT Wages Under FLSA, AMWA
PRATT & WHITNEY: No-Poach Agreement Harms Engineers, Dominguez Says
QUAD/GRAPHICS INC: Bid to Toss Shaw Suit Denied Without Prejudice
REPUBLIC SERVICES: Class Action Seeks Trash Service Fee Refund
RHAPSODY INTERNATIONAL: Appeals Atty. Fee Bid Ruling in Lowery Suit
RJ REYNOLDS: Hit With $10-MM Verdict Over Bladder Cancer Case
ROULAND MANAGEMENT: Faces Suit Over Wrongful Used Association Dues
RUBY JEWEL: Ortega Files ADA Suit in S.D. New York
SAFE STREETS: E.D. North Carolina Closes Abramson Class Suit
SAN FRANCISCO HEALTH: Johnson Files Suit in Cal. Super. Ct.
SARAYA USA: Ortega Files ADA Suit in S.D. New York
SCIENTIFIC GAMES: Rider to Protective Order in Reed Suit Approved
SERENDIPITY BRANDS: Ortega Files ADA Suit in S.D. New York
SHANGHAI CITY CORP: Huang Reply to Class Cert Opposition Due Feb 18
SHAREFAX CREDIT: Class Certification Denial in Jones Suit Reversed
SHIN'S TRADING: Paguada Files ADA Suit in S.D. New York
SHIRE US: $1.8M Attys.' Fees, Costs Given in Intuniv Antitrust Suit
SKANSKA AB: Files Appeal in Pensacola Bay Bridge Lawsuit
SUAVS LLC: Paguada Files ADA Suit in S.D. New York
SUAVS LLC: Paguada Files ADA Suit in S.D. New York
TARGET CORPORATION: Maybaum Consumer Suit Goes to C.D. California
TITAN SENQUEST: Fails to Properly Pay Nurses, Howatae Suit Claims
TRIPAT LLC: Laufer Files ADA Suit in N.D. New York
TURNKEY MERCHANDISE: Ortega Files ADA Suit in S.D. New York
ULTA SALON: E.D. California Tosses Kabasele's 2nd Amended Complaint
UNCOMMON JAMES: Weekes Files ADA Suit in S.D. New York
UNITED STATES: Deadline to File Joint Report Extended
UNITED STATES: DOJ's Summary Judgment Bid in Majuc Suit Granted
UNITED STATES: Reconsideration Bid Denial Appealed in Joelson Case
UNITED STATES: Robert Appeals Mandatory Vaccine Suit Dismissal
UNIVERSITY OF MICHIGAN: 1,000+ Students Sexually Abused, Says Suit
USF REDDAWAY: Rodriguez Labor Suit Removed to E.D. California
VOLT MANAGEMENT: Ramirez Wage-and-Hour Suit Removed to E.D. Cal.
WEMAGINE.AI LLP: N.D. Illinois Dismisses Gutierrez BIPA Class Suit
WESTGATE PALACE: Steines Sues Over Financing Violations Under MLA
WHOLE FOODS: Loses Bid to Dismiss Franklin Discrimination Suit
WIDENER UNIVERSITY: E.D. Pennsylvania Tosses Brezinski Class Suit
WILLIAMS-SONOMA INC: Coats Sues Over Unpaid Wages for Retail Staff
WISDOM NATURAL: Ortega Files ADA Suit in S.D. New York
[*] Ky. BIPA Copycat Bill May Bring Several Class Action Lawsuits
[*] West Australian AG Raises Concerns Over Class Action Reforms
*********
13TH AVE KOSHER: Bermeo Suit Alleges Unpaid Wages for Bakery Staff
------------------------------------------------------------------
MARCO BERMEO, individually and on behalf of all others similarly
situated, Plaintiff v. 13TH AVE KOSHER BAKERY, INC. d/b/a TAAM EDEN
BAKERY and AVRAHAM SIGLER, Defendants, Case No. 1:22-cv-00564
(E.D.N.Y., January 31, 2022) is a class action against the
Defendants for violations of the Fair Labor Standards Act and the
New York Labor Law including failure to pay minimum wage, failure
to pay overtime wage, failure to pay spread-of-hours premium,
failure to provide accurate wage notice, and failure to provide
accurate wage statements.
The Plaintiff was employed by the Defendants as a non-exempt
employee from about 2016 to December 2021.
13th Ave Kosher Bakery, Inc., doing business as Taam Eden Bakery,
is an owner and operator of a retail bakery in New York. [BN]
The Plaintiff is represented by:
Peter A. Romero, Esq.
LAW OFFICE OF PETER A. ROMERO PLLC
490 Wheeler Road, Suite 250
Hauppauge, NY 11788
Telephone: (631) 257-5588
E-mail: promero@romerolawny.com
3M COMPANY: AFFF Products Contain Toxic Chemicals, Stolzar Claims
-----------------------------------------------------------------
SAMUEL GORDON STOLZAR, individually and on behalf of all others
similarly situated, Plaintiff v. 3M COMPANY f/k/a Minnesota Mining
and Manufacturing Company; ACG CHEMICALS AMERICAS INC.; AMEREX
CORPORATION; ARCHROMA U.S. INC.; ARKEMA, INC.; BUCKEYE FIRE
EQUIPMENT COMPANY; CARRIER GLOBAL CORPORATION; CHEMDESIGN PRODUCTS,
INC.; CHEMGUARD, INC.; CHEMICALS, INC.; CHEMOURS COMPANY FC, LLC;
CHUBB FIRE, LTD; CLARIANT CORP.; CORTEVA, INC.; DEEPWATER
CHEMICALS, INC.; DU PONT DE NEMOURS INC. f/k/a DOWDUPONT INC.;
DYNAX CORPORATION; E.I. DU PONT DE NEMOURS AND COMPANY;
KIDDE-FENWAL, INC.; KIDDE PLC; NATION FORD CHEMICAL COMPANY;
NATIONAL FOAM, INC.; THE CHEMOURS COMPANY; TYCO FIRE PRODUCTS LP,
as successor-in-interest to The Ansul Company; UNITED TECHNOLOGIES
CORPORATION; UTC FIRE & SECURITY AMERICAS CORPORATION, INC. f/k/a
GE Interlogix, Inc., Defendants, Case No. 2:22-cv-00322-RMG
(D.S.C., February 2, 2022) is a class action against the Defendants
for negligence, battery, inadequate warning, design defect, strict
liability, fraudulent concealment, breach of express and implied
warranties, and wantonness.
The case arises from severe personal injuries sustained by the
Plaintiff as a result of his alleged exposure to the Defendants'
aqueous film forming foam (AFFF) products containing synthetic,
toxic per- and polyfluoroalkyl substances collectively known as
PFAS. The Defendants failed to use reasonable and appropriate care
in the design, manufacture, labeling, warning, instruction,
training, selling, marketing, and distribution of their
PFAS-containing AFFF products and also failed to warn public
entities and firefighter trainees, including the Plaintiff, who
they knew would foreseeably come into contact with their AFFF
products that use of and/or exposure to the products would pose a
danger to human health. Due to inadequate warning, the Plaintiff
was exposed to toxic chemicals and was diagnosed with testicular
cancer, says the suit.
3M Company, f/k/a Minnesota Mining and Manufacturing Co., is a
multinational conglomerate corporation and designer, marketer,
developer, manufacturer, distributor of firefighting equipment,
including those with AFFF. It is located at 3M Center, St. Paul.
Minnesota.
ACG Chemicals Americas Inc. is a manufacturer of chemical products
based in Exton, Pennsylvania.
Amerex Corporation is a manufacturer of firefighting products based
in Trussville, Alabama.
Archroma U.S. Inc. is a global specialty chemicals company
headquartered in Charlotte, North Carolina.
Arkema, Inc. is a diversified chemicals manufacturer in North
America, based in King of Prussia, Pennsylvania.
Buckeye Fire Equipment Co. is a manufacturer of line of handheld
and wheeled fire extinguishers, suppressing foam concentrates &
hardware, and kitchen suppression systems, with principal place of
business located at 110 Kings Road, Mountain, North Carolina.
Carrier Global Corporation is a heating, ventilation, and air
conditioning company based in Palm Beach Gardens, Florida.
Chemdesign Products, Inc. is a chemical toll manufacturing company
based in Marinette, Wisconsin.
Chemguard, Inc. is a manufacturer of fire suppression and specialty
chemicals, including AFFF, with principal place of business located
at One Stanton Street, Marinette, Wisconsin.
Chemicals, Inc. is a chemical manufacturing company based in
Baytown, Texas.
Chemours Company FC, LLC is a manufacturer of titanium
technologies, fluoroproducts and chemical solutions based in
Wilmington, Delaware.
Chubb Fire, Ltd is a provider of security and fire protection
systems based in United Kingdom.
Clariant Corp. is a specialty chemical company based in Charlotte,
North Carolina.
Corteva, Inc. is an American agricultural chemical and seed company
based in Wilmington, Delaware.
Deepwater Chemicals, Inc. is a producer of organic and inorganic
iodine derivatives based in Woodward, Oklahoma.
Du Pont De Nemours Inc., f/k/a DowDuPont Inc., is a chemical
company based in Wilmington, Delaware.
Dynax Corporation is a company that specializes in the production
of fluorochemicals based in Pound Ridge, New York.
E.I Dupont De Nemours & Co. is a provider of agriculture and
specialty products with principal place of business at 1007 Market
Street, Wilmington, Delaware.
Kidde-Fenwal, Inc. is a manufacturer of fire protection systems
based in Ashland, Massachusetts.
Kidde PLC is a manufacturer of fire safety products based in
Mebane, North Carolina.
Nation Ford Chemical Company is a manufacturer of specialty organic
chemicals based in Fort Mill, South Carolina.
National Foam, Inc. is a manufacturer of foam concentrate, foam
proportioning systems, fixed and portable foam firefighting
equipment, with principal place of business located at 350 East
Union Street, West Chester, Pennsylvania.
The Chemours Company is a manufacturer of agricultural chemicals
with principal place of business at 1007 Market Street, Wilmington,
Delaware.
Tyco Fire Products L.P., successor-in-interest to The Ansul
Company, is a manufacturer of water-based fire suppression system
components and ancillary building construction products, including
Ansul brand of AFFF, headquartered at One Stanton Street,
Marinette, Wisconsin.
United Technologies Corporation was an American multinational
conglomerate headquartered in Farmington, Connecticut. It merged
with the Raytheon Company in April 2020 to form Raytheon
Technologies.
UTC Fire & Security Americas Corporation, Inc., f/k/a GE
Interlogix, Inc., is a manufacturer of security and fire control
systems based in Bradenton, Florida. [BN]
The Plaintiff is represented by:
Gregory A. Cade, Esq.
Gary A. Anderson, Esq.
Kevin B. McKie, Esq.
ENVIRONMENTAL LITIGATION GROUP, P.C.
2160 Highland Avenue South
Birmingham, AL 35205
Telephone: (205) 328-9200
Facsimile: (205) 328-9456
3M COMPANY: Bales Suit Alleges Complications From AFFF Products
---------------------------------------------------------------
NICHOLAS BALES, individually and on behalf of all others similarly
situated, Plaintiff v. 3M COMPANY f/k/a Minnesota Mining and
Manufacturing Company; ACG CHEMICALS AMERICAS INC.; AMEREX
CORPORATION; ARCHROMA U.S. INC.; ARKEMA, INC.; BUCKEYE FIRE
EQUIPMENT COMPANY; CARRIER GLOBAL CORPORATION; CHEMDESIGN PRODUCTS,
INC.; CHEMGUARD, INC.; CHEMICALS, INC.; CHEMOURS COMPANY FC, LLC;
CHUBB FIRE, LTD; CLARIANT CORP.; CORTEVA, INC.; DEEPWATER
CHEMICALS, INC.; DU PONT DE NEMOURS INC. f/k/a DOWDUPONT INC.;
DYNAX CORPORATION; E.I. DU PONT DE NEMOURS AND COMPANY;
KIDDE-FENWAL, INC.; KIDDE PLC; NATION FORD CHEMICAL COMPANY;
NATIONAL FOAM, INC.; THE CHEMOURS COMPANY; TYCO FIRE PRODUCTS LP,
as successor-in-interest to The Ansul Company; UNITED TECHNOLOGIES
CORPORATION; UTC FIRE & SECURITY AMERICAS CORPORATION, INC. f/k/a
GE Interlogix, Inc., Defendants, Case No. 2:22-cv-00295-RMG
(D.S.C., January 31, 2022) is a class action against the Defendants
for negligence, battery, inadequate warning, design defect, strict
liability, fraudulent concealment, breach of express and implied
warranties, and wantonness.
The case arises from severe personal injuries sustained by the
Plaintiff as a result of his alleged exposure to the Defendants'
aqueous film forming foam (AFFF) products containing synthetic,
toxic per- and polyfluoroalkyl substances collectively known as
PFAS. The Defendants failed to use reasonable and appropriate care
in the design, manufacture, labeling, warning, instruction,
training, selling, marketing, and distribution of their
PFAS-containing AFFF products and also failed to warn public
entities and firefighter trainees, including the Plaintiff, who
they knew would foreseeably come into contact with their AFFF
products that use of and/or exposure to the products would pose a
danger to human health. Due to inadequate warning, the Plaintiff
was exposed to toxic chemicals and was diagnosed with testicular
cancer, says the suit.
3M Company, f/k/a Minnesota Mining and Manufacturing Co., is a
multinational conglomerate corporation and designer, marketer,
developer, manufacturer, distributor of firefighting equipment,
including those with AFFF. It is located at 3M Center, St. Paul.
Minnesota.
ACG Chemicals Americas Inc. is a manufacturer of chemical products
based in Exton, Pennsylvania.
Amerex Corporation is a manufacturer of firefighting products based
in Trussville, Alabama.
Archroma U.S. Inc. is a global specialty chemicals company
headquartered in Charlotte, North Carolina.
Arkema, Inc. is a diversified chemicals manufacturer in North
America, based in King of Prussia, Pennsylvania.
Buckeye Fire Equipment Co. is a manufacturer of line of handheld
and wheeled fire extinguishers, suppressing foam concentrates &
hardware, and kitchen suppression systems, with principal place of
business located at 110 Kings Road, Mountain, North Carolina.
Carrier Global Corporation is a heating, ventilation, and air
conditioning company based in Palm Beach Gardens, Florida.
Chemdesign Products, Inc. is a chemical toll manufacturing company
based in Marinette, Wisconsin.
Chemguard, Inc. is a manufacturer of fire suppression and specialty
chemicals, including AFFF, with principal place of business located
at One Stanton Street, Marinette, Wisconsin.
Chemicals, Inc. is a chemical manufacturing company based in
Baytown, Texas.
Chemours Company FC, LLC is a manufacturer of titanium
technologies, fluoroproducts and chemical solutions based in
Wilmington, Delaware.
Chubb Fire, Ltd is a provider of security and fire protection
systems based in United Kingdom.
Clariant Corp. is a specialty chemical company based in Charlotte,
North Carolina.
Corteva, Inc. is an American agricultural chemical and seed company
based in Wilmington, Delaware.
Deepwater Chemicals, Inc. is a producer of organic and inorganic
iodine derivatives based in Woodward, Oklahoma.
Du Pont De Nemours Inc., f/k/a DowDuPont Inc., is a chemical
company based in Wilmington, Delaware.
Dynax Corporation is a company that specializes in the production
of fluorochemicals based in Pound Ridge, New York.
E.I Dupont De Nemours & Co. is a provider of agriculture and
specialty products with principal place of business at 1007 Market
Street, Wilmington, Delaware.
Kidde-Fenwal, Inc. is a manufacturer of fire protection systems
based in Ashland, Massachusetts.
Kidde PLC is a manufacturer of fire safety products based in
Mebane, North Carolina.
Nation Ford Chemical Company is a manufacturer of specialty organic
chemicals based in Fort Mill, South Carolina.
National Foam, Inc. is a manufacturer of foam concentrate, foam
proportioning systems, fixed and portable foam firefighting
equipment, with principal place of business located at 350 East
Union Street, West Chester, Pennsylvania.
The Chemours Company is a manufacturer of agricultural chemicals
with principal place of business at 1007 Market Street, Wilmington,
Delaware.
Tyco Fire Products L.P., successor-in-interest to The Ansul
Company, is a manufacturer of water-based fire suppression system
components and ancillary building construction products, including
Ansul brand of AFFF, headquartered at One Stanton Street,
Marinette, Wisconsin.
United Technologies Corporation was an American multinational
conglomerate headquartered in Farmington, Connecticut. It merged
with the Raytheon Company in April 2020 to form Raytheon
Technologies.
UTC Fire & Security Americas Corporation, Inc., f/k/a GE
Interlogix, Inc., is a manufacturer of security and fire control
systems based in Bradenton, Florida. [BN]
The Plaintiff is represented by:
Richard Zgoda, Jr., Esq.
Steven D. Gacovino, Esq.
GACOVINO, LAKE & ASSOCIATES, P.C.
270 West Main Street
Sayville, NY 11782
Telephone: (631) 600-0000
Facsimile: (631) 543-5450
- and –
Gregory A. Cade, Esq.
Gary A. Anderson, Esq.
Kevin B. McKie, Esq.
ENVIRONMENTAL LITIGATION GROUP, P.C.
2160 Highland Avenue South
Birmingham, AL 35205
Telephone: (205) 328-9200
Facsimile: (205) 328-9456
3M COMPANY: Saffel Sues Over Exposure to PFAS From AFFF Products
----------------------------------------------------------------
OSCAR SAFFEL, individually and on behalf of all others similarly
situated, Plaintiff v. 3M COMPANY f/k/a Minnesota Mining and
Manufacturing Company; ACG CHEMICALS AMERICAS INC.; AMEREX
CORPORATION; ARCHROMA U.S. INC.; ARKEMA, INC.; BUCKEYE FIRE
EQUIPMENT COMPANY; CARRIER GLOBAL CORPORATION; CHEMDESIGN PRODUCTS,
INC.; CHEMGUARD, INC.; CHEMICALS, INC.; CHEMOURS COMPANY FC, LLC;
CHUBB FIRE, LTD; CLARIANT CORP.; CORTEVA, INC.; DEEPWATER
CHEMICALS, INC.; DU PONT DE NEMOURS INC. f/k/a DOWDUPONT INC.;
DYNAX CORPORATION; E.I. DU PONT DE NEMOURS AND COMPANY;
KIDDE-FENWAL, INC.; KIDDE PLC; NATION FORD CHEMICAL COMPANY;
NATIONAL FOAM, INC.; THE CHEMOURS COMPANY; TYCO FIRE PRODUCTS LP,
as successor-in-interest to The Ansul Company; UNITED TECHNOLOGIES
CORPORATION; UTC FIRE & SECURITY AMERICAS CORPORATION, INC. f/k/a
GE Interlogix, Inc., Defendants, Case No. 2:22-cv-00330-RMG
(D.S.C., February 2, 2022) is a class action against the Defendants
for negligence, battery, inadequate warning, design defect, strict
liability, fraudulent concealment, breach of express and implied
warranties, and wantonness.
The case arises from severe personal injuries sustained by the
Plaintiff as a result of his exposure to the Defendants' aqueous
film forming foam (AFFF) products containing synthetic, toxic per-
and polyfluoroalkyl substances collectively known as PFAS. The
Defendants failed to use reasonable and appropriate care in the
design, manufacture, labeling, warning, instruction, training,
selling, marketing, and distribution of their PFAS-containing AFFF
products and also failed to warn public entities and firefighter
trainees, including the Plaintiff, who they knew would foreseeably
come into contact with their AFFF products that use of and/or
exposure to the products would pose a danger to human health. Due
to inadequate warning, the Plaintiff was exposed to toxic chemicals
and was diagnosed with prostate cancer, says the suit.
3M Company, f/k/a Minnesota Mining and Manufacturing Co., is a
multinational conglomerate corporation and designer, marketer,
developer, manufacturer, distributor of firefighting equipment,
including those with AFFF. It is located at 3M Center, St. Paul.
Minnesota.
ACG Chemicals Americas Inc. is a manufacturer of chemical products
based in Exton, Pennsylvania.
Amerex Corporation is a manufacturer of firefighting products based
in Trussville, Alabama.
Archroma U.S. Inc. is a global specialty chemicals company
headquartered in Charlotte, North Carolina.
Arkema, Inc. is a diversified chemicals manufacturer in North
America, based in King of Prussia, Pennsylvania.
Buckeye Fire Equipment Co. is a manufacturer of line of handheld
and wheeled fire extinguishers, suppressing foam concentrates &
hardware, and kitchen suppression systems, with principal place of
business located at 110 Kings Road, Mountain, North Carolina.
Carrier Global Corporation is a heating, ventilation, and air
conditioning company based in Palm Beach Gardens, Florida.
Chemdesign Products, Inc. is a chemical toll manufacturing company
based in Marinette, Wisconsin.
Chemguard, Inc. is a manufacturer of fire suppression and specialty
chemicals, including AFFF, with principal place of business located
at One Stanton Street, Marinette, Wisconsin.
Chemicals, Inc. is a chemical manufacturing company based in
Baytown, Texas.
Chemours Company FC, LLC is a manufacturer of titanium
technologies, fluoroproducts and chemical solutions based in
Wilmington, Delaware.
Chubb Fire, Ltd is a provider of security and fire protection
systems based in United Kingdom.
Clariant Corp. is a specialty chemical company based in Charlotte,
North Carolina.
Corteva, Inc. is an American agricultural chemical and seed company
based in Wilmington, Delaware.
Deepwater Chemicals, Inc. is a producer of organic and inorganic
iodine derivatives based in Woodward, Oklahoma.
Du Pont De Nemours Inc., f/k/a DowDuPont Inc., is a chemical
company based in Wilmington, Delaware.
Dynax Corporation is a company that specializes in the production
of fluorochemicals based in Pound Ridge, New York.
E.I Dupont De Nemours & Co. is a provider of agriculture and
specialty products with principal place of business at 1007 Market
Street, Wilmington, Delaware.
Kidde-Fenwal, Inc. is a manufacturer of fire protection systems
based in Ashland, Massachusetts.
Kidde PLC is a manufacturer of fire safety products based in
Mebane, North Carolina.
Nation Ford Chemical Company is a manufacturer of specialty organic
chemicals based in Fort Mill, South Carolina.
National Foam, Inc. is a manufacturer of foam concentrate, foam
proportioning systems, fixed and portable foam firefighting
equipment, with principal place of business located at 350 East
Union Street, West Chester, Pennsylvania.
The Chemours Company is a manufacturer of agricultural chemicals
with principal place of business at 1007 Market Street, Wilmington,
Delaware.
Tyco Fire Products L.P., successor-in-interest to The Ansul
Company, is a manufacturer of water-based fire suppression system
components and ancillary building construction products, including
Ansul brand of AFFF, headquartered at One Stanton Street,
Marinette, Wisconsin.
United Technologies Corporation was an American multinational
conglomerate headquartered in Farmington, Connecticut. It merged
with the Raytheon Company in April 2020 to form Raytheon
Technologies.
UTC Fire & Security Americas Corporation, Inc., f/k/a GE
Interlogix, Inc., is a manufacturer of security and fire control
systems based in Bradenton, Florida. [BN]
The Plaintiff is represented by:
Richard Zgoda, Jr., Esq.
Steven D. Gacovino, Esq.
GACOVINO, LAKE & ASSOCIATES, P.C.
270 West Main Street
Sayville, NY 11782
Telephone: (631) 600-0000
Facsimile: (631) 543-5450
- and –
Gregory A. Cade, Esq.
Gary A. Anderson, Esq.
Kevin B. McKie, Esq.
ENVIRONMENTAL LITIGATION GROUP, P.C.
2160 Highland Avenue South
Birmingham, AL 35205
Telephone: (205) 328-9200
Facsimile: (205) 328-9456
3M COMPANY: Stepteaux Suit Claims Complications From AFFF Products
------------------------------------------------------------------
ELLIOT STEPTEAUX, individually and on behalf of all others
similarly situated, Plaintiff v. 3M COMPANY f/k/a Minnesota Mining
and Manufacturing Company; ACG CHEMICALS AMERICAS INC.; AMEREX
CORPORATION; ARCHROMA U.S. INC.; ARKEMA, INC.; BUCKEYE FIRE
EQUIPMENT COMPANY; CARRIER GLOBAL CORPORATION; CHEMDESIGN PRODUCTS,
INC.; CHEMGUARD, INC.; CHEMICALS, INC.; CHEMOURS COMPANY FC, LLC;
CHUBB FIRE, LTD; CLARIANT CORP.; CORTEVA, INC.; DEEPWATER
CHEMICALS, INC.; DU PONT DE NEMOURS INC. f/k/a DOWDUPONT INC.;
DYNAX CORPORATION; E.I. DU PONT DE NEMOURS AND COMPANY;
KIDDE-FENWAL, INC.; KIDDE PLC; NATION FORD CHEMICAL COMPANY;
NATIONAL FOAM, INC.; THE CHEMOURS COMPANY; TYCO FIRE PRODUCTS LP,
as successor-in-interest to The Ansul Company; UNITED TECHNOLOGIES
CORPORATION; UTC FIRE & SECURITY AMERICAS CORPORATION, INC. f/k/a
GE Interlogix, Inc., Defendants, Case No. 2:22-cv-00327-RMG
(D.S.C., February 3, 2022) is a class action against the Defendants
for negligence, battery, inadequate warning, design defect, strict
liability, fraudulent concealment, breach of express and implied
warranties, and wantonness.
The case arises from severe personal injuries sustained by the
Plaintiff as a result of his exposure to the Defendants' aqueous
film forming foam (AFFF) products containing synthetic, toxic per-
and polyfluoroalkyl substances collectively known as PFAS. The
Defendants failed to use reasonable and appropriate care in the
design, manufacture, labeling, warning, instruction, training,
selling, marketing, and distribution of their PFAS-containing AFFF
products and also failed to warn public entities and firefighter
trainees, including the Plaintiff, who they knew would foreseeably
come into contact with their AFFF products that use of and/or
exposure to the products would pose a danger to human health. Due
to inadequate warning, the Plaintiff was exposed to toxic chemicals
and was diagnosed with prostate cancer, says the suit.
3M Company, f/k/a Minnesota Mining and Manufacturing Co., is a
multinational conglomerate corporation and designer, marketer,
developer, manufacturer, distributor of firefighting equipment,
including those with AFFF. It is located at 3M Center, St. Paul.
Minnesota.
ACG Chemicals Americas Inc. is a manufacturer of chemical products
based in Exton, Pennsylvania.
Amerex Corporation is a manufacturer of firefighting products based
in Trussville, Alabama.
Archroma U.S. Inc. is a global specialty chemicals company
headquartered in Charlotte, North Carolina.
Arkema, Inc. is a diversified chemicals manufacturer in North
America, based in King of Prussia, Pennsylvania.
Buckeye Fire Equipment Co. is a manufacturer of line of handheld
and wheeled fire extinguishers, suppressing foam concentrates &
hardware, and kitchen suppression systems, with principal place of
business located at 110 Kings Road, Mountain, North Carolina.
Carrier Global Corporation is a heating, ventilation, and air
conditioning company based in Palm Beach Gardens, Florida.
Chemdesign Products, Inc. is a chemical toll manufacturing company
based in Marinette, Wisconsin.
Chemguard, Inc. is a manufacturer of fire suppression and specialty
chemicals, including AFFF, with principal place of business located
at One Stanton Street, Marinette, Wisconsin.
Chemicals, Inc. is a chemical manufacturing company based in
Baytown, Texas.
Chemours Company FC, LLC is a manufacturer of titanium
technologies, fluoroproducts and chemical solutions based in
Wilmington, Delaware.
Chubb Fire, Ltd is a provider of security and fire protection
systems based in United Kingdom.
Clariant Corp. is a specialty chemical company based in Charlotte,
North Carolina.
Corteva, Inc. is an American agricultural chemical and seed company
based in Wilmington, Delaware.
Deepwater Chemicals, Inc. is a producer of organic and inorganic
iodine derivatives based in Woodward, Oklahoma.
Du Pont De Nemours Inc., f/k/a DowDuPont Inc., is a chemical
company based in Wilmington, Delaware.
Dynax Corporation is a company that specializes in the production
of fluorochemicals based in Pound Ridge, New York.
E.I Dupont De Nemours & Co. is a provider of agriculture and
specialty products with principal place of business at 1007 Market
Street, Wilmington, Delaware.
Kidde-Fenwal, Inc. is a manufacturer of fire protection systems
based in Ashland, Massachusetts.
Kidde PLC is a manufacturer of fire safety products based in
Mebane, North Carolina.
Nation Ford Chemical Company is a manufacturer of specialty organic
chemicals based in Fort Mill, South Carolina.
National Foam, Inc. is a manufacturer of foam concentrate, foam
proportioning systems, fixed and portable foam firefighting
equipment, with principal place of business located at 350 East
Union Street, West Chester, Pennsylvania.
The Chemours Company is a manufacturer of agricultural chemicals
with principal place of business at 1007 Market Street, Wilmington,
Delaware.
Tyco Fire Products L.P., successor-in-interest to The Ansul
Company, is a manufacturer of water-based fire suppression system
components and ancillary building construction products, including
Ansul brand of AFFF, headquartered at One Stanton Street,
Marinette, Wisconsin.
United Technologies Corporation was an American multinational
conglomerate headquartered in Farmington, Connecticut. It merged
with the Raytheon Company in April 2020 to form Raytheon
Technologies.
UTC Fire & Security Americas Corporation, Inc., f/k/a GE
Interlogix, Inc., is a manufacturer of security and fire control
systems based in Bradenton, Florida. [BN]
The Plaintiff is represented by:
Richard Zgoda, Jr., Esq.
Steven D. Gacovino, Esq.
GACOVINO, LAKE & ASSOCIATES, P.C.
270 West Main Street
Sayville, NY 11782
Telephone: (631) 600-0000
Facsimile: (631) 543-5450
- and –
Gregory A. Cade, Esq.
Gary A. Anderson, Esq.
Kevin B. McKie, Esq.
ENVIRONMENTAL LITIGATION GROUP, P.C.
2160 Highland Avenue South
Birmingham, AL 35205
Telephone: (205) 328-9200
Facsimile: (205) 328-9456
7-ELEVEN INC: Ali Sues Over Deceptive Sale of Juul E-Cigarettes
---------------------------------------------------------------
CRISTIAN ALI, individually and on behalf of all others similarly
situated, Plaintiff v. 7-ELEVEN, INC., Defendant, Case No.
1:22-cv-20328 (S.D. Fla., January 31, 2022) is a class action
against the Defendants for negligent misrepresentation, breach of
implied warranty of merchantability, breach of implied warranty of
fitness for purpose, breach of Magnusom Moss Warranty Act, unjust
enrichment, and violations of the Florida Deceptive and Unfair
Trade Practices Act.
According to the complaint, the Defendant is engaged in false,
deceptive, and misleading advertising and marketing of JUUL
e-cigarettes. The Defendant allegedly provides no warning that the
products are far more potent and addictive than conventional
cigarettes. As a result, the Plaintiff has purchased products that
are unreasonably harmful and addictive and not as represented by
the Defendant.
7-Eleven, Inc. is an American chain of convenience stores, with its
headquarters in Dallas, Texas. [BN]
The Plaintiff is represented by:
Joel Oster, Esq.
LAW OFFICES OF HOWARD W. RUBINSTEIN
22052 W. 66th St., #192
Shawnee, KS 66226
Telephone: (913) 206-7575
E-mail: joel@joelosterlaw.com
- and –
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
A&C PRIVATE: Shaw Seeks Unpaid Wages for Caregivers Under FLSA
--------------------------------------------------------------
TISHA SHAW, on behalf of herself and on behalf of all others
similarly situated v. A&C PRIVATE HOME CARE, LLC, Case No.
1:22-cv-00422-CAP (N.D. Ga., Feb. 2, 2022) alleges that A&C Private
failed to pay the Plaintiff and its other domestic care workers
(a/k/a "Caregivers") overtime wages when they work more than 40
hours in a workweek as required by the Fair Labor Standards Act.
Allegedly, the Defendant paid Plaintiff and its Caregivers
"straight time" for all hours worked including hours worked over
forty in a workweek. The Defendant misclassified its Caregivers as
independent contractors, despite treating them as employees for all
purposes except for paying them overtime at the federally mandated
premium rate. As a result, the Defendant violates the overtime wage
provisions of the FLSA, the lawsuit says.
The Defendant also failed to pay Plaintiff and its other Caregivers
for all hours worked. Specifically, Defendant failed to pay
Plaintiff and its other Caregivers for the time spent driving
between clients’ homes, picking up supplies, travelling to and
from the office to submit required forms and paperwork, and other
company required duties as required by FLSA, the lawsuit adds.
The Plaintiff and the similarly situated workers she seeks to
represent, are current and former hourly paid Caregivers classified
as independent contractors who worked for Defendant for any work
week during the period of three years prior to the Court
conditionally certifying a collective action to the present ("the
Class Members").
The Plaintiff lives in the Northern District of Georgia. She was
employed by the Defendant from July 2021 to November 2021 as a
Caregiver.
A&C Private provides home care services to elderly and/or invalid
clients. To do that, Defendant employs a class of workers called
"Caregivers" who offer assistance to clients with one or more of
the following services: bathing, grooming, toileting,
transfer/ambulation, exercise regimens, medication administration,
feeding, meal preparation, cleaning, laundry, shopping and
escort.[BN]
The Plaintiff is represented by:
Charles R. Bridgers, Esq.
DELONG CALDWELL BRIDGERS
FITZPATRICK & BENJAMIN, LLC
101 Marietta Street, Suite 2650
Atlanta, GA 30303
Telephone: (404) 979-3150
Facsimile: (404) 979-3170
E-mail: charlesbridgers@dcbflegal.com
kevin.fitzpatrick@dcbflegal.com
ACCESS FUNDING: Court Reverses Arbitration Order in Linton Suit
---------------------------------------------------------------
In the case, CRYSTAL LINTON, ET AL. v. ACCESS FUNDING LLC, ET AL.,
Case No. 1398 (Md. Spec. App.), the Court of Special Appeals of
Maryland reversed the judgment of the Circuit Court for Baltimore
City granting the Defendants' renewed motions to compel
arbitration.
I. Introduction
Crystal Linton and Dimeca D. Johnson, and other putative class
members, had obtained structured settlements, and the resulting
stream of payments, after resolving their lead paint exposure
claims. Ms. Linton, Ms. Johnson, and the others ("Plaintiffs")
later signed Purchase and Sale Agreements that purported to
transfer their rights to those income streams to Access and/or
affiliated entities in exchange for discounted lump sum cash
payments.
Ms. Linton and Ms. Johnson filed the action in July 2016, alleging
claims of negligence, misrepresentation, fraud, and conspiracy in
connection with those Agreements. Ms. Linton and Ms. Johnson, on
behalf of a putative class of Plaintiffs, allege that the
Defendants conspired to convince them to transfer their structured
settlement annuity benefits to Access in exchange for unfairly
discounted lump sum payments.
The Agreements contained arbitration clauses, and the Defendants
filed petitions to compel arbitration in August 2016. But the
circuit court never ruled on that first round of petitions because
the parties undertook settlement negotiations. In or about March
2017, the Class Plaintiffs and the Defendants entered into a
settlement agreement that the Circuit Court for Baltimore City
approved on Feb. 9, 2018. The Court of Special Appeals reversed the
approval, and the Court of Appeals agreed, so the case was remanded
to the circuit court for further proceedings.
On remand, the Defendants filed renewed motions to compel
arbitration that the circuit court granted. Ms. Linton and Ms.
Johnson appealed.
II. Discussion
The arbitration clause at issue states expressly that it was "made
pursuant to a transaction involving interstate commerce and will be
governed by the Federal Arbitration Act," and the parties do not
dispute that our analysis begins with the Federal Arbitration Act
("FAA"), 9 U.S.C. Section 1, et seq., citing Holmes v. Coverall N.
Am., Inc., 336 Md. 534, 541 (1994) (stating that state courts "rely
on decisions interpreting the Federal Arbitration Act" in resolving
disputes over arbitration).
The parties' arguments in the case flow from a line of cases
originating with the United States Supreme Court's decision in
Prima Paint Corp. v. Flood & Conklin Mfg. Co., 388 U.S. 395 (1967),
and followed by the Court of Appeals in Holmes, 336 Md. at 546-47.
In Prima Paint, Flood & Conklin ("Flood") entered into an agreement
with Prima Paint that contained an arbitration clause. Later, Prima
Paint notified Flood that it believed Flood had breached the
agreement by representing fraudulently that it was solvent when in
fact it was insolvent. Prima Paint filed suit, Flood sought to
proceed to arbitration, and the trial court stayed the action
pending arbitration.
The Supreme Court held that because Prima Paint had not alleged
that Flood induced it fraudulently into the agreement to arbitrate
in particular, arbitration should proceed. It relied on Section 4
of the Federal Arbitration Act, which the Maryland Arbitration
Act's Section 3-207 mirrors, and which provides that upon being
satisfied that the formation of the arbitration agreement is not in
issue, the court will direct arbitration to proceed.
Relying on Prima Paint, the Court of Appeals disagreed and held
that the arbitration clause was valid and that the merits of the
dispute -- including the question of whether the contract as a
whole was void because of the franchisor's alleged fraud -- must be
submitted to the arbitrator. It reasoned that because arbitration
agreements are severable from the contracts that include them, they
are "enforceable independently from the contract as a whole."
The Defendants argue that the case is exactly like Prima Paint and
Holmes. They contend that the circuit court did not err in
compelling arbitration because the Plaintiffs do not allege that
the arbitration clause itself, and specifically, was obtained by
fraud but instead allege that the whole of the Purchase and Sale
Agreements were obtained by fraud.
The Plaintiffs analogize to Holmes and Prima Paint as well, but
from a different angle -- they argue that compelling arbitration
here is inconsistent with the holdings of those cases. In the first
instance, they note that they do allege that the arbitration clause
itself was obtained by fraud, and thus that the case falls within
the exception recognized in those cases. They point to Paragraph 81
of the Complaint, in which they allege that by referring Ms. Linton
and Ms. Johnson to Mr. Smith for independent professional advice,
Access sought to prevent them from fully understanding both the
general consequences of the transfer and the arbitration clause. To
the extent that Paragraph 81 does not allege facts to support
fraudulent inducement specifically as to the arbitration clause,
the Plaintiffs argue in the alternative that their general
allegations of fraud are sufficient.
The Court of Special Appeals opines that the Plaintiffs allege that
the Defendants interfered fraudulently with the court's statutory
obligation to find, as a condition of approving the transfers, that
a professional who was not affiliated with the Defendants provided
advice "concerning the legal, tax, and financial implications" of
the transfer, which necessarily include the implications of
agreeing to arbitrate. So just as Prima Paint did not apply in
Spahr v. Secco, it does not apply here, and the express language of
the arbitration clause conditioning the arbitration agreement on
the closing of the transaction reinforces that conclusion.
Compelling arbitration in the case effectively would allow the
Defendants to circumvent the court authorization process mandated
by the Structured Settlement Protection Act. Put another way,
allowing the dispute about the validity of the court's
authorization to be decided by the arbitrator would be the same as
allowing Access to avoid the court at the very stage in the process
where the General Assembly required the court's approval. Indeed,
the arbitration clause states expressly that it is not to be used
for that purpose: "This arbitration provision cannot be used to
bypass state and federal laws requiring court approval of this
transaction." And other courts have held that companies seeking to
avoid the statutorily-required court authorization process via
arbitration cannot do so.
III. Conclusion
For these reasons, the Court of Special Appeals reversed the
judgment of the Circuit Court for Baltimore City and remanded the
case for further proceedings consistent with its Opinion. The
Appellees will pay the costs.
A full-text copy of the Court's Jan. 26, 2022 Opinion is available
at https://tinyurl.com/3w8bpndn from Leagle.com.
ACCUTECH SYSTEMS: Breach Prompts Investigation Into Lawsuit
-----------------------------------------------------------
The law firm of Console & Associates, P.C. announced that it will
be investigating the recent Accutech Systems Corporation data
breach to determine what legal remedies, if any, will be available
to consumers affected by the breach. If it turns out that Accutech
Systems failed to adequately protect individuals' sensitive data
from unauthorized access, the company may be financially liable to
individuals whose information was compromised as a result of the
breach.
To learn more about this data breach, please visit
https://www.myinjuryattorney.com/data-breach-alert-accutech-systems-corporation/.
A data breach occurs when an unauthorized party gains access to a
company's computer networks and the consumer data these networks
contain. These security incidents often result from a person
hacking into a company's network to remove data or install harmful
software on the network.
While a data breach doesn't necessarily mean that the information
obtained will be used for criminal purposes, one of the most common
reasons hackers conduct cyberattacks is to obtain information that
can later be used to commit identity theft.
Often, the data accessed through a breach is either retained by the
party orchestrating the cyberattack or sold to another party. In
either case, there is no way to be sure what the party in
possession of the information plans to do with it, and affected
consumers are at an increased risk of experiencing identity theft
or other financial losses.
The investigation into the breach is ongoing, but this
cybersecurity incident raises serious concerns about the company's
efforts to safely store and maintain sensitive consumer data. If it
turns out that Accutech Systems has in some way mishandled or
failed to protect consumer data, affected parties may be eligible
for financial compensation through a data breach class action
lawsuit.
Attorney Richard Console explains, "It's easy to place all the
blame for a data breach on the person who hacks into an
organization's system; however, this ignores the legal and moral
obligation that these companies owe to customers. When someone
gives a company their business, they trust that the information in
the organization's possession will remain private-and out of the
hands of criminals. While protecting consumer data requires a
business to undergo some effort and expense, in our current
environment of widespread hacking, this is a cost of doing business
that all organizations must take seriously."
According to the Accutech Systems data privacy incident notice, the
company reported that it had experienced a data security event on
August 16, 2021. However, many details about the breach are not yet
known, including how the hacker may be intending to use the data
that was breached. Further investigation ultimately revealed that
the sensitive information of approximately 39,518 individuals was
compromised.
On January 28, 2022, the company sent out data breach notifications
to all affected parties, informing them of the breach and what they
can do to protect themselves. Those receiving a data breach letter
from Accutech Systems Corporation should take the following steps:
-- Carefully review the entire letter;
-- Retain a copy of the data breach notification letter;
-- Enroll in any free credit monitoring or identity fraud
protection service provided by the company involved in the security
incident;
-- Change all passwords and security questions to online accounts;
-- Frequently review all credit card and bank account statements
for any signs of fraud or unauthorized activity;
-- Monitor credit reports for any unexpected changes or signs of
identity theft;
-- Contact a credit bureau to request a temporary fraud alert; and
-- Notify all banks and credit card companies of the data breach.
Consumers can reach Console & Associates, P.C. through the firm's
website at https://www.myinjuryattorney.com/contact-us/.
Console & Associates P.C. is dedicated to protecting consumers'
privacy interests. The firm investigates all types of data
breaches, ransomware attacks, and other network intrusions to
determine the legal rights of consumers who trusted corporations
with their sensitive information. Learn more at
https://www.myinjuryattorney.com/consumer-privacy-data-breach-lawyers/.
[GN]
ADVANCE STORES: Fails to Pay Timely Wages, Birthwright Suit Says
----------------------------------------------------------------
HUGH BIRTHWRIGHT, individually and on behalf of all others
similarly situated, Plaintiff v. ADVANCE STORES COMPANY, INC. d/b/a
ADVANCE AUTO PARTS, Defendant, Case No. 2:22-cv-00593 (E.D.N.Y.,
February 1, 2022) is a class action against the Defendant for its
failure to pay timely wages in violation of the New York Labor
Law.
Mr. Birthwright was employed by Advance Auto Parts as an hourly
worker from December 14, 2021 through January 6, 2022.
Advance Stores Company, Inc., doing business as Advance Auto Parts,
is a company that retails and distributes automotive parts and
accessories, located at 5008 Airport Road, Roanoke, Virginia. [BN]
The Plaintiff is represented by:
Brian S. Schaffer, Esq.
Frank J. Mazzaferro, Esq.
FITAPELLI & SCHAFFER, LLP
28 Liberty Street, 30th Floor
New York, NY 10005
Telephone: (212) 300-0375
- and –
Raymond Nardo, Esq.
RAYMOND NARDO, P.C.
129 Third Street
Mineola, NY 11501
Telephone: (516)248-2121
ALBERTSONS COMPANIES: Gibson Files Suit in N.D. Illinois
--------------------------------------------------------
A class action lawsuit has been filed against Albertsons Companies,
Inc. The case is styled as Patricia Gibson, individually and on
behalf of all others similarly situated v. Albertsons Companies,
Inc., Case No. 1:22-cv-00642 (N.D. Ill., Feb. 4, 2022).
The nature of suit is stated as Other Fraud.
Albertsons Companies, Inc. -- https://www.albertsonscompanies.com/
-- is an American grocery company founded and headquartered in
Boise, Idaho.[BN]
The Plaintiff is represented by:
Jonas Jacobson, Esq.
DOVEL & LUNER, LLP
201 Santa Monica Blvd., Ste. 600
Santa Monica CA, CA 90401
Phone: (310) 656-7066
Email: jonas@dovel.com
ALLSTATE NORTHBROOK: Chavez Files Suit in S.D. New York
-------------------------------------------------------
A class action lawsuit has been filed against Allstate Northbrook
Indemnity Company. The case is styled as Minerva Chavez,
individually, and on behalf of all others similarly situated v.
Allstate Northbrook Indemnity Company, Case No.
3:22-cv-00166-AJB-AHG (S.D.N.Y., Feb. 4, 2022).
The nature of suit is stated as Other Contract.
Allstate Northbrook Indemnity Company -- https://www.allstate.com/
-- is an insurance company based in Northbrook, Illinois.[BN]
The Plaintiff is represented by:
Manfred P. Muecke, Esq.
MANFRED, APC
600 Broadway Avenue, Suite 700
San Diego, CA 92101
Phone: (619) 550-4005
Fax: (619) 550-4006
Email: mmuecke@manfredapc.com
- and -
Robert L. Schug, Esq.
NICHOLS KASTER PLLP
80 South Eighth Street
4700 IDS Center
Minneapolis, MN 55402
Phone: (612) 256-3200
Email: schug@nka.com
ANTHONY LOGISTICS: Faces Arriaga Wage-and-Hour Suit in D.N.J.
-------------------------------------------------------------
CARLOS ARRIAGA, individually and on behalf of all others similarly
situated, Plaintiff v. ANTHONY LOGISTICS OF HUDSON COUNTY LLC, 2SH
SERVICES LLC d/b/a ANTHONY LOGISTICS OF HUDSON COUNTY LLC, and
SANTOS HERNANDEZ, Defendants, Case No. 2:22-cv-00495 (D.N.J.,
February 1, 2022) is a class action against the Defendants for
violations of the Fair Labor Standards Act, the New Jersey Wage and
Hour Law, and the New Jersey Wage Payment Law including failure to
pay overtime wages, illegal pay deductions, failure to pay earned
wages, and failure to provide accurate wage notices.
The Plaintiff worked as a truck driver helper for the Defendants
from March 7, 2021 until December 24, 2021.
Anthony Logistics of Hudson County LLC is a freight shipping
trucking company, with its principal place of business located at
310 Division Ave., Belleville, New Jersey.
2SH Services LLC is a licensed and bonded freight shipping and
trucking company, with its principal place of business located at
310 Division Ave., Belleville, New Jersey. [BN]
The Plaintiff is represented by:
Jacob Aronauer, Esq.
THE LAW OFFICES OF JACOB ARONAUER
225 Broadway, 3rd Floor
New York, NY 10007
Telephone: (212) 323-6980
E-mail: jaronauer@aronauerlaw.com
APPLE INC: Settles Class Action Over AppleCare Plan for $95MM
-------------------------------------------------------------
Jesse Hollington, writing for iDROP News, reports that if you've
ever had your iPhone or iPad replaced under an AppleCare plan, you
could soon be eligible to receive a payout in a recently settled
class action lawsuit.
In 2019, a class-action suit was certified against Apple, alleging
that the company had used "inferior" products when replacing
devices through its AppleCare or AppleCare+ Protection Plans.
Specifically, the two plaintiffs in the lawsuit argued that Apple
had violated its Terms and Conditions for AppleCare by offering
refurbished devices as replacements for new ones.
The Apple Plans purport to provide consumers with new devices, when
in fact Apple sends consumers devices made of refurbished parts,
failing to uphold its promise of iPhone, iPad, and iPhone
replacements that are equivalent to new in performance and
reliability.
Replacement Device Class-Action Lawsuit
In the filing, the plaintiffs insist that "refurbished devices can
never be the equivalent of new in performance and reliability."
In essence, the lawsuit insisted that Apple should always offer
entirely new devices as AppleCare replacements -- that would be
devices that have never been used or sold previously, which are
made up of entirely new parts that have also never been used in
other devices.
Lawyers for the plaintiffs argued that this is deliberately
fraudulent behaviour on Apple's part, and that the company
illegally profits by charging premium prices for AppleCare+ based
on promises that it ultimately fails to deliver on. Customers sign
up for AppleCare+, the group says, with the expectation that they
will receive a brand-new device as a replacement when in reality
they only get an "inferior" refurbished unit.
The original lawsuit was actually launched in 2016, but in an
example of how slowly the wheels of justice turn, it didn't receive
class-action certification until 2019.
The class-action suit was seeking compensation equivalent to the
difference between "devices that work like new and the inferior
devices Apple provided class members."
Apple Settles
Even though the arguments in this case always seemed somewhat
specious -- Apple's "Certified Refurbished" devices are thoroughly
inspected, and given new batteries and new casings, and look and
function like new -- Apple ultimately chose to settle out of
court.
To be clear, Apple did try to get the case thrown out before it was
certified as a class action lawsuit, emphasizing that "equivalent
to new" in the AppleCare terms is not the same thing as "new,"
however those efforts failed, and Apple's lawyers must have decided
it wasn't worth continuing the fight.
It also took four mediation sessions last year for the lawyers to
come to terms on a settlement, but when the dust settled, Apple had
agreed to pay out $95 million, of which approximately $30 million
will be eaten up by administrative costs and fees for the lawyers
pursuing the case.
What's Next?
This settlement was approved last September, and now the class
action is preparing to begin the payouts, which are expected to
cover up to 25 percent of the plaintiff's damages, depending on how
many members end up participating in the class action.
The class includes anyone who purchased AppleCare Protection Plan
or AppleCare+ for an iPhone or iPad, either directly or through the
iPhone Upgrade Program, on or after July 20, 2012, and received a
remanufactured replacement iPhone or iPad on or before September
30, 2021.
You can find more information on the Replacement Device Lawsuit
page, where you can ask to be excluded, file an objection to the
settlement, or request to speak in court about the fairness of the
settlement.
There's one final fairness hearing scheduled for April 27, 2022,
during which both parties and any other members of the class will
be able to make final statements. Barring any surprises, however,
that's expected to be largely a formality. [GN]
ASSESSOR OF NEW HYDE PARK: Ryke Files Suit in N.Y. Sup. Ct.
-----------------------------------------------------------
A class action lawsuit has been filed against The Assessor of the
Village of New Hyde Park, et al. The case is styled as Karin Appel,
All other similarly situated Petitioners on the annexed SCHEDULE A,
Petitioner v. The Assessor of the Village of New Hyde Park, The
Board of Assessment Review of the Village of New Hyde Park,
Respondents, Case No. 601418/2022 (N.Y. Sup. Ct., Nassau Cty., Feb.
4, 2022).
The case type is stated as "SP-CPLR Article 78 (Body or Officer)."
New Hyde Park -- https://vnhp.org/ -- is a village in the Towns of
Hempstead and North Hempstead in Nassau County, on Long Island, in
New York, United States.[BN]
The Petitioner is represented by:
MAIDENBAUM & STERNBERG, LLP
132 Spruce St.
Cedarhurst, NY 11516-1915
AUSTIN, TX: City Council Set to Approve Sexual Assault Settlement
-----------------------------------------------------------------
Austin Sanders, writing for Austin Chronicle, reports that City
Council meets for the first time in 2022 today, Jan. 27, to take up
an 89-item agenda. Most of the business deals with renewing or
beginning routine contracts, but there are a few notable items
dealing with local law enforcement on the agenda.
First, Council is set to approve a settlement in the class action
filed in 2018 by eight survivors of sexual assault against the city
and the Austin Police Department, Travis County and the District
Attorney's Office, and other defendants. The lawsuit highlights
what the plaintiffs argue are systemic flaws that created a justice
system that routinely failed survivors and allowed sexual assault
offenders to "walk freely to rape again," according to the initial
complaint filed nearly four years ago.
Individual defendants include former police Chiefs Art Acevedo and
Brian Manley, former D.A.s Rosemary Lehmberg and Margaret Moore,
and Travis County Sheriff Sally Hernandez, the only one who remains
in office; Moore's successor, Jose Garza, has supported the
plaintiffs. The original federal class action was dismissed by U.S.
District Judge Lee Yeakel but was reinstated by the 5th U.S.
Circuit Court of Appeals.
Terms of the settlement are unclear at this stage, although they
will be paid through the city's Liability Reserve Fund, funded
annually to help settle claims against city departments. In June,
the Travis County Commissioners Court voted unanimously to
settle, paying a total of $580,000 in attorneys fees, damages to
the plaintiffs, and a $250,000 commitment to fund programs to
enhance the prosecution of sexual assault.
Meanwhile, a proposal that would create a City Marshal Office to
provide security at the Municipal Court has been postponed once
again - this time to Feb. 17. Following pushback from justice
advocates, Council postponed a vote in November to allow for the
City Manager's Office and Municipal Court to engage with community
stakeholders on what security should look like and if a new law
enforcement agency was needed. Currently, APD provides security at
the court alongside a privately contracted security firm. At the
time, the Municipal Court judges and clerk said that they preferred
to maintain the status quo but that this was the best option
available.
It appears not much engagement has happened yet. A number of
justice groups -- including the Texas Fair Defense Project, Austin
Justice Coalition, and the Texas Harm Reduction Alliance --
co-signed a Jan. 19 letter to Council demanding further
postponement. The letter praises efforts at increasing law
enforcement accountability through the Office of Police Oversight,
but the authors write that creating a new agency where "specific
training, trainers, and accountability measures are undefined"
could undermine those efforts.
At its Jan. 24 meeting, the Council-appointed Public Safety
Commission voted unanimously, with Commissioner Rebecca Bernhardt
absent, to recommend Council reject the the Marshal Office and
continue securing the Municipal Court with APD officers. [GN]
B&G FOODS: Spices Contain Heavy Metals, Blassingame Suit Claims
---------------------------------------------------------------
BRIAN BLASSINGAME, individually and on behalf of all others
similarly situated, Plaintiff v. B&G FOODS, INC., Defendant, Case
No. 5:22-cv-00640-VKD (N.D. Cal., January 31, 2022) is a class
action against the Defendant for breach of implied warranty of
merchantability, breach of implied warranty under the Song-Beverly
Act, unjust enrichment, and violations of the California Business &
Professions Code and the California Consumer Legal Remedies Act.
According to the complaint, the Defendant is engaged in deceptive
and misleading advertising, labeling, and marketing of its herbs
and spices sold under the brand names Spice Islands and Tone's. The
Defendant allegedly failed to disclose that its herbs and 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 products.
B&G Foods, Inc. is a manufacturer of spices and herbs, with its
headquarters in Parsippany, New Jersey. [BN]
The Plaintiff is represented by:
L. Timothy Fisher, Esq.
Sean L. Litteral, Esq.
BURSOR & FISHER, P.A.
1990 North California Blvd., Suite 940
Walnut Creek, CA 94596
Telephone: (925) 300-4455
Facsimile: (925) 407-2700
E-mail: ltfisher@bursor.com
slitteral@bursor.com
BARRETT ROCHMAN: Motion to Dismiss Bid Rigging Suit Challenged
--------------------------------------------------------------
Heather Isringhausen Gvillo, writing for Madison-St. Clair Record,
reprots that Collinsville attorney Steven Giacoletto argues that
because a special representative has not been appointed for the
estate of deceased tax buyer Barrett Rochman, he should not be
dismissed from a bid rigging class action alleging he participated
in a conspiracy with former Madison County Treasurer Fred Bathon.
"Defendant Barrett Rochman was a convicted felon who served prison
time for the exact same violations of the same statutory laws for
which he has been sued for in this civil action," Giacoletto wrote
in the response to the motion to dismiss filed on behalf of the
plaintiffs.
"Defendant Barrett Rochman has offered no reason in equity or
justice as to why this court should dismiss him from this civil
action, all to the extreme prejudice of the plaintiffs and innocent
victims of his criminal actions," he added.
Attorney Natalie Kussart of Sandberg Phoenix & von Gontard PC in
St. Louis filed the motion to dismiss on behalf of Rochman, who
died on Jan. 6, 2021.
Kussart wrote that a suggestion of death was filed Feb. 19, 2021.
The plaintiffs allegedly had 90 days to file a substitute of party
for Rochman, which would have been May 20. However, Kussart wrote
that they have failed to file a substitution.
"Plaintiffs have failed to meet their statutory requirement to
substitute parties for the decedent, and as such, this matter must
be dismissed as to Barrett Rochman," the motion states.
In his response to the motion, Giacoletto wrote that the plaintiffs
were not given notice of any personal representative being
appointed for Rochman's estate.
"It is not possible or practical for the plaintiffs to substitute a
party for Barrett Rochman when there has not been a personal
representative of the estate of Barrett Rochman appointed by any
court," he wrote.
He added that the plaintiffs cannot petition a court to probate
Rochman's estate because they do not have access to the necessary
information or documents. Further, it would be a conflict of
interest for them to petition the court to appoint a personal
representative when they are in direct conflict with each other.
"Last, if there has not been a personal representative appointed
for the estate of Barrett Rochman, then it is questionable how his
legal counsel may further represent a deceased party's interests in
this action, including the filing of the pending motion to
dismiss," Giacoletto wrote.
Rochman was named a defendant in the third amended class action
filed by attorney Nelson Mitton of St. Louis on Sept. 25, 2017. The
class alleges Bathon arranged for tax buyers to charge interest at
the maximum legal limit of 18 percent at auctions of delinquent
property taxes from 2005 to 2008.
The plaintiffs allege Bathon conspired with each tax purchaser
defendant to establish a "no trailing bid" policy, meaning the
process required one-time, simultaneous bidding. Rather than
allowing a series of bids, all bidders had to bid at once, with the
auctioneer accepting the lowest bid that was heard.
The defendants allegedly then made an agreement with Bathon to bid
the maximum of 18 percent in the simultaneous bidding.
Mitten wrote that Bathon used a seating chart to ensure that the
tax purchaser defendants would be recognized by the auctioneer and
the Madison County employees conducting the sales as the winning
bidders.
The plaintiffs allege auctioneer James Foley was supposed to
"foster competition in order to obtain the lowest penalty
percentage." However, Mitten wrote that he agreed to act in concert
with the conspiracy by accepting the bids at the maximum rate.
The plaintiffs allege that as the actions of the tax purchaser
defendants became evident, other purchasers also began bidding
higher than they otherwise would have.
"Because there was no or virtually no competitive bidding, the
bidding was rigged, prices were fixed, and almost every single
property was sold at the statutory maximum penalty percentage of
18%," Mitten wrote.
Then after Bathon resigned, every annual tax sale conducted has
resulted in an average penalty bid of less than 5 percent, the suit
states.
The plaintiffs allege that in return for rigging the tax sales,
Bathon received campaign contributions and support from tax
purchasers.
Bathon was charged in February 2013 with violating the Sherman
Antitrust Act. He pleaded guilty the same day. Defendants Scott
McLean, Barrett Rochman and Joe Vassen also entered guilty pleas to
federal antitrust charges in October 2013.
The complaint was originally filed on Feb. 13, 2013, and has gone
through years of litigating to determine which defendants are
proper. Madison County moved for dismissal as a defendant in the
original complaint, and the trial court dismissed counts for
conspiracy and respondeat superior for failure to state a cause of
action.
In response, two new class actions were filed in March 2013. The
plaintiffs in the original case then filed a consolidated amended
complaint on Feb. 24, 2014. A second amended complaint under the
theory of res judicata was filed on July 11, 2014.
Madison County was again dismissed as a defendant when the Fifth
District Appellate Court concluded that the plaintiffs could not
state a valid claim against the defendant. Fayette County Associate
Judge J. Marc Kelly then granted the plaintiffs' request to amend
their complaint to rejoin Madison County and former treasurer Kurt
Prenzler as defendants following Bathon's May 2017 deposition.
Prenzler currently serves as Madison County Board Chairman.
During his deposition, Bathon testified that numerous Madison
County officials knew of, and participated in, the alleged
conspiracy.
Madison County moved for dismissal again arguing that the complaint
is barred by the doctrine of res judicata, the doctrines of waiver
and collateral estoppel, and the statute of limitations. Kelly
granted the motion on May 22, 2020.
Claims against tax-buyer defendants and county officials remain
pending.
Several defendants filed motions for summary judgment in January
2019. A hearing had been set for Dec. 13, but the docket does not
yet reflect any rulings on those motions.
The defendants seeking summary judgment have made various
arguments, including allegations that the plaintiffs' claims are
barred by the statute of limitations and that several defendants
were not involved in a conspiracy with respect to sales of
delinquent property taxes in Madison County.
The plaintiffs responded by filing memorandums in opposition to the
defendants' motions for summary judgment, arguing that there is
"ample" evidence for the jury to find that the defendants agreed to
the collusion and participated in the conspiracy.
Madison County Circuit Court case number 13-L-276 [GN]
BASF CATALYSTS: Qualified Protective Order Entered in Williams Suit
-------------------------------------------------------------------
Magistrate Judge Andre M. Espinosa of the U.S. District Court for
the District of New Jersey granted the Lien Administrators' request
to enter a HIPPA Qualified Protective Order in the case, KIMBERLEE
WILLIAMS, et al., Plaintiffs v. BASF CATALYSTS LLC, et al.,
Defendants, Civil Action No. 11-01754-BRM-AME (D.N.J.).
The matter has been opened to the Court upon the Report and
Recommendation of the Honorable Marina Corodemus, J.S.C. (Retired),
whom the Court appointed as Special Master and Settlement Trustee
in the matter. Judge Espinosa has reviewed and considered the
Report and Recommendation; and for good cause shown, he adopts the
Special Master's findings and recommendation and enters the Order
the Court.
The Special Master/Settlement Trustee by prior order of the Court
has been assigned the responsibility to administer and carry out
the terms of the Parties' class action Settlement Agreement and
related Plan of Distribution (POD) which was approved by the Court
on Sept. 24, 2021.
Edgar C. Gentle, III, Esq., of Gentle, Turner, Sexton & Harbison,
LLC, has been duly appointed by the Court to serve as the Lien
Administrator with authority to execute the lien resolution
requirements and duties provided in the Settlement Agreement and
POD. The Lien Administrator has requested entry of a HIPPA
Qualified Protective Order in the matter to enable and facilitate
its fulfillment of the lien resolution duties relating to
Settlement Class Members who made claims to the Settlement Fund and
were awarded compensation under the POD.
In many instances there is not presently an estate open for a
deceased Settlement Class Member from which to obtain information
releases or authorizations.
In order to carry out and perform its duties and functions under
Section 7 of the POD, the Lien Administrator in particular has been
given: (1) the authority to act as agent for the benefit of all
Settlement Class Member Claimants and/or their respective
individually retained attorneys, the Settlement Fund, and the
Settlement Trustee for the sole and limited purposes of claim
and/or lien resolution; (2) the authority to provide to, receive
from, and disclose to/from Payers certain protected health
information ("PHI") and personal identifiable information ("PII")
related to Claimants in the action; (3) the authority to resolve
any and all potential recovery claims for medical items, services,
and/or prescription drugs with Governmental Payers, Medicaid
Program sponsors, and/or Other Payers/Providers, including all
private health plans whether insured or self-funded (collectively
"Payers") associated with the action; and (4) to provide to or
receive from Payers PHI, PII and potential recovery claim
information in acceptable data file formats and other electronic
means.
Judge Espinosa authorized the Lien Administrator to serve as the
exclusive agent of the Settlement Class Member Claimants in the
action, together with their respective individually retained
attorneys (if any), including any deceased Claimants' estates
and/or their heirs, for purposes of (1) medical payment claim
and/or lien identification, and (2) resolution of any and all
potential recovery claims for medical items, services, and/or
prescription drugs with Payers associated with any Settlement Fund
payments arising out of the action. In particular the Lien
Administrator is vested with the exclusive authority to administer
a process with CMS for the identification and resolution of
Medicaid fee-for-service reimbursement claims on behalf of all
settling Claimants who are or were Medicaid entitled.
The Lien Administrator is further authorized to and will serve as
the exclusive government medical payment claim and lien resolution
agent of the Settlement Class Member Claimants in the action,
including any deceased Claimants' estates and/or their heirs,
together with their respective individually retained attorneys (if
any), with respect to identification and resolution of any other
government medical payment liens. The Lien Administrator will
resolve any and all potential Medicaid fee-for-service claim(s)
related to settlements, judgments, awards, or other payments
associated with the action for those Claimants who are or were
Medicaid beneficiaries. Claimants have been informed in the Class
Action Notice that as such agent, the Lien Administrator has the
authority to act in such capacity for the benefit of all Claimants
to resolve any and all Medicaid reimbursement obligations,
consistent with federal law.
The Settlement Class Member Claimants have been informed in the
Class Notice that the Lien Administrator would be appointed to act
on their behalf and in the POD that as a condition of participation
in the settlement proceeds, each Claimant by participating in the
Settlement Fund distributions has agreed to the Lien
Administrator's protocols for global resolution which specify that
every settling Claimant is bound to the terms of a global
resolution of all Medicaid claims, and understands that certain
individual rights have been waived, including, but not limited to,
the right to seek a waiver, compromise, and/or appeal of Medicaid's
reimbursement claim.
With regard to Medicaid fee-for-service, the Lien Administrator
will provide CMS with a final and verified list of qualified
Medicaid enrolled beneficiaries. The list will be maintained by all
recipients as strictly confidential and be used solely for the
purposes of identifying and resolving medical payments liens.
The Lien Administrator is authorized to provide to, receive from,
and disclose to Payers lists of settling Claimants, and related
information, which identifies those Payers that have or may have
asserted against such Claimants a lien, claim, or right of
subrogation, indemnity, reimbursement, conditional or other
payments, or interest of any type for injury-related medical items,
services, and/or prescription drugs paid on their behalf. Any lists
or related information will be maintained by all recipients as
strictly confidential and be used solely for the purposes of
identifying and resolving medical payments liens as set forth.
The Lien Administrator is further authorized to perform all duties
and functions identified in the preceding paragraphs in the Order,
including but not limited to, identifying and resolving potential
recovery claims related to Claimants in the action for medical
items, services, and/or prescription drugs with all entities
defined as Payers by all means necessary, as determined by the Lien
Administrator including, but not limited to, en masse data
submissions with Payers designed to identify healthcare coverage
and related claims itemizations for Claimants, requesting
information from relevant parties and accessing internet-based
healthcare coverage information sources including, but not limited
to, mymedicare.gov.
Any information including any submissions provided to or received
from any Payer or the Lien Administrator, including but not limited
to PHI and PII, will be treated as made in the course of settlement
discussions between the Payer and the Lien Administrator, and will
be intended by the parties to be confidential and be protected by
all applicable state and federal privileges. The information is to
be used relating to the compensation payments be made to a Claimant
under the POD. The Lien Administrator and the Payors shall, on
their own initiative, individually and collectively take steps to
preserve the privileges set forth. Any Payor in receipt of a
subpoena or other request for confidential information including
any form of Discovery will provide a copy of such request to the
Lien Administrator. The Lien Administrator and the Payor will each
on its own initiative take appropriate steps to preserve the
privileges before all courts.
The Order will apply to the use of all information related to
Settling Claimants that the Lien Administrator creates, provides
to, receives from, and discloses to Payers that is or may be
protected under HIPAA and its amendments, or other applicable
federal or state law, including all Protected Health Information
and Personal Identifiable Information, as defined in 45 C.F.R.
Section 160.103. The Lien Administrator is specifically authorized
to provide to, receive from, and disclose to Payers lists of
Claimants and related information, in lieu of providing copies of
individual HIPAA authorizations and information on a
Claimant-by-Claimant basis.
Nothing within the Order will be deemed or construed to entitle any
party, third party or entity to seek information in the form of
Discovery. As used in the order "Discovery" means a request for any
information provided to or received from the Lien Administrator
pursuant to this Order or the POD in any form including subpoena or
FOIA. No provision of the Order will be cited in support of any
request for enforcement of a subpoena, Freedom of Information or
similar state law document request, or discovery request in any
proceeding.
Prior to providing or receiving any information, lists of Claimants
or lists of Settlement Class Members to or from any person, entity,
agency or third party administrator holding or handling potential
lien claims, the Lien Administrator will provide a copy of this
Order to such person, entity, agency or third party administrator
and obtain from it an acknowledgement that it has received, read
and agrees to be bound to and abide by the terms of the Order which
will be enforceable before the Court. The form of acknowledgement
will further obligate any recipient of such information or lists
from the Lien Administrator to promptly notify the Settlement
Trustee and Lien Administrator of any request received or any
subpoena served upon it seeking information or documents on
Claimants provided to or received from the Lien Administrator
pursuant to the Order.
A full-text copy of the Court's Jan. 28, 2022 Protective Order is
available at https://tinyurl.com/dh7uuphw from Leagle.com.
BEAVERTON FOODS: Ortega Files ADA Suit in S.D. New York
-------------------------------------------------------
A class action lawsuit has been filed against Beaverton Foods, Inc.
The case is styled as Juan Ortega, on behalf of himself and all
others similarly situated v. Beaverton Foods, Inc., Case No.
1:22-cv-00964 (S.D.N.Y., Feb. 3, 2022).
The lawsuit is brought over alleged violation of the Americans with
Disabilities Act.
Beaverton Foods -- https://www.beavertonfoods.com/ -- is the
largest specialty condiment manufacturer in the US.[BN]
The Plaintiff is represented by:
Joseph H. Mizrahi, Esq.
MIZRAHI & KROUB LLP
200 Vesey St, 24th Floor
New York, NY 11201
Phone: (212) 595-6200
Email: jmizrahi@mizrahikroub.com
BKSR LOGISTICS: Lewis FCRA Suit Removed to W.D. Missouri
--------------------------------------------------------
The case styled BRADLEY LEWIS, individually and on behalf of all
others similarly situated v. BKSR LOGISTICS LLC, Case No.
2116-CV26741, was removed from the Circuit Court of Jackson County,
Missouri, to the U.S. District Court for the Western District of
Missouri on February 2, 2022.
The Clerk of Court for the Western District of Missouri assigned
Case No. 4:22-cv-00072-SRB to the proceeding.
The case arises from the Defendant's alleged violation of the Fair
Credit Reporting Act.
BKSR Logistics LLC is a freight shipping and trucking company based
in Missouri. [BN]
The Defendant is represented by:
Justin M. Dean, Esq.
OGLETREE, DEAKINS, NASH, SMOAK & STEWART, P.C.
4520 Main Street, Suite 400
Kansas City, MO 64111
Telephone: (816) 471-1301
Facsimile: (816) 471-1303
E-mail: justin.dean@ogletree.com
BROTHER INTERNATIONAL: Konkel Sues Over Illegal Repair Restriction
------------------------------------------------------------------
BOB KONKEL, individually and on behalf of all others similarly
situated, Plaintiff v. BROTHER INTERNATIONAL CORPORATION and
BROTHER INDUSTRIES (U.S.A.), INC., Defendants, Case No.
3:22-cv-00479-ZNQ-LHG (D.N.J., January 31, 2022) is a class action
against the Defendants for unjust enrichment, fraud, fraudulent
omission, and violation of the Magnuson-Moss Warranty Act.
According to the complaint, the Defendants are engaged in false,
deceptive, and misleading advertising, labeling, and marketing of
consumer products, including printers, under the Brother brand
name. The consumer products' warranties include statements that
condition the continued validity of the warranty on the use of only
an authorized repair service and/or authorized replacement parts.
The unlawful repair restriction is not reasonably revealed to
consumers until after the point of sale. Had the Plaintiff been
aware of the unlawful repair restriction, he would not have
purchased the Defendants' printer, or would have paid significantly
less for it, says the suit.
Brother International Corporation is a manufacturer of consumer
products, with its principal place of business at 200 Crossing
Blvd., Bridgewater, New Jersey.
Brother Industries (U.S.A.), Inc. is a manufacturer of consumer
products, with its principal place of business at 7819 North
Brother Blvd., Bartlett, Tennessee. [BN]
The Plaintiff is represented by:
Andrew Obergfell, Esq.
Julian C. Diamond, Esq.
BURSOR & FISHER, P.A.
888 Seventh Ave, Third Floor
New York, NY 10019
Telephone: (646) 837-7150
Facsimile: (212) 989-9163
E-mail: aobergfell@bursor.com
jdiamond@bursor.com
- and –
Neal Deckant, Esq.
BURSOR & FISHER, P.A.
1990 North California Blvd., Suite 940
Walnut Creek, CA 94596
Telephone: (925) 300-4455
Facsimile: (925) 407-2700
E-mail: ndeckant@bursor.com
CABLECOM LLC: Can Compel Arbitration in Kistler Suit, Court Rules
-----------------------------------------------------------------
In the case, RYAN KISTLER, Plaintiff v. CABLECOM, LLC, et al.,
Defendants, Case No. 21-cv-08258-VC (N.D. Cal.), Judge Vince
Chhabria of the U.S. District Court for the Northern District of
California granted the Defendants' Motion to Compel Arbitration.
Courts faced with a motion to compel arbitration generally must
decide two issues: Whether the parties agreed to arbitrate and, if
so, whether the agreement covers their present dispute, citing
Chiron Corporation v. Ortho Diagnostic Systems, Inc., 207 F.3d
1126, 1130 (9th Cir. 2000).
The party seeking to compel arbitration "must prove the existence
of a valid agreement by a preponderance of the evidence."
Judge Chhabria finds that CableCom has met its burden. Its human
resources director declares that the company "adopted an
arbitration program" in December of 2018 and that, at the start of
2019, CableCom presented arbitration agreements to its current
employees, including the Plaintiff Kistler. The agreement covers
"any claims or disputes that the Company may have against You or
that You may have against the Company." A digitally scanned copy of
the paper agreement shows Kistler's signature beneath an
attestation that he has read and understands the agreement and that
he (and CableCom) are "agreeing to arbitrate claims covered by this
agreement." The signature is dated Jan. 15, 2019. CableCom has, on
this record, proven the existence of an agreement to arbitrate.
Mr. Kistler asserts that he does not "recall signing any agreement
to arbitrate my claims, including at any time in January 2019, when
I had already been employed for several months." But his
declaration does not change the outcome. Even if Kistler does not
remember signing the agreement, the scanned copy shows his
signature, which matches the signature that appears on the other
human resources documents Kistler completed upon starting at
CableCom. Absent a clearer indication that Kistler did not, in
fact, sign the contract, it remains more likely than not that the
parties agreed to arbitrate.
Mr. Kistler points to Ruiz v. Moss Brothers Auto Group, Inc., in
which a California court of appeals found that a company failed to
present enough evidence to infer that "the electronic signature" on
an arbitration agreement "was the act" of the plaintiff. 232
Cal.App.4th 836, 844 (Cal. Ct. App. 2014). But, Judge Chhabria
holds that that case focused on the perils and uncertainties
associated with electronic signatures, which could be placed absent
authorization were someone to gain access to a person's computer or
digital files. The agreement today involves a handwritten signature
-- one that matches the plaintiff's signature on other documents.
Kistler, in any event, does not challenge that his signature
appears on the arbitration agreement.
Nor did CableCom waive its ability to enforce the agreement.
Kistler argues that because CableCom failed to turn over Kistler's
signed arbitration agreement during initial discovery disclosures
in March 2021 -- and instead waited until November-- it thereby
waived its right to enforce the agreement. Waiver is the
"intentional relinquishment or abandonment of a known right or
privilege." Even if CableCom knew of Kistler's arbitration
agreement in March, it did not act "inconsistent" with that right.
CableCom's human resources director has explained that the company
neglected to turn over the agreement "solely due to an inadvertent
mistake." Kistler also fails to show how the company's delay
prejudiced him. CableCom has not, for instance, sought favorable
rulings from the Court during the interim period, and nothing in
the record suggests that its mistake created a hardship.
Mr. Kistler also argues that the agreement is unconscionable under
California law. But the agreement itself expressly delegates to an
arbitrator the "exclusive authority to resolve any dispute relating
to the unconscionability of this Agreement, including, but not
limited to any claim that all or any part of this Agreement is void
or voidable." "An agreement to arbitrate a gateway issue is simply
an additional, antecedent agreement the party seeking arbitration
asks the federal court to enforce." Where an agreement delegates
certain decisions to the arbitrator, "courts must first focus on
the enforceability of that specific provision, not the
enforceability of the arbitration agreement as a whole." Judge
Chhabria finds that Kistler does not argue that the delegation
provision itself is unconscionable, so it is for the arbitrator to
decide in the first instance whether his unconscionability
arguments about the rest of the agreement hold water.
That leaves the question whether to order arbitration on an
individual or classwide basis. The agreement provides a plain
answer: "The Company and I agree to bring any claim on an
individual basis." It expressly waives "any right for any dispute
to be brought, heard, decided or arbitrated as a class action."
Kistler contends that class arbitration bans are unconscionable.
But the ship on such arguments has sailed.
Based on the foregoing, Judge Chhabria granted the motion to compel
arbitration on an individual basis and dismissed the case without
prejudice.
A full-text copy of the Court's Jan. 26, 2022 Order is available at
https://tinyurl.com/yc8hs2v6 from Leagle.com.
CALIFORNIA TEACHERS: Ninth Cir. Affirms Dismissal of Martin Suit
----------------------------------------------------------------
In the case, MICHAEL MARTIN; et al., Plaintiffs-Appellants v.
CALIFORNIA TEACHERS ASSOCIATION, et al., Defendants-Appellees, Case
No. 19-55761 (9th Cir.), the U.S. Court of Appeals for the Ninth
Circuit affirmed the district court's judgment dismissing the
Plaintiffs' 42 U.S.C. Section 1983 putative class action.
Michael Martin, Lori Bonner, Phillip David Glick, and Kimberly
Jolie appeal from the district court's judgment dismissing their 42
U.S.C. Section 1983 putative class action alleging federal and
state law claims arising out of union membership dues paid to the
National Education Association of the United States, California
Teachers Association, and Riverside City Teachers Association
("Union Defendants").
The Ninth Circuit reviews de novo a dismissal for failure to state
a claim and for lack of subject matter jurisdiction. It finds that
the dismissal of the Plaintiffs' First Amendment claim for
retrospective monetary relief was proper because the deduction of
union membership dues arose from the private membership agreements
between the union Defendants and the Plaintiffs, and "private dues
agreements do not trigger state action and independent
constitutional scrutiny."
In addition, the Ninth Circuit finds that district court also
properly dismissed (i) Plaintiff Martin's claim challenging the
constitutionality of California Education Code Section 45060(a)
because Martin failed to allege facts sufficient to state a
plausible claim; (ii) the Plaintiffs' claims challenging the
constitutionality of California Government Code Section 3558
because they did not demonstrate that the statute is
unconstitutional on its face; (iii) the Plaintiffs' state law
claims because they failed to allege facts sufficient to state a
plausible claim; and (iv) the Plaintiffs' First Amendment claims
challenging the exclusive bargaining representation arrangement for
California public sector employees because they failed to allege
facts sufficient to state a plausible claim.
The Ninth Circuit does not consider matters not specifically and
distinctly raised and argued in the opening brief.
A full-text copy of the Court's Jan. 26, 2022 Memorandum is
available at https://tinyurl.com/msfu78cm from Leagle.com.
CALIFORNIA TEACHERS: Ninth Circuit Affirms Dismissal of Babb Suit
-----------------------------------------------------------------
In the case, GEORGIA BABB, et al., Plaintiffs-Appellants v.
CALIFORNIA TEACHERS ASSOCIATION, et al., Defendants-Appellees, and
ATTORNEY GENERAL FOR THE STATE OF CALIFORNIA,
Intervenor-Defendant-Appellee, Case No. 19-55692 (9th Cir.), the
U.S. Court of Appeals for the Ninth Circuit affirmed the district
court's judgment dismissing the Plaintiffs' 42 U.S.C. Section 1983
putative class action.
Georgia Babb, John J. Frangiamore, Jr., William Happ, Aaron
Holbrook, Michelle Pecanic-Lee, David Schmus, and Abram Van Der
Fluit appeal from the district court's judgment dismissing their 42
U.S.C. Section 1983 putative class action alleging a First
Amendment claim arising out of compulsory agency fees (also known
as fair share fees) paid to California Teachers Association, United
Teachers Los Angeles, and National Education Association.
The Ninth Circuit reviews de novo. The parties agree that the Ninth
Circuit's intervening decision in Danielson v. Inslee, 945 F.3d
1096 (9th Cir. 2019), controls the outcome of the appeal.
The Ninth Circuit holds that the district court properly dismissed
the Appellants' action because a public sector union can, as a
matter of law, "invoke an affirmative defense of good faith to
retrospective monetary liability under section 1983 for the agency
fees it collected" prior to the Supreme Court's decision in Janus
v. American Federation of State, County & Municipal Employees,
Council 31, 138 S.Ct. 2448, 2486 (2018).
The Ninth Circuit does not consider matters not specifically and
distinctly raised and argued in the opening brief.
The Appellees' motion for summary affirmance is denied as moot.
A full-text copy of the Court's Jan. 26, 2022 Memorandum is
available at https://tinyurl.com/2p8m2nmb from Leagle.com.
CAMPBELL SOUP: 'No MSG' Claims Misleading, Class Action Alleges
---------------------------------------------------------------
Corrado Rizzi reports that a proposed class action alleges the "No
MSG Added" claim that appears on the label of certain Campbell Soup
Co. products is false given certain ingredients, such as yeast
extract, actually contain monosodium glutamate.
The 26-page case in New York says that by prominently claiming that
its Swanson beef and chicken broths, soups and other foods contain
"no MSG" or "no added MSG," Campbell Soup Company has "misled
consumers about its products-and violated the consumer protection
laws of many states."
The lawsuit argues that although the labels of the Campbell's
products at issue include a disclaimer that states that a "small
amount of glutamate occurs naturally in yeast extract," a
reasonable consumer would not notice this qualifying language and
understands "no MSG added" to mean that no glutamates were added to
the food.
"The truth, however, is that the No MSG Products do contain
ingredients that contain free glutamates-including specifically
monosodium glutamate," the complaint says. "And indeed, Defendant
adds these ingredients to the No MSG Products specifically for the
purpose of giving the products an 'umami' taste. As a result,
Defendant's 'No MSG added' labels and representations are false and
misleading."
According to the complaint, glutamic acid, an amino acid used to
form proteins, and its salts are known as "free glutamates," which
provide an "umami" or savory taste to food. The suit explains that
umami taste "induces salivary secretion," known colloquially as a
"mouth-watering" sensation, and can improve the taste of food. The
use of free glutamates as flavor enhancers, though widespread, is
"highly controversial" given many researchers believe they can lead
to adverse health effects and exacerbate food allergies, the
lawsuit says.
"For all these reasons, many consumers-including Plaintiff-seek to
avoid foods that contain free glutamates," the suit reads.
Monosodium glutamate, the sodium salt form of glutamate, is the
most popular free glutamate added to prepared foods, the case
continues. The complaint says that consumers generally understand
the term "MSG" to mean any free glutamate, and because many wish to
avoid foods that contain the flavor enhancers, many prepared foods
are prominently labeled as "no MSG" and/or "no MSG added." Per the
case, MSG is "chemically indistinguishable" from free glutamate.
The "No MSG" Campbell Soup Co. products at issue contain added free
glutamates, the lawsuit alleges, pointing toward the inclusion of
yeast extract as the source of the MSG. The case stresses that the
glutamate-containing yeast extract is not necessarily an inherent
ingredient in the broths and soups at issue, but allegedly added by
Campbell Soup Co. for taste reasons.
The lawsuit looks to represent all persons in the United States who
bought a "No MSG" product made by Campbell Soup Co. during the
applicable statute of limitations period. [GN]
CAPSTONE LOGISTICS: Torres Labor Suit Removed to C.D. California
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The case styled CHRIS TORRES and TROUNG VANURIBE, individually and
on behalf of all others similarly situated v. CAPSTONE LOGISTICS,
LLC, Case No. CVRI2105859, was removed from the Superior Court of
the State of California, County of Riverside, to the U.S. District
Court for the Central District of California on February 3, 2022.
The Clerk of Court for the Central District of California assigned
Case No. 5:22-cv-00228-JWH-KK to the proceeding.
The case arises from the Defendant's alleged violations of the
California Labor Code and the California's Business and Professions
Code including unpaid overtime, unpaid meal period premiums, unpaid
rest period premiums, unpaid minimum wages, final wages not timely
paid, non-compliant wage statements, failure to keep requisite
payroll records, unreimbursed business expenses, and unfair
business practices.
Capstone Logistics, LLC is a third-party logistics company, with
its corporate headquarters in Peachtree Corners, Georgia. [BN]
The Defendant is represented by:
Gerald L. Maatman, Esq.
Jennifer A. Riley, Esq.
SEYFARTH SHAW LLP
233 S. Wacker Drive, 80th Floor
Chicago, IL 60606
Telephone: (312) 460-5000
Facsimile: (312) 460-7000
E-mail: gmaatman@seyfarth.com
jriley@seyfarth.com
- and –
Justin Curley, Esq.
Ian T. Long, Esq.
SEYFARTH SHAW LLP
560 Mission Street, 31st Floor
San Francisco, CA 94105
Telephone: (415) 397-2823
Facsimile: (415) 397-8549
E-mail: jcurley@seyfarth.com
itlong@seyfarth.com
CARVANA LLC: Kaliher Wage-and-Hour Suit Goes to C.D. California
---------------------------------------------------------------
The case styled EMMALEE KALIHER, individually and on behalf of all
others similarly situated v. CARVANA, LLC and DOES 1 to 100,
inclusive, Case No. CIVSB2129085, was removed from the Superior
Court of California for the County of San Bernardino to the U.S.
District Court for the Central District of California on February
3, 2022.
The Clerk of Court for the Central District of California assigned
Case No. 5:22-cv-00222-JGB-SHK to the proceeding.
The case arises from the Defendant's alleged violations of the
California Labor Code and the California's Business and Professions
Code including failure to pay minimum wages, failure to pay
overtime wages, failure to authorize or permit meal periods,
failure to authorize or permit rest periods, failure to timely pay
earned wages during employment, failure to provide accurate wage
statements, failure to timely pay wages due at separation of
employment, and unfair business practices.
Carvana, LLC is an online used car retailer based in Tempe,
Arizona. [BN]
The Defendant is represented by:
Rebecca Aragon, Esq.
LITTLER MENDELSON, P.C.
633 West 5th Street, 63rd Floor
Los Angeles, CA 90071
Telephone: (213) 443-4300
Facsimile: (213) 443-4299
E-mail: raragon@littler.com
- and –
James A. Becerra, Esq.
LITTLER MENDELSON, P.C.
2049 Century Park East, 5th Floor
Los Angeles, CA 90067
Telephone: (310) 553-0308
Facsimile: (310) 553-5583
E-mail: jbecerra@littler.com
CEDAR-CREST SPECIALTIES: Ortega Files ADA Suit in S.D. New York
---------------------------------------------------------------
A class action lawsuit has been filed against Cedar-Crest
Specialties, Inc. The case is styled as Juan Ortega, on behalf of
himself and all others similarly situated v. Cedar-Crest
Specialties, Inc., Case No. 1:22-cv-00965 (S.D.N.Y., Feb. 3,
2022).
The lawsuit is brought over alleged violation of the Americans with
Disabilities Act.
Cedar-Crest Specialties Inc. -- https://cedarcresticecream.com/ --
offers frozen food products. The Company provides ice creams and
dairy products.[BN]
The Plaintiff is represented by:
Joseph H. Mizrahi, Esq.
MIZRAHI & KROUB LLP
200 Vesey St, 24th Floor
New York, NY 11201
Phone: (212) 595-6200
Email: jmizrahi@mizrahikroub.com
COLUMBUS REGIONAL: Faces ERISA Suit Over Investment Mismanagement
-----------------------------------------------------------------
Rosie Manins, writing for Law360, reports that Columbus Regional
Healthcare System Inc. has lost its bid to dismiss a proposed class
action alleging it wasted about $4.6 million in employees'
retirement savings by mismanaging their investments, a day after
the U.S. Supreme Court issued an opinion in a similar case. [GN]
COMPETENTIA US: Underpays Commissioning Specialists, Cuello Says
----------------------------------------------------------------
MAXCIMINO CUELLO, JR., individually and on behalf of all others
similarly situated, Plaintiff v. COMPETENTIA US, INC., Defendant,
Case No. 4:22-cv-00322 (S.D. Tex., January 31, 2022) is a class
action against the Defendant for its failure to compensate the
Plaintiff and similarly situated workers overtime pay in excess of
40 hours in a workweek in violation of the Fair Labor Standards
Act.
Mr. Cuello worked for Competentia as a commissioning specialist in
Texas from February 2019 to May 2019.
Competentia US, Inc. is a provider of professional services in the
energy industry throughout the United States. [BN]
The Plaintiff is represented by:
Michael A. Josephson, Esq.
Andrew W. Dunlap, Esq.
Richard M. Schreiber, 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
rschreiber@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
COMPLIANCE DATA: Hernandez Sues Over Inaccurate Consumer Reports
----------------------------------------------------------------
ANA NUMIDIA HERNANDEZ, individually and on behalf of all others
similarly situated, Plaintiff v. COMPLIANCE DATA CENTRE, INC. and
EQUIFAX MORTGAGE SOLUTIONS, LLC, Defendants, Case No.
1:22-cv-00102-PTG-JFA (E.D. Va., January 31, 2022) is a class
action against the Defendants for defamation and violation of the
Fair Credit Reporting Act.
According to the complaint, the Defendants failed to follow
reasonable procedures to assure maximum possible accuracy in their
consumer reports because they matched consumers to the Office of
Foreign Assets Control (OFAC) Specially Designated National (SDN)
list based on only a partial name match. The Defendants' consumer
report flagged the Plaintiff as a potential SDN simply because she
has a similar name to someone on the SDN list. As a result, the
Plaintiff suffered real and actual harm and injury, alleges the
suit.
Compliance Data Centre, Inc. is a company that manages a vast
database of vital industry-specific information pulled from
government agencies, international organizations, and regulatory
authorities.
Equifax Mortgage Solutions, LLC is a consumer reporting agency.
[BN]
The Plaintiff is represented by:
Kristi Cahoon Kelly, Esq.
Andrew J. Guzzo, Esq.
Casey S. Nash, Esq.
J. Patrick McNichol, Esq.
KELLY GUZZO, PLC
3925 Chain Bridge, Suite 202
Fairfax, VA 22030
Telephone: (703) 424-7572
Facsimile: (703) 591-0167
E-mail: kkelly@kellyguzzo.com
aguzzo@kellyguzzo.com
casey@kellyguzzo.com
pat@kellyguzzo.com
- and –
Leonard A. Bennett, Esq.
Craig C. Marchiando, Esq.
Kevin A. Dillon, Esq.
CONSUMER LITIGATION ASSOCIATES, P.C.
763 J. Clyde Morris Blvd., Suite 1-A
Newport News, VA 23601
Telephone: (757) 930-3660
Facsimile: (757) 930-3662
E-mail: lenbennett@clalegal.com
craig@clalegal.com
kevin@clalegal.com
CORE CIVIC: Bacon's Bid for Addresses, Class Action & Copies Denied
-------------------------------------------------------------------
In the case, MICHAEL A. BACON, Plaintiff v. CORE CIVIC, et al.,
Defendants, Case No. 2:20-cv-00914-JAD-VCF (D. Nev.), Magistrate
Judge Cam Ferenbach of the U.S. District Court for the District of
Nevada denied without prejudice the Plaintiff's motion for
addresses, class action, and copies; and motion for docket sheets
and for copies.
Mr. Bacon filed a notice of appeal with the Ninth Circuit Court of
Appeals on Dec. 27, 2021.
Judge Ferencbach explains that the filing of a notice of appeal is
an event of jurisdictional significance -- it confers jurisdiction
on the court of appeals and divests the district court of its
control over those aspects of the case involved in the appeal." In
Dayton Indep. Sch. Dist. v. U.S. Mineral Prods. Co., 906 F.2d 1059,
1063 (5th Cir. 1990), when one aspect of a case is before the
appellate court on interlocutory review, the district court is
divested of jurisdiction over that aspect of the case. A district
court does not have the power to alter the status of the case as it
rests before the Court of Appeals.
Hence, the district court does not regain jurisdiction over those
issues until the court of appeals issues its mandate. After the
Ninth Circuit rules on the pending appeal, Bacon may seek leave to
file these motions. Accordingly, Judge Ferenbach denied without
prejudice Bacon's motions.
A full-text copy of the Court's Jan. 26, 2022 Order is available at
https://tinyurl.com/4w8arj6b from Leagle.com.
DAY & ZIMMERMANN: Fox Rothschild Attorney Discusses Court Ruling
----------------------------------------------------------------
Mark Tabakman, Esq., of Fox Rothschild LLP, in an article for JD
Supra, reports that there has, of late, been a lot of controversy
over whether workers who live outside a State where a FLSA class
action is being litigated can opt-in to that action. Different
Circuits have ruled differently on this crucial issue and now the
First Circuit has joined the controversy. In a split decision, the
First Circuit ruled that these workers are able to join the case.
This may well mean the Supreme Court will have to decide the
matter. The case is entitled Waters v. Day & Zimmermann NPS Inc.
and issued from the Court of Appeals for the First Circuit.
The Court rejected the employer's contention that it lacked
jurisdiction over "foreign" employees who sought to join. The Court
opined that "interpreting the FLSA to bar collective actions by
out-of-state employees would frustrate a collective action's two
key purposes: 1. enforcement (by preventing violations and letting
employees pool resources when seeking relief); and 2. efficiency
(by resolving common issues in a single action)."
In a strongly worded and lengthy (fifteen pages) dissent, Judge
Barron disagreed with the majority's decision to decide an
interlocutory appeal, asserting that the disagreement in the
Circuits split will have "seemingly wide-ranging effects on a slew
of cases that have nothing to do with the specific dispute at
hand."
This is an overtime case and, thus far, more than one-hundred
employees have joined. Some reside outside of Massachusetts. In
2019, the Company sought to dismiss for lack of jurisdiction,
relying on the Supreme Court holding in Bristol-Myers Squibb v.
Superior Court of California. In Bristol-Myers, the Court would not
allow people who lived outside of California to join the lawsuit
because they did not have a sufficient connection to that
jurisdiction. The trial court in Massachusetts rejected that
argument and the Company appealed.
The First Circuit affirmed. The Court observed that opt-in
plaintiffs joined a lawsuit when they signed the consent, whether
or not a trial judge grants conditional certification. The Court
noted that was separate and apart from a class action, which does
require certification. The Court also made the distinction that the
Bristol-Myers holding applied to out-of-state individuals who were
litigating their claims in State court, in a State they do not live
in, as opposed to these federal claims being litigated in a federal
court. There is now a split in the Circuits on this crucial issue.
The Takeaway
The dissent took the position that the majority decision was at
odds with other Circuits and noted that legal analysts have called
for a revision of the federal Rules of Civil Procedure to address
this issue. That Judge urged the majority to wait to see how the
litigation developed before making such a major decision at such an
early stage of the case. In any event, the matter is now ripe for
resolution by the US Supreme Court and management side and
plaintiff side lawyers will be eagerly waiting to see what that
Court ultimately does. If the Court sides with the majority of the
Circuits, employer advocates will be very happy.
Very happy . . . [GN]
DAY-LEE FOODS: Console & Associates Investigates Data Breach Suit
-----------------------------------------------------------------
Console & Associates, P.C. recently opened an investigation into
the recent Day-Lee Foods, Inc. data breach. The firm hopes to
determine what, if any, legal remedies those impacted by the breach
have against the company. If evidence emerges that Day-Lee Foods
was negligent in the maintenance of consumer data, the company may
be financially liable through a data breach class action lawsuit.
Data breaches have been a frequent news item in recent months.
However, few consumers understand the very real risks these data
security events present. A data breach occurs when an unauthorized
party gains access to a company's computer networks that contain
sensitive information about consumers. While there are many ways in
which hackers or other criminal actors can orchestrate a data
breach, they are often the result of a person hacking into a
company's network, either removing data or installing harmful
software on the network.
News of the Day Lee Foods data breach is very recent, and the
investigation is still in its early stages. However, the breach
raises legitimate concerns about Day Lee Foods' efforts to keep
consumer data safe from cybercriminals. If it turns out that
Day-Lee Foods failed to ensure adequate security measures designed
to protect consumer privacy, affected parties may be eligible for
financial compensation.
Attorney Richard Console explains, "It's easy to place all the
blame for a data breach on the person who hacks into an
organization's system; however, this ignores the legal and moral
obligation that these companies owe to customers. When someone
gives a company their business, they trust that the information in
the organization's possession will remain private—and out of the
hands of criminals. While protecting consumer data requires a
business to undergo some effort and expense, in our current
environment of widespread hacking, this is a cost of doing business
that all organizations must take seriously."
According to the most recent filings by Day-Lee Foods, Inc., on
January 7, 2021, the company reported that it experienced a data
security event. However, many details about the breach are not yet
known. The company has confirmed, however, that the affected
parties' Social Security numbers were compromised as a result of
the breach.
Subsequently, Day-Lee Foods, Inc. began sending out written notice
of the breach to all affected parties, describing what occurred and
informing employees on what they could do to protect themselves.
While Day-Lee Foods cannot confirm that any of the compromised data
was used by the unauthorized party, the company encourages those
who received a data breach letter to keep a lookout for any signs
of identity theft, fraud, or other unauthorized activity by closely
monitoring their online accounts and credit reports.
Those receiving a data breach letter from Day Lee Foods should take
the following steps to protect themselves:
-- Carefully review the letter sent by Day-Lee Foods;
-- Retain a copy of the data breach notification letter;
-- Enroll in the free credit monitoring service provided by Day-Lee
Foods;
-- Change all passwords and security questions to online accounts;
-- Frequently review all credit card and bank account statements
for any signs of fraud or unauthorized activity;
-- Monitor credit reports for any unexpected changes or signs of
identity theft;
-- Contact a credit bureau to request a temporary fraud alert; and
-- Notify all banks and credit card companies of the data breach.
To learn more about this data breach, please visit
https://www.myinjuryattorney.com/data-breach-alert-day-lee-foods-inc/.
Console & Associates P.C. is dedicated to protecting consumers'
privacy interests. The firm investigates all types of data
breaches, ransomware attacks and other network intrusions to
determine the legal rights of consumers who trusted corporations
with their sensitive information. Consumers can reach Console &
Associates, P.C. through the firm's website at
https://www.myinjuryattorney.com/consumer-privacy-data-breach-lawyers/.
Contact
8567785500 [GN]
DENISON HEALTH: Faces Dutton Suit Over Unpaid Wages for Nurses
--------------------------------------------------------------
HELENE DUTTON, individually and on behalf of all others similarly
situated, Plaintiff v. DENISON HEALTH CARE CENTER, LTD. CO. and
CANTEX HEALTHCARE CENTERS, LLC, Defendants, Case No.
4:22-cv-00072-ALM (E.D. Tex., January 31, 2022) is a class action
against the Defendants for unpaid minimum wages and overtime
compensation in violation of the Fair Labor Standards Act and
claims under Texas Admin Code and Texas Health and Safety Code.
The Plaintiff was employed by the Defendants as a nurse from August
2019 through August 2021.
Denison Health Care Center, Ltd. Co. is an operator of a skilled
nursing facility, with its physical business at 3515 South Park
Avenue, Denison, Texas.
Cantex Healthcare Centers, LLC is an operator of a skilled nursing
facility, headquartered in Texas. [BN]
The Plaintiff is represented by:
Josh Sanford, Esq.
SANFORD LAW FIRM, PLLC
Kirkpatrick Plaza
10800 Financial Centre Pkwy., Suite 510
Little Rock, AR 72211
Telephone: (800) 615-4946
Facsimile: (888) 787-2040
E-mail: josh@sanfordlawfirm.com
DESKTOP METAL: Faces Guzman-Martinez Suit Over Share Price Drop
---------------------------------------------------------------
OSCAR GUZMAN-MARTINEZ, individually and on behalf of all others
similarly situated v. DESKTOP METAL, INC., RIC FULOP, JAMES HALEY,
and ALI EL-SIBLANI, Case No. 1:22-cv-10173 (D. Mass., Feb. 2, 2022)
is a federal securities class action on behalf of all investors who
purchased or otherwise acquired Desktop Metal common stock between
February 17, 2021 and November 15, 2021, inclusive for violations
of Sections 10(b) and 20(a) of the Securities Exchange Act of
1934.
On February 16, 2021, the Company acquired EnvisionTEC, Inc. and
certain of its affiliates, a provider of volume production
photopolymer 3D printing solutions for end use parts.
On November 8, 2021, after the market closed, Desktop Metal
disclosed that it was conducting an internal investigation into
certain matters, including "manufacturing and product compliance
practices and procedures with respect to a subset of its
photopolymer equipment and materials at its EnvisionTec US LLC
facility." The Company also stated that the Chief Executive Officer
of EnvisionTec had resigned.
.
On this news, the Companies stock price fell $0.39 or 4%, to close
at $8.81 per share on November 9, 2021.
Then, on November 15, 2021, after the market closed, the Company
stated that it would notify the U.S. Food & Drug Administration
("FDA") of "compliance issues with certain shipments of
EnvisionTec's Flexcera dental resins and its PCA4000 curing box."
On this news, the Company's stock fell $1.19, or 15% to close at
$6.83 per share on November 16, 2021, on unusually heavy trading
volume.
During the Class Period, and unbeknownst to investors, Desktop
Metal allegedly made materially false and/or misleading statements
and/or failed to disclose material adverse facts about the
Company's business, operations, and prospects. Specifically,
Defendants failed to disclose that there were deficiencies in
EnvisionTEC's manufacturing and product compliance practices and
procedures, the suit says.
As a result of Defendants' alleged wrongful acts and omissions, and
the precipitous decline in the market value of the Company's
securities, the Plaintiff and other Class members have suffered
The Plaintiff purchased shares of the Company at artificially
inflated prices during the Class Period and has been damaged by
Company's alleged material misrepresentations and omissions of
material facts.
Desktop Metal purports to offer additive manufacturing, or 3D
printing technologies focused on the production of end use parts.
The Company claims to offer a portfolio of integrated 3D printing
manufacturing solutions for engineers, designers and manufacturers
comprised of hardware, software, materials and services. The
Individual Defendants are officers of the company.[BN]
The Plaintiff is represented by:
Jeffrey C. Block, Esq.
Jacob A. Walker, Esq.
BLOCK & LEVITON LLP
260 Franklin Street, Suite 1860
Boston, MA 02110
Telephone: (617) 398-5600
Facsimile: (617) 507-6020
E-mail: jeff@blockleviton.com
jake@blockleviton.com
EJ GLOBAL: Fraud Class Action Suit Dismissed Without Prejudice
--------------------------------------------------------------
pagesix.com reports that Erika Jayne can breathe a sigh of relief.
The "Real Housewives of Beverly Hills" star has been dismissed from
the embezzlement and fraud lawsuit against her estranged husband,
Tom Girardi.
"Pursuant to stipulation, plaintiff's claims against defendants EJ
Global LLC and Erika Girardi are dismissed without prejudice and
without costs," the Jan. 29 legal documents, obtained by Page Six,
read.
The ruling came one day after both parties agreed "dismissal is
appropriate," according to a separate filing, also obtained by Page
Six.
"I'd like to see Edelson and everyone else take the high road going
forward and not make accusations against Erika without evidence,"
Jayne's attorney, Evan Borges, said in a statement to Page Six.
"We want Edelson to get the most complete picture of the evidence
as possible, and have no issue with further investigation. But the
truth matters. Here, the truth is that Erika had no role in the
Lion Air dealings, actions, or inaction as between the attorneys
and their clients, and she never received any of the Lion Air
client settlement funds."
Borges noted that Edelson has the right to re-file against Jayne in
California but added her dismissal "from the federal lawsuit that
triggered bankruptcies of Girardi Keese and Tom Girardi is
extremely important."
The Bravolebrity, 50, and Girardi, 82, were sued in December 2020
by Edelson PC, a class-action firm, on behalf of a number of Boeing
plane crash victims for allegedly embezzling settlement funds meant
to help the victims of Lion Air Flight 610, per federal court
documents.
In the lawsuit, Jayne, who filed for divorce in November 2020, and
Girardi were accused of using the alleged "sham" divorce "to
fraudulently protect Tom's and Erika's money from those that seek
to collect on debts owed by Tom and his law firm GK."
The lawsuit also alleged Girardi used his clients' money to fund
his lavish lifestyle. The lawsuit cited Jayne's song "Exxpen$ive"
and her self-reported claims that it costs $40,000 a month for her
glam, as reasons for the need to embezzle the funds.
Jayne denied the allegations surrounding her "sham" divorce in an
episode of "RHOBH" that aired over the summer.
"Divorce is very painful and then having it called a sham is even
more painful," Jayne said in a confessional. "It took a lot of
courage to leave and it took two seconds for some ass-- to say it
was a sham and [for] everybody to believe it."
Earlier, the "Pretty Mess" author's attorney blasted reports that
Jayne knowingly received diamond earrings paid for by funds stolen
from Girardi's clients.
"First, Erika is completely innocent," Borges alleged in a court
filing exclusively obtained by Page Six.
"Not even the trustee alleges that Erika knew the source of funds
that her wealthy husband used to buy her a gift of earrings 15
years ago (which replaced a prior set of earrings bought years
prior to that)."
Despite her alleged ignorance, Jayne has agreed in a "showing of
good faith" to not sell or transfer the earrings pending an
investigation, per the court documents. [GN]
EL BANDIDO RESTAURANT: Hernandez Seeks OT Wages Under FLSA, NYLL
----------------------------------------------------------------
JOSE HERNANDEZ, on behalf of himself, individually, and on behalf
of all others similarly-situated v. EL BANDIDO RESTAURANT INC.,
d/b/a EL BANDIDO MEXICAN RESTAURANT & LOUNGE, and ESTATE OF
SANTIAGO M. TELLO, individually, and ANGELICA TELLO, individually,
Case No. 7:22-cv-00927 (S.D.N.Y., Feb. 2, 2022) is a civil action
for damages and other redress based upon willful violations that
Defendants committed of Plaintiff's rights guaranteed to him by the
overtime provisions of the Fair Labor Standards Act and the New
York Labor Law.
Specifically, throughout that time, the Defendants routinely
required Plaintiff to work, and Plaintiff did work, in excess of 40
hours per week, but Defendants failed to pay Plaintiff at the
statutorily-required overtime rate for those hours, and instead
paid Plaintiff at his regular rate of pay, which fell below the
NYLL's minimum wage rate, for all hours worked, the lawsuit says.
The Plaintiff worked for Defendants from 1996 to December 13, 2020,
working as a waiter from 2001 until the end of his employment.
The Defendants operate a Rockland County-based restaurant.[BN]
The Plaintiff is represented by:
Danielle Petretta, Esq.
Alexander T. Coleman, Esq.
Michael J. Borrelli, Esq.
BORRELLI & ASSOCIATES, P.L.L.C.
910 Franklin Avenue, Suite 200
Garden City, NY 11530
Telephone: (516) 248-5550
Facsimile: (516) 248-6027
ENHANCED VISION: Hanyzkiewicz Files ADA Suit in E.D. New York
-------------------------------------------------------------
A class action lawsuit has been filed against Enhanced Vision
Systems, Inc. The case is styled as Marta Hanyzkiewicz, on behalf
of herself and all others similarly situated v. Enhanced Vision
Systems, Inc., Case No. 1:22-cv-00639 (E.D.N.Y., Feb. 3, 2022).
The lawsuit is brought over alleged violation of the Americans with
Disabilities Act.
Enhanced Vision -- https://www.enhancedvision.com/ -- is a
manufacturer of low vision products to assist with low vision
conditions like Macular Degeneration and other visual
impairments.[BN]
The Plaintiff is represented by:
Mark Rozenberg, Esq.
STEIN SAKS, PLLC
One University Plaza, Ste. 620
285 Passaic Street
Hackensack, NJ 07601
Phone: (201) 282-6500
Email: mrozenberg@steinsakslegal.com
ENVISION CREDIT UNION: Data Breach Prompts Probe Into Lawsuit
-------------------------------------------------------------
The law firm of Console & Associates, P.C. announced that it will
be investigating the recent Envision Credit Union data breach to
determine what legal remedies, if any, will be available to
consumers affected by the breach. If it turns out that Envision
failed to adequately protect individuals' sensitive data from
unauthorized access, the company may be financially liable to
individuals whose information was compromised as a result of the
breach.
A data breach occurs when an unauthorized party gains access to a
company's computer networks and the consumer data these networks
contain. These security incidents often result from a person
hacking into a company's network to remove data or install harmful
software on the network.
While a data breach doesn't necessarily mean that the information
obtained will be used for criminal purposes, one of the most common
reasons hackers conduct cyberattacks is to obtain information that
can later be used to commit identity theft.
Often, the data accessed through a breach is either retained by the
party orchestrating the cyberattack or sold to another party. In
either case, there is no way to be sure what the party in
possession of the information plans to do with it, and affected
consumers are at an increased risk of experiencing identity theft
or other financial losses.
The investigation into the breach is ongoing, but this
cybersecurity incident raises serious concerns about the company's
efforts to safely store and maintain sensitive consumer data. If it
turns out that Envision Credit Union has in some way mishandled or
failed to protect consumer data, affected parties may be eligible
for financial compensation through a data breach class action
lawsuit.
Attorney Richard Console explains, "It's easy to place all the
blame for a data breach on the person who hacks into an
organization's system; however, this ignores the legal and moral
obligation that these companies owe to customers. When someone
gives a company their business, they trust that the information in
the organization's possession will remain private-and out of the
hands of criminals. While protecting consumer data requires a
business to undergo some effort and expense, in our current
environment of widespread hacking, this is a cost of doing business
that all organizations must take seriously."
According to Envision Credit Union's data privacy incident notice,
the company reported that it had experienced a data security event
in August 2021. However, many details about the breach are not yet
known, including how the hacker may be intending to use the data
that was breached. Further investigation ultimately revealed that
the sensitive information of approximately 55,694 individuals was
compromised.
The notice states that the compromised information may have
included individuals':
Social Security number
Financial account information
Payment card information
Driver's license and/or state identification number
Passport number
Military identification number, and/or similar number issued on a
government document to verify identity
On January 28, 2022, the company sent out data breach notifications
to all affected parties, informing them of the breach and what they
can do to protect themselves. Those receiving a data breach letter
from Envision Credit Union should take the following steps:
Carefully review the entire letter;
Retain a copy of the data breach notification letter;
Enroll in any free credit monitoring or identity fraud protection
service provided by the company involved in the security incident;
Change all passwords and security questions to online accounts;
Frequently review all credit card and bank account statements for
any signs of fraud or unauthorized activity;
Monitor credit reports for any unexpected changes or signs of
identity theft;
Contact a credit bureau to request a temporary fraud alert; and
Notify all banks and credit card companies of the data breach.
Consumers can reach Console & Associates, P.C. through the firm's
website at https://www.myinjuryattorney.com/contact-us/.
Console & Associates P.C. is dedicated to protecting consumers'
privacy interests. The firm investigates all types of data
breaches, ransomware attacks, and other network intrusions to
determine the legal rights of consumers who trusted corporations
with their sensitive information. For more information, interested
parties may visit
https://www.myinjuryattorney.com/consumer-privacy-data-breach-lawyers/.
[GN]
ESURANCE PROPERTY: E.D. Missouri Denies Bid to Dismiss Rawlins Suit
-------------------------------------------------------------------
In the case, VICKIE RAWLINS, on behalf of herself and all others
similarly situated, Plaintiff v. ESURANCE PROPERTY AND CASUALTY
INSURANCE COMPANY, Defendant, Case No. 4:21-CV-660 RLW (E.D. Mo.),
Judge Ronnie L. White of the U.S. District Court for the Eastern
District of Missouri, Eastern Division, denied Esurance's motion to
dismiss for failure to state a claim.
I. Background
Ms. Rawlins brings the suit against Esurance for breach of an
insurance contract. She brings suit on behalf of herself and those
similarly situated.
On Feb. 12, 2021, the Plaintiff filed a Class Action Petition in
the Circuit Court of St. Louis County, Missouri. In her state court
petition, the Plaintiff alleges Esurance breached the terms of its
automobile insurance policy by failing to include sales tax when it
made a loss claim payment. According to the Complaint, Esurance
issued Plaintiff a Personal Auto Policy, which provided that in the
event the Plaintiff's covered vehicle sustained loss, Esurance
would pay for the loss "in money or repair or replace the damaged
or stolen property." The Complaint further alleges the Policy
provides that in the event Esurance pays for the loss in money, the
payment "will include the applicable sales tax for the damaged or
stolen property."
According to the Plaintiff, she insured a 2002 Toyota RAV4 under
the Policy. On March 30, 2016, the insured vehicle sustained loss
or damage. The Plaintiff filed a claim for property damage. She
alleges Esurance determined her vehicle to be a total loss.
According to the Complaint, Esurance determined the value of the
Plaintiff's 2002 Toyota RAV4 to be $5,788, and the applicable sales
tax on the adjusted vehicle to be $411.70. She alleges her
vehicle's valuation was calculated by a third-party vendor, CC
Information Services, Inc. The Plaintiff attached a copy of CC's
valuation report to the Complaint.
According to the Plaintiff, she was paid the "adjusted vehicle
value" of $5,788, plus $14 for fees, minus a $500 deductible, for a
total money payment of $5,302. Esurance did not include any sales
tax in its payment. The Plaintiff claims that by failing to include
sales tax in making payment for loss, Esurance breached its
contract with her. She brings one count against Defendant for
Breach of Contract.
The Plaintiff seeks to bring a putative class action against
Esurance. She asks that she be allowed to represent the following
class of insureds: "All Missouri insureds, under a policy issued by
Esurance covering a vehicle with private-passenger auto physical
damage coverage for comprehensive or collision loss, who, within
the applicable statute of limitations prior to the filing of this
lawsuit through the date of the certification Order, submitted a
first-party property damage claim determined by Esurance to
constitute a covered loss claim and where the loss claim payment
did not include sales tax."
Esurance removed the state action to this Court on the basis of
diversity jurisdiction, pursuant to 28 U.S.C. Sections 1332, 1441
and 1453. The Defendant did not file an answer to the Complaint,
but rather filed a motion to dismiss pursuant to Fed. R. Civ. P.
12(b)(6).
Esurance moves to dismiss based on the following arguments: (1)
under a Missouri statute, an insured never has to pay sales tax on
a replacement vehicle following a total loss; (2) the Plaintiff
lacks standing to sue because she does not allege she paid any
sales tax; (3) the Policy requires the Defendant to pay for loss,
not Actual Cash Value, which is a limit on liability and not a
contractual obligation; (4) even if the Policy required payment of
Actual Cash Value, sales tax would not be included in the loss
calculation.
II. Discussion
In moving for dismissal, Esurance argues the Plaintiff fails to
adequately allege that it breached the Policy, or that she was
damage by any such breach. Under its basic terms, the Policy
provides that if the insured pays the premium, Esurance agrees to
pay for loss to the covered vehicle. Next, Esurance argues the
Complaint fails to state a claim for breach of contract because the
Plaintiff did not suffer any damages, as the Complaint does not
allege that she paid any sales tax. It argues, because the
Plaintiff failed to allege that she paid tax on a replacement
vehicle, there was no "applicable sales tax," and she did not incur
any damages for which Esurance would be obligated to pay.
Esurance makes two further arguments for dismissal. First, Esurance
argues there is no Missouri statute or regulation that imposes an
independent obligation for an insurer to pay vehicle sales tax and,
in fact, there is a Missouri statute, Mo. Rev. Stat. Section
144.027, that enables an insured to receive a sales tax credit from
the Missouri Department of Revenue ("DOR"). Second, it maintains
the Plaintiff lacks standing in this case because she did not pay
any sales tax and, therefore, she did not suffer an injury.
In sum, Judge White finds the Complaint states a breach of contract
claim. The Complaint contains sufficient factual allegations that
Esurance breached the terms of the Policy, and the Plaintiff
suffered damages thereby. Judge White further finds Mo. Rev. Stat.
Section 144.027 does not apply, and the Plaintiff has standing to
sue, and that the Plaintiff adequately pleads an injury-in-fact.
For these reasons, the Defendant's Motion to Dismiss lacks merit.
III. Conclusion
In light of the foregoing, Judge White denied the Defendant's
Motion to Dismiss.
A full-text copy of the Court's Jan. 26, 2022 Memorandum & Order is
available at https://tinyurl.com/mub9awme from Leagle.com.
EWRIT FILINGS: Maryland Spec. App. Flips Dismissal of Williams Suit
-------------------------------------------------------------------
In the case, LESLIE WILLIAMS v. EWRIT FILINGS, LLC, Case No. 206,
September Term, 2021 (Md. Spec. App.), the Court of Special Appeals
of Maryland the judgment of the Circuit Court for Anne Arundel
County granting eWrit's motion to dismiss is reversed.
I. Introduction
From November 2017 through September 2018, Appellee eWrit filed
nine Failure to Pay Rent ("FTPR") actions against Appellant
Williams. On Aug. 26, 2020, Ms. Williams, as lead plaintiff, filed
a class action complaint against eWrit in the Circuit Court for
Anne Arundel County, alleging that eWrit unlawfully acted as a debt
collector by filing the FTPR actions without having first obtained
a debt collection license as required by Maryland law.
eWrit moved to dismiss the complaint, and the circuit court denied
eWrit's motion. eWrit then filed a motion for reconsideration,
which Ms. Williams opposed.
Following a hearing, the court granted eWrit's motion and dismissed
the complaint. Ms. Williams timely appealed and presents four
questions for the Court of Special Appeals' review, which it has
consolidated into one: Was eWrit required to have a debt collection
license in order to lawfully file FTPR actions?
II. Background
According to Ms. Williams's complaint, on Oct. 19, 2017, she
executed a written lease to rent an apartment in Glen Burnie,
Maryland. A company called Morgan Properties managed that property.
Because Ms. Williams failed to fully pay her rent on time, Morgan
Properties apparently hired eWrit to file FTPR actions against her.
eWrit filed these FTPR actions pursuant to Real Property Article
("RP") Section 8-401, which allows a landlord to initiate eviction
proceedings against a tenant who is late on her rent. Specifically,
eWrit filed FTPR actions against Ms. Williams for late rental
payments on Nov. 7, 2017; Dec. 8, 2017; Jan. 9, 2018; Feb. 8, 2018;
May 9, 2018; June 8, 2018; July 10, 2018; Aug. 8, 2018; and Sept.
7, 2018.
The Maryland Collection Agency Licensing Act ("MCALA") requires a
debt collection agency to first obtain a license before performing
debt collection activity within the State. eWrit did not obtain its
license, however, until April 3, 2018, meaning that it filed four
FTPR actions against Ms. Williams while not licensed as a
collection agency. Accordingly, Ms. Williams averred that eWrit's
FTPR actions filed on Nov. 7, 2017; Dec. 8, 2017; Jan. 9, 2018; and
Feb. 8, 2018 were illegal, and that the corresponding judgments
eWrit obtained against her were therefore unenforceable.
Pursuant to her interpretation of eWrit's conduct -- that filing
FTPR actions constitutes debt collection activity -- Ms. Williams,
as the lead plaintiff in a class action lawsuit, filed a four-count
complaint against eWrit. The first count alleged that eWrit
violated the Maryland Consumer Debt Collection Act ("MCDCA") by
performing debt collection activities without a debt collector
license in violation of Md. Code (1975, 2013 Repl. Vol., 2021
Supp.), Section 14-202(8) of the Commercial Law Article ("CL").
That code section prohibits a debt collector from attempting to
enforce a right "with knowledge that the right does not exist." The
second count alleged that eWrit violated the Maryland Consumer
Protection Act ("MCPA") by filing the FTPR actions without a debt
collection license, in violation of CL Section 13-301(1). That
section defines "unfair, abusive, or deceptive" trade practices to
include false or misleading statements or representations that have
the capacity or tendency to deceive or mislead consumers.
The third count requested a declaratory judgment that the judgments
eWrit obtained in its FTPR actions were unenforceable. The fourth
count sought attorneys' fees. Thus, all of Ms. Williams' causes of
action were predicated upon her belief that eWrit was required to
possess a debt collector license to legally file FTPR actions in
Maryland.
On Oct. 27, 2020, eWrit moved to dismiss and requested a hearing.
In eWrit's memorandum in support of its motion to dismiss, eWrit
argued, among other things, that it was not subject to the
licensure requirements found in the MCALA because it did not engage
in debt collection activity. Ms. Williams filed an opposition, and
on Nov. 19, 2020, the circuit court denied eWrit's motion without a
hearing.
On Dec. 2, 2020, eWrit filed a motion to reconsider and again
requested a hearing. A hearing was held before a different judge
than the one who originally denied eWrit's motion to dismiss. At
the conclusion of the hearing, the court granted eWrit's motion and
dismissed the complaint, and Ms. Williams timely appealed.
III. Discussion
The threshold issue in the case is whether eWrit, by simply filing
FTPR actions on behalf of another, performed debt collection
activity and therefore functioned as a debt collection agency for
purposes of the MCALA, MCDCA, and MCPA.
The Court of Special Appeals explains that the plain language of
the MCALA establishes that actions meant to collect consumer debt
for others, including FTPR actions, constitute debt collection
activity. Moreover, the relevant legislative history confirms its
plain language interpretation. Accordingly, eWrit was required to
be licensed as a debt collection agency to file the FTPR actions in
the case. The Court of Special Appeals will therefore reverse the
circuit court's grant of eWrit's motion to dismiss Ms. Williams'
complaint.
The Court of Special Appeals finds that the landlord's managing
agent, Morgan Properties, apparently hired eWrit to file FTPR
actions against Ms. Williams. As such, eWrit was engaged in the
business of collecting rents owed to others (landlords) arising out
of personal or household leases executed by Maryland resident
tenants. Accordingly, the legislative history materials confirm the
Court of Special Appeals' plain reading of the MCALA -- that eWrit
is a "collection agency," and was therefore required to be
licensed.
Despite the plain language of the MCALA and its legislative
history, eWrit argues that Md. Code (1973, 2020 Repl. Vol.),
Section 5-1201 et seq. of the Courts and Judicial Proceedings
Article ("CJP") clarify that filing FTPR actions on behalf of
others does not constitute debt collection activity. The Court of
Special Appeals construes CJP Section 5-1201 et seq. as making no
substantive changes to Maryland's debt collection licensure
requirements. It construes the exclusionary language in CJP Section
5-1201 as simply exempting rent collectors who file FTPR actions
from the new procedural requirements codified in CJP Section 5-1201
et seq.
In other words, entities filing FTPR actions on behalf of others
are not constrained by the statute of limitations provision in CJP
Section 5-1202, nor are they required to introduce into evidence
the numerous documents necessary to secure a debt collection
judgment pursuant to CJP Section 5-1203. But these entities must
still be licensed as debt collectors because CJP Section 5-1204
expressly provides that nothing in the subtitle should be construed
as modifying Maryland's licensure requirements.
This interpretation is consistent with the thrust of the Attorney
General's actions dating back to 1980. In 1980, the Attorney
General specifically determined that entities such as eWrit that
file actions for others based on delinquent rent are performing
debt collection activity and must be licensed. Indeed, it would
seem contradictory for the Attorney General's Office to propose a
bill in 2016 that was specifically designed to provide additional
protections for consumers, but would effectively vitiate its
longstanding interpretation that entities such as eWrit that
collect rent for others are required to be licensed. Accordingly,
the Court of Special Appeals rejects eWrit's argument that CJP
Section 5-1201 et seq. exempt eWrit from the MCALA's licensure
requirements.
IV. Conclusion
The Court of Special Appeals concludes that all of the counts in
Ms. Williams' complaint rely on the notion that eWrit conducted
debt collection activity by filing FTPR actions under RP Section
8-401 without the requisite debt collection license required by the
MCALA. Because the Court of Special Appeals concludes that eWrit's
actions did indeed constitute debt collection activity, eWrit was
required to possess a debt collection license, and the circuit
court erred in dismissing the complaint. Accordingly, it reversed.
Hence, the judgment of the Circuit Court for Anne Arundel County is
reversed and the case is remanded to that court for further
proceedings. The costs will be paid by the Appellee.
A full-text copy of the Court's Jan. 26, 2022 Opinion is available
at https://tinyurl.com/462mp8jt from Leagle.com.
FIRST SOLAR: Robbins Geller Reminds of March 8 Deadline
-------------------------------------------------------
Robbins Geller Rudman & Dowd LLP announces that purchasers of First
Solar, Inc. (NASDAQ: FSLR) common stock between February 22, 2019
and February 20, 2020, inclusive (the "Class Period") have until
March 8, 2022 to seek appointment as lead plaintiff in City of
Pontiac General Employees' Retirement System v. First Solar, Inc.,
No. 22-cv-00036 (D. Ariz.). Commenced on January 7, 2022, the First
Solar class action lawsuit charges First Solar as well as certain
of its top executives with violations of the Securities Exchange
Act of 1934.
If you suffered significant losses and wish to serve as lead
plaintiff of the First Solar class action lawsuit, please provide
your information by clicking here. You can also contact attorney
J.C. Sanchez of Robbins Geller by calling 800/449-4900 or via
e-mail at jsanchez@rgrdlaw.com. Lead plaintiff motions for the
First Solar class action lawsuit must be filed with the court no
later than March 8, 2022.
CASE ALLEGATIONS: First Solar is a manufacturer of solar energy
panels and powerplants.
The First Solar class action lawsuit arises from defendants'
alleged repeated misrepresentations to investors regarding the
development of its newest "Series 6" solar module, the cost per
unit it could achieve with that module, and the impact the
changeover to this new product would have on the viability of its
other business segments. In reality, First Solar knew or recklessly
disregarded that the Series 6 solar module was not commercially
ready at the time of its release, had a component that was failing
in the field and causing fires, was not able to hit its projected
and touted wattage targets, and had an inconsistent output -- all
of which put First Solar at a competitive disadvantage.
On January 15, 2020, Barclays reported that, among other things,
"First Solar ha[d] seemingly been, in large part, priced-out of the
U.S. downstream solar market," and that First Solar had concealed
its rapidly declining market share through misleading financial
reporting. According to analysts at Barclays, First Solar was
obfuscating this fact by improperly reporting its project
development pipeline to make it seem like First Solar maintained a
stronger market share, despite the fact that some projects on the
pipeline had been completed in prior years. On this news, the price
of First Solar stock fell nearly 7%.
Then, on February 6, 2020, Barclays issued another report and
suggested that, in an attempt to gain back its market share, First
Solar was "bidding more aggressively, leading to lower [project
development contract] prices, and finally cutting into margins." On
this news, the price of First Solar stock fell again.
Finally, on February 20, 2020, First Solar announced that it was
exploring a sale of its Project Development business. On the same
day, First Solar acknowledged it was experiencing "challenges with
regard to certain aspects of the overall cost per watt" and that
First Solar would not be realizing its cost per watt goals, despite
having previously represented that it had been "slightly ahead of"
its goals as recently as the previous quarter. Following this,
First Solar stated that it would no longer be disclosing a discrete
cost per watt for its Series 6 units. When asked by an industry
analyst to further explain the decision to no longer provide
discrete cost per watt data, First Solar executives claimed that
customers had "start[ed] to hold [First Solar] accountable to a
cost-plus model . . . [a]nd so we have purposely moved away from
giving discrete cost per watt." On this news, the price of First
Solar stock declined nearly 15%, further damaging investors.
THE LEAD PLAINTIFF PROCESS: The Private Securities Litigation
Reform Act of 1995 permits any investor who purchased First Solar
common stock during the Class Period to seek appointment as lead
plaintiff in the First Solar class action lawsuit. A lead plaintiff
is generally the movant with the greatest financial interest in the
relief sought by the putative class who is also typical and
adequate of the putative class. A lead plaintiff acts on behalf of
all other class members in directing the class action lawsuit. The
lead plaintiff can select a law firm of its choice to litigate the
class action lawsuit. An investor's ability to share in any
potential future recovery of the class action lawsuit is not
dependent upon serving as lead plaintiff.
About Robbins Geller
With 200 lawyers in 9 offices nationwide, Robbins Geller Rudman &
Dowd LLP is the largest U.S. law firm representing investors in
securities class actions. Robbins Geller attorneys have obtained
many of the largest shareholder recoveries in history, including
the largest securities class action recovery ever - $7.2 billion -
in In re Enron Corp. Sec. Litig. The 2020 ISS Securities Class
Action Services Top 50 Report ranked Robbins Geller first for
recovering $1.6 billion for investors that year, more than double
the amount recovered by any other securities plaintiffs' firm.
Please visit https://www.rgrdlaw.com for more information. [GN]
FLUOR CORP: Faces ERISA Class Action Over Breach of Fiduciary Duty
------------------------------------------------------------------
Noah Zuss, writing for PlanSponsor, reports that former employees
at the Fluor Corp. have filed a class action lawsuit against the
engineering company, its board of directors and its retirement plan
committee alleging Employee Retirement Income Security Act (ERISA)
breaches of fiduciary duty.
The plaintiffs claim that the defendants failed to fully disclose
the expenses and risk of the plan's investment options to
participants; allowed unreasonable expenses to be charged to
participants; and selected and retained high-cost and
poorly-performing investments when more prudent investments were
readily available.
The lawsuit says a plan of Fluor's size should have been able to
obtain reasonable rates for recordkeeping and administrative (RK&A)
services that were significantly lower than the per-participant
rates charged. According to the complaint the plan had 15,062
participants with account balances and assets totaling
approximately $3.45 billion, placing it in the top .1% of all
defined contribution plans by plan size, as of year-end 2020.
"According to publicly available data and information from the Form
5500 filings of similarly sized defined contribution plans during
the class period, other comparable plans were paying much lower
fees than the plan throughout the class period," the complaint
states. "That is clear and compelling evidence that the reasonable
market rate is lower than what the plan was paying since these
comparable plans were able to negotiate lower fees for materially
identical services."
The lawsuit calls into question the plan's use of what it calls
"custom" target-date funds (TDFs), which the plan uses as its
qualified default investment alternative (QDIA). According to the
complaint, the TDFs are managed by BlackRock and mirror the
BlackRock LifePath Index Funds, a collective investment trust (CIT)
TDF suite.
"Throughout the class period, there were many TDF offerings that
consistently and dramatically outperformed the Fluor TDFs,
providing investors with substantially more capital appreciation,"
the complaint states. "It is apparent, given the continued presence
of the Fluor TDFs in the plan's investment menu, that the
defendants failed to scrutinize the performance of the Fluor TDFs
against any of the more appropriate alternatives in the TDF
marketplace. Accordingly, the plan's investment in the Fluor TDFs
has resulted in participants missing out on millions of dollars in
retirement savings growth."
The lawsuit claims other funds selected for and maintained in the
plan were imprudent. It also alleges that plan participants were
not warned of the risk of investing in actively managed funds.
Fluor Corporation did not respond to a request for comment about
the lawsuit.
Fluor joins a growing list of plan sponsors that have been targeted
in excessive fee lawsuits.
Attorneys say plan sponsors can mitigate the implications of or
avoid ERISA litigation by including defensive provisions in their
plan documents. [GN]
FROEDTERT HEALTH: Bid to Toss Bangalore Suit Denied W/o Prejudice
-----------------------------------------------------------------
In the case, NITISH S. BANGALORE, Plaintiff v. FROEDTERT HEALTH
INC., et al., Case No. 20-cv-893-pp (E.D. Wis.), Judge Pamela
Pepper of the U.S. District Court for the Eastern District of
Wisconsin denied without prejudice the Defendants' motion to
dismiss.
On June 12, 2020, the Plaintiff filed a class action alleging that
the Defendants had violated the duties of loyalty and prudence
required of Employee Retirement Income Security Act governed
defined plan fiduciaries by, among other things, failing to monitor
fees and ensure that they were reasonable, failing to monitor
investments to ensure that they were prudent, failing to monitor
the committee in charge of the plan and engaging in prohibited
transactions. The Plaintiff filed an amended complaint on Sept. 10,
2020; the amended complaint omitted the allegations of engaging in
prohibited transactions.
In lieu of an answer, on Oct. 26, 2020, the Defendants filed a
motion to dismiss under Federal Rules of Civil Procedure 12(b)(1)
and 12(b)(6). Their motion relied heavily relied on the Seventh
Circuit's decision in Divane v. Northwestern University, 953 F.3d
980 (2020), and the Plaintiff's response focused on what he
characterized as the Defendants' misreading of that decision. In
opposition, the Plaintiff relied heavily on the Supreme Court's
2015 decision in Tibble v. Edison Int'l, 575 U.S. 523 (2015).
On Feb. 4, 2021, the Court held a hearing on the Defendants' motion
to dismiss. After hearing argument (both on subject-matter
jurisdiction and the merits of the defendants' arguments), it took
the motion under advisement. The hearing involved significant
argument about the applicability of Divane.
Just shy of five months later -- on July 2, 2021 -- the Supreme
Court granted certiorari to review the Seventh Circuit's decision
in Divane. On Jan. 24, 2022, the Supreme Court vacated the Seventh
Circuit's decision and remanded the case for further proceedings.
It cited its 2015 decision in Tibble, asserting that the
"categorical rule" applied by the Seventh Circuit "is inconsistent
with the content-specific inquiry that ERISA requires and fails to
take into account respondents' duty to monitor all plan investments
and remove any imprudent ones."
Given the Defendants' extensive reliance on Divane and other
Seventh Circuit cases that applied similar categorical rules, Judge
Pepper will deny the Defendants' motion without prejudice. She will
require that by the deadline she will set, the Defendants must file
a notice with the court indicating whether they either (a) need
additional time to evaluate the Hughes decision and its impact on
their position in the litigation, (b) plan to answer or otherwise
respond to the amended complaint or (c) propose some other option.
Accordingly, Judge Pepper denied without prejudice the Defendants'
motion to dismiss. By the end of the day on Feb. 11, 2022, the
Defendants must file a status report providing the information she
described.
A full-text copy of the Court's Jan. 26, 2022 Order is available at
https://tinyurl.com/5fprpbbe from Leagle.com.
GENERAL MOTORS: Court Partly Grants Bid to Dismiss Hackler Suit
---------------------------------------------------------------
In the case, SETH HACKLER, individually and on behalf of all others
similarly situated, Plaintiff v. GENERAL MOTORS LLC, Defendant,
Case No. 221-CV-019 (S.D. Ga.), Judge Lisa Godbey Wood of the U.S.
District Court for the Southern District of Georgia, Brunswick
Division, granted in part and denied in part GM's Motion to
Dismiss.
I. Background
Plaintiff Hackler brings the case before the Court as a putative
class action against Defendant GM. The Plaintiff asserts all claims
on behalf of a Florida statewide class and a nationwide class.
The case materially resembles similar class-action lawsuits that
have been litigated in other district courts across the country.
The Plaintiff even submits in his response that his allegations are
materially identical to those asserted in Sloan v. General Motors
LLC, No. 3:16-cv-07244, 2017 WL 3283998 (N.D. Cal. Aug. 1, 2017).
The Plaintiff, who is domiciled in Brunswick, Georgia, is the owner
of a 2013 Chevrolet Silverado, which is equipped with a Generation
IV 5.3 Liter V8 Vortec 5300 Engine. He purchased his Silverado new
in April 2013 from Palm Chevrolet in Ocala, Florida.
The Defendant designed the Gen IV Engine that is installed in the
Plaintiff's vehicle as well as other General Motors Corp. ("GMC")
and Chevrolet vehicle models manufactured in 2011-2014.
The Plaintiff's vehicle consumed an excessive amount of oil at
least as early as 2018, when it had approximately 80,000 miles on
the odometer. Due to excessive oil consumption, the Plaintiff's
vehicle has experienced repeated spark plug fouling and blown
gaskets.
The Plaintiff alleges that the problems he experienced with his
engine were caused by "an inherent defect in each of the Class
Vehicles," which he describes as the "Oil Consumption Defect."
Simply put, he alleges that the engine's piston rings fail to keep
oil in the crankcase. The Defendant intends for its piston rings to
last well over 100,000 miles, yet it saw the piston rings in the
Gen IV Engine wear out in as few as 30,000 miles. The Plaintiff
also contends that the Defendant implemented a defective oil life
monitoring system in the Class Vehicles that fails to advise
drivers of insufficient oil in their vehicles until those levels
are critically low, exacerbating the Oil Consumption Defect.
According to the Plaintiff, the Defendant was aware of the Oil
Consumption Defect as early as 2008 but failed to disclose it to
consumers prior to the purchase or lease of their Class Vehicles.
Specifically, he contends that the Defendant touted the safety and
dependability of the Class Vehicles but never informed the
Plaintiff or other class members of the Oil Consumption Defect. In
support of his allegation that GM had knowledge about the oil
consumption defect, the Plaintiff highlights the following facts:
(1) the Defendant ultimately switched over to more durable material
in its piston rings for the Gen V Engine design, (2) many consumers
complained about excessive oil consumption to the National Highway
Traffic Safety Administration ("NHTSA") and on online websites such
as carcomplaints.com, and (3) GM issued multiple Technical Service
Bulletins ("TSBs") to its dealers, which explicitly addressed the
issue of excessive oil consumption in Gen IV Engines.
The Plaintiff alleges that the TSBs suggested fixes that the
Defendant's engineers knew were ineffective. Despite its knowledge,
the Plaintiff maintains that the Defendant never disclosed the Oil
Consumption Defect to consumers. Instead, the Defendants
"repeatedly told consumers that the Class Vehicles were dependable,
long-lasting, and of the highest quality."
Prior to purchasing his 2013 Silverado, the Plaintiff spoke with a
sales representative at Palm Chevrolet, saw commercials for the
2013 Chevrolet Silverado that promoted the truck's reliability and
durability, and saw a Monroney sticker on the vehicle at the time
of purchase. He alleges that he would not have purchased his
vehicle, or paid as much for it as he did, had he known of the Oil
Consumption Defect.
The Plaintiff's complaint alleges violations of the Florida
Deceptive and Unfair Trade Practices Act ("FDUTPA") (Count I),
breach of express warranty (Count II), fraudulent
concealment/omission (Count III), and unjust enrichment (Count IV),
and violation of the Magnuson-Moss Warranty Act (Count V). The
parties agree that the Plaintiff's claims are governed by Florida
law. The Plaintiff filed its lawsuit in this Court, and the Court
has diversity jurisdiction under 28 U.S.C. Section 1332.
Pursuant to Rule 12(b)(6) and 9(b) of the Federal Rules of Civil
Procedure, the Defendant moved to dismiss all of the Plaintiff's
claims.
II. Discussion
In its Motion to Dismiss, GM argues that each of the Plaintiff's
five counts fails to state a claim for relief.
A. Count I - FDUTPA
The Defendant moves to dismiss the Plaintiff's FDUTPA claim because
1) it is time-barred under FDUTPA's four-year statute of
limitations, and 2) it does not meet Rule 9(b)'s heightened
pleading requirements which demand that fraud claims be pled with
particularity. In response, the Plaintiff insists that 1) the
statute of limitations was tolled due to evidence of concealment,
and 2) Rule 9(b) does not apply to FDUTPA claims and, even if it
does, that he has sufficiently alleged Defendant's knowledge of the
Oil Consumption Defect so as to satisfy Rule 9(b)'s notice
requirements.
Judge Wood concludes that the Plaintiff shows sufficient evidence
of concealment, such that the statute of limitations was tolled.
Further, she concludes because the Plaintiff's FDUTPA claim
involves fraud or misrepresentation, Rule 9(b)'s heightened
pleading requirements apply. However, because the Plaintiff's
complaint contains specific allegations to satisfy Rule 9(b)'s
requirements, the Defendant's Motion to Dismiss is denied for this
claim.
B. Count II - Breach of Express Warranty
The Defendant next seeks to dismiss the Plaintiff's claim for
breach of express warranty, contending it fails on two grounds.
First, the Defendant argues that the express warranty applies only
to defects in "materials or workmanship," which, Defendant
contends, excludes design defects such as the Oil Consumption
Defect. Second, it argues that even if the defect was within the
scope of the warranty, the Plaintiff cannot succeed on a claim for
breach of warranty because he has failed to allege an essential
element of a breach of warranty claim under Florida law -- that he
sought and was denied repairs during the warranty term.
The Plaintiff responds that the Oil Consumption Defect is best
characterized as a defect in materials, and even if it is a design
defect, that the warranty covers design defects and further that he
did not need to seek repairs because the warranty "failed of its
essential purpose."
Judge Wood finds that the Defendant has the better of these
arguments. The defect is best characterized as a design defect, not
a manufacturing defect. And while she concludes that the warranty
here covers design defects, Judge Wood holds that the Plaintiff has
not alleged that the Defendant failed or refused to remedy any
defect, nor has he shown the warranty failed of its essential
purpose such that he was not required to satisfy this requirement.
Thus, the Defendant's Motion to Dismiss is granted on this ground.
C. Fraudulent concealment/omission (Count III)
The Defendant next seeks to dismiss Count III of the Plaintiff's
complaint, arguing that Florida's economic loss doctrine bars the
Plaintiff's state law fraud claim because he seeks only economic
damages and alleges no personal injury or property damage. The
Plaintiff argues that even though the economic loss doctrine does
apply, his claim falls within a narrow exception because of
Defendant's alleged fraudulent acts. Caselaw shows the Florida
Supreme Court clearly intended to quash the exceptions to the
economic loss doctrine in the products liability context, so the
Defendant's Motion to Dismiss is granted on this ground as well.
D. Count IV - Unjust Enrichment
The Defendant next moves to dismiss Count IV of the Plaintiff's
complaint, arguing that such a claim cannot be brought because an
express contract governs the subject matter of the dispute. The
Plaintiff acknowledges the express contract but insists that he is
pleading his unjust enrichment claim in the alternative. As such,
the question is whether the existence of an express contract bars
pleading an unjust enrichment claim in the alternative.
Judge Wood finds that the Plaintiff is barred from pleading unjust
enrichment in the alternative. Indeed, the case to which Plaintiff
cites in support of alternative pleading, actually supports the
Defendant's position. It states: "Courts have found that when a
claim for equitable relief reincorporates an allegation that a
contract exists, the acknowledgment of the contract causes the
equitable claim to fail because in such cases there is no dispute
as to the existence of a contract." As such, the Defendant's motion
is granted as to the Plaintiff's unjust enrichment claim.
E. Count V - Magnuson-Moss Warranty Act
Finally, in Count V, the Plaintiff brings a claim alleging a
violation of the Magnuson-Moss Warranty Act ("MMWA"). State law
governs claims brought pursuant to the MMWA. That is, "claims under
the Magnuson-Moss Act stand or fall with a plaintiff's express and
implied warranty claims under state law." In the case, the
Plaintiff's MMWA claim is premised on the express written limited
warranty. Because the Plaintiff's claim for breach of express
warranty is due to be dismissed, his MMWA claim must be dismissed
without prejudice.
III. Conclusion
For the stated reasons, Judge Wood denied in part and granted in
part the Defendant's Motion to Dismiss. She denied the Motion as to
Count I and granted as to Counts II-V.
A full-text copy of the Court's Jan. 28, 2022 Order is available at
https://tinyurl.com/34sb53jf from Leagle.com.
GENUINE DATA: Court Dismisses Jackson FCRA Suit Without Prejudice
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In the case, NIGEL E. JACKSON, on behalf of himself and all
similarly situated individuals, Plaintiff v. GENUINE DATA SERVICES,
LLC, Defendant, Civil No. 3:21cv211 (DJN) (E.D. Va.), Judge David
J. Novak of the U.S. District Court for the Eastern District of
Virginia, Richmond Division:
(i) granted the Defendant's Motion to Dismiss the Amended
Complaint Under Rule 12(b)(2) for Lack for Personal
Jurisdiction and Rule 12(b)(3) for Improper Venue, or, in
the Alternative, to Transfer; and
(ii) denied both the Plaintiff's Motion to Strike Defendant's
Reply in Support of Its Motion to Dismiss and request for
jurisdictional discovery.
I. Background
Plaintiff Jackson brings the action individually and on behalf of
all other similarly situated individuals against the Defendant,
alleging violations of the Fair Credit Reporting Act ("FCRA").
Before the Defendant's inception, the Defendant's predecessor
collected a Virginia traffic record from July 2000 reflecting that
the Plaintiff had been found "Guilty in Absentia" for the traffic
infraction of "NO CO TAG-B." The predecessor provided this record
to RealPage. At some point after the Defendant's creation, the
Defendant received the record from its predecessor, and later, it
also provided the record to RealPage as part of a bulk public data
file that included thousands of other public records.
In December 2019, the Plaintiff applied to rent an apartment at The
Nexus at West Alex, an apartment complex located in the Eastern
District of Virginia, which required a background check. The
Plaintiff's prospective landlord ordered a background check from
RealPage, which provides consumer reports to landlords for tenant
screening purposes under the name "The Leasing Desk," in December
2020. ) Using the public record data that it received from
Defendant and the Defendant's predecessor, RealPage included the
Plaintiff's July 2000 traffic infraction in the background check
that it provided to The Nexus. As a result, The Nexus denied the
Plaintiff's rental application.
At the time when the record at issue was first collected, the
Defendant did not exist. Instead, its predecessor collected the
record and first provided it to RealPage, then later transferred
the record to the Defendant. The Defendant also provided the record
to RealPage in a bulk public data file. (
On March 30, 2021, the Plaintiff filed his original Complaint. On
June 18, 2021, the Defendant moved to dismiss the Complaint. On
July 9, 2021, the Plaintiff filed his Amended Complaint, raising
two claims for relief based on the above allegations. Count One
asserts a class-action claim under the FCRA, alleging that the
Defendant neglected to remove traffic infraction information older
than seven years from background check reports on the Plaintiff and
each of the class members in violation of 15 U.S.C. Section
1681c(a). Count Two also asserts a class-action claim under the
FCRA, alleging that the Defendant did not implement procedures
designed to prevent violations of FCRA in the course of its record
reporting in violation of 15 U.S.C. Section 1681e(a). Based on
these claims, the Plaintiff, on his own behalf and on behalf of the
putative class members, seeks class certification, statutory and
punitive damages and attorney's fees.
In response to the Amended Complaint, the Defendant filed a Motion
to Dismiss under Federal Rule of Civil Procedure 12(b)(2) for lack
of personal jurisdiction and under 12(b)(3) for improper venue, or,
in the alternative, to transfer. It argues that the Plaintiff could
not establish that the Court had general or specific personal
jurisdiction over the Defendant, and that neither the Eastern
District of Virginia nor the Richmond Division constitutes proper
venues for the action. In support of its Motion to Dismiss, the
Defendant attached a Declaration by Cathy Klafehn, the Defendant's
former VP of Operations, who described the Defendant's business
operations based on her personal knowledge and review of company
records.
The Plaintiff responded to the Motion on Sept. 9, 2021. In his
Response, the Plaintiff requested that, if the Court found that it
lacked personal jurisdiction over the Defendant, then the Plaintiff
would be permitted to take jurisdictional discovery on the extent
of the Defendant's contacts with Virginia. The Court later granted
another extension of time for Defendant to file its Reply. On Oct.
7, 2021, the Defendant filed its Reply, to which it attached a
second Declaration by Klafehn, rendering the Motion to Dismiss the
Amended Complaint ripe for review.
On Oct. 19, 2021, the Plaintiff filed a Motion to Strike, moving to
strike the Defendant's Reply in support of its Motion to Dismiss
the Second Amended Complaint and Klafehn's Declarations. He posited
that the Defendant introduced new arguments in its Reply, and that
the first and second Klafehn Declarations contradicted each other.
The Court issued an Order directing the Defendant to respond to the
Motion to Strike and prohibiting Plaintiff from filing a Reply. The
Defendant then filed its Opposition to the Motion to Strike on Nov.
16, 2021, rendering the Motion to Strike ripe for review.
II. Discussion
A. Motion to Strike
Judge Novak will deny the Plaintiff's Motion to Strike Defendant's
Reply in support of its Motion to Dismiss and the Klafehn
Declarations. He explains that Federal Rule of Civil Procedure
12(f) allows a district court, by motion of a party or on its own
initiative, to "strike from a pleading an insufficient defense or
any redundant, immaterial, impertinent, or scandalous matter." Rule
7(a) defines pleadings as a complaint, an answer to a complaint, an
answer to a counterclaim or crossclaim, a third-party complaint, an
answer to a third-party complaint and "if the court orders one, a
reply to an answer." By omission from Rule 7(a), motions, briefs
and affidavits necessarily do not constitute pleadings.
On occasion, courts in the District "have considered motions to
strike on the merits, notwithstanding that the motions were made in
reference to materials that were not 'pleadings' under Rule 7(a)."
"However, when specifically confronted with the issue, the Court
has held that a party's brief or motion or affidavit is not a
pleading under the Federal Rules of Civil Procedure, and is
therefore not subject to a motion to strike under Rule 12(f)."
Adhering to this line of reasoning "provides a simple, clear method
to dispose of the motions to strike" presently before the Court.
For this reason, Judge Novak need not address the merits of the
Plaintiff's Motion to Strike and will summarily deny it.
B. The Rule 12 (B)(2) Motion
The Defendant contends that it did not purposefully direct
activities in Virginia, because it does not maintain a physical
presence there and does not advertise there, and it obtains bulk
data from all fifty states without targeting Virginia in
particular. Further, it explains that it did not communicate with a
party in Virginia with respect to the Plaintiff, as it merely
transmitted data to RealPage, which then included the record at
issue in a report to The Nexus. The Defendant's operations take
place in Texas and South Carolina, and it has its headquarters in
Texas.
The Plaintiff responds that the Defendant assented to personal
jurisdiction in Virginia by obtaining the data at issue, because it
obtained the data from the Online Case Information System 2.0
("OCIS 2.0"), a database maintained by the Office of the Executive
Secretary of the Supreme Court of Virginia ("OES"). To access data
on the OCIS 2.0, users must agree to an End User License Agreement
("EULA") that requires them to "subject themselves to the laws and
jurisdiction of the Commonwealth of Virginia." Alternatively, he
argues, the Defendant purposefully availed itself of doing business
in Virginia by obtaining data from the OES, which has its office in
Richmond, thereby targeting Virginia residents. Similarly, the
Plaintiff also contends that the Defendant must have known that
RealPage planned to issue reports about Virginia consumers, because
the Defendant provided RealPage with public records from Virginia.
Judge Novak opines that he must find that the Defendant has not
purposefully availed itself of Virginia law, and that the Plaintiff
does not fulfill the first prong of specific jurisdiction test.
Because the Plaintiff failed to meet the first prong, the Amended
Complaint cannot survive the Motion to Dismiss. Judge Novak need
not address whether the action arose out of the Defendant's
activities in Virginia or whether exercising personal jurisdiction
over the Defendant would be constitutionally reasonable. By
extension, since he will dismiss the case for lack of personal
jurisdiction, Judge Noval will not reach the Defendant's arguments
regarding venue, for the absence of personal jurisdiction moots the
venue issue.
C. Plaintiff's Request for Jurisdictional Discovery
Finally, Judge Novak will also deny the Plaintiff's request for
jurisdictional discovery. In both its Opposition to the Motion to
Dismiss and its Memorandum in support of its Motion to Strike, the
Plaintiff requests 60 days to explore the Defendant's contacts with
Virginia.
As a threshold matter, the Plaintiff requested jurisdictional
discovery in a rather informal fashion. He did not set forth his
request in a separate motion. Instead, he made this demand as a
brief request in the alternative in his Opposition to the Motion to
Dismiss and again in his Motion to Strike. For that reason alone,
Judge Novak holds that the Court could exercise its discretion to
deny this demand outright as improperly requested.
Putting aside the form of the Plaintiff's request, Judge Novak will
nevertheless deny the Plaintiff's request on the merits, because he
finds that such a general demand for jurisdictional discovery to be
overbroad and unsupported by "specific and substantive" allegations
of the relationship between the Defendant and the forum state.
Judge Novak cannot discern whether the Plaintiff seeks to request
discovery on the Defendant's contacts with Virginia in general or
only on these specific issues. But even if discovery was limited to
these particular questions, he would still deny the Plaintiff's
request.
Lastly, the Plaintiff's questions regarding whether the Defendant
updated its records and why the Defendant did not have one of its
current employees testify do not bear on the jurisdictional
analysis. The first question appears to pertain to the merits of
the Plaintiff's claims under the FCRA, and the latter has nothing
to do with jurisdiction. Consequently, Judge Novak would also deny
jurisdictional discovery on these questions.
III. Conclusion
For the foregoing reasons, Judge Novak granted the Defendant's
Motion to Dismiss for Lack of Personal Jurisdiction without
reaching the issue of venue, and dismissed without prejudice the
Second Amended Complaint. He further denied the Plaintiff's Motion
to Strike and request for jurisdictional discovery.
The Clerk is directed to file a copy of the Order electronically
and notify all counsel of record.
A full-text copy of the Court's Jan. 26, 2022 Memorandum Opinion is
available at https://tinyurl.com/2j59a6rk from Leagle.com.
GHIRARDELLI ASSOCIATES: Faces Tunkel FLSA Suit in N.D. California
-----------------------------------------------------------------
RAYMOND TUNKEL, individually and on behalf of all others similarly
situated, Plaintiff v. GHIRARDELLI ASSOCIATES, INC., Defendant,
Case No. 5:22-cv-00689 (N.D. Cal., February 2, 2022) is a class
action against the Defendant for violations of the Fair Labor
Standards Act, the California Labor Code, and the California's
Business and Professions Code including failure to pay overtime
wages, failure to provide compensation for missed meal and rest
periods, failure to provide accurate wage notices, failure to
timely pay wages, and unfair business practices.
Mr. Tunkel worked for the Defendant as a construction inspector
from 2007 until April 2019.
Ghirardelli Associates, Inc. is a provider of construction
inspection and management services, with its principal place of
business in Santa Clara County, California. [BN]
The Plaintiff is represented by:
Matthew S. Parmet, Esq.
PARMET PC
340 S. Lemon Ave., #1228
Walnut, CA 91789
Telephone: (310) 928-1277
E-mail: matt@parmet.law
GLOBAL SCAFFOLD: Merryman Labor Suit Removed to W.D. Pennsylvania
-----------------------------------------------------------------
The case styled ROBERT J. MERRYMAN, individually and on behalf of
all others similarly situated v. GLOBAL SCAFFOLD CONSTRUCTION
SERVICES, INC. and CHRISTOPHER FANNIN, Case No. GD-21-012748, was
removed from the Court of Common Pleas of Allegheny County,
Commonwealth of Pennsylvania, to the U.S. District Court for the
Western District of Pennsylvania on February 3, 2022.
The Clerk of Court for the Western District of Pennsylvania
assigned Case No. 2:22-cv-00200-WSH to the proceeding.
The case arises from the Defendant's alleged violation of the
Pennsylvania labor law by failing to compensate the Plaintiff and
similarly situated workers overtime pay for all hours worked in
excess of 40 hours in a workweek.
Global Scaffold Construction Services, Inc. is a building finishing
contractor, with its principal place of business in Louisiana.
[BN]
The Defendant is represented by:
Larry J. Rappoport, Esq.
Brad M. Kushner, Esq.
Brandon S. Shemtob, Esq.
STEVENS & LEE, P.C.
1500 Market Street, East Tower, Suite 1800
Philadelphia, PA 19102
Telephone: (215) 751-1949
Facsimile: (610) 371-7906
E-mail: brad.kushner@stevenslee.com
GOAUTO INSURANCE: Court Grants Turner's Bid to Remand Class Suit
----------------------------------------------------------------
In the case, ROBERT MARK TURNER, Individually and on behalf of
others similarly situated v. GOAUTO INSURANCE COMPANY, Civil Action
No. 21-00557-BAJ-RLB (M.D. La.), Judge Brian A. Jackson of the U.S.
District Court for the Middle District of Louisiana remanded the
action to the Nineteenth Judicial District Court for the Parish of
East Baton Rouge, Louisiana.
I. Background
The putative class action alleges unfair and fraudulent practices
in the adjustment of auto insurance claims against Defendant
GoAuto, in violation of the Louisiana Insurance Code, La. R.S.
Section 22:1, et seq. Named Plaintiff and putative class
representative Robert Mark Turner filed his original Petition For
Damages on Jan. 28, 2019, in the Nineteenth Judicial District Court
for the Parish of East Baton Rouge, Louisiana. On Sept. 29, 2021,
GoAuto removed the Plaintiff's action to the District, invoking the
Court's jurisdiction under the Class Action Fairness Act of 2005
("CAFA"), 28 U.S.C. Section 1332(d).
Auto based its removal on the Plaintiff's class action allegations
set forth in his Dec. 1, 2020 Amended Petition For Damages, which
GoAuto asserted was the "operative petition" on the date of
removal. Relevant in the matter, GoAuto argued that the Plaintiff's
proposed class satisfied CAFA's minimal diversity requirement
because GoAuto is a Louisiana corporation, and the Plaintiff's
Amended Petition set forth a class definition expressly including
"all residents of Louisiana who were insured by GoAuto for the
total loss of their vehicle" without any limitation to exclude
"Louisiana resident policyholders that are not Louisiana citizens."
According to GoAuto, "because members of the class as defined by
the Plaintiff may include citizens of states different from the
named defendant, the minimal diversity requirement of CAFA is met
and removal is appropriate."
Unfortunately for GoAuto, the Plaintiff's Dec. 1, 2020 Amended
Petition was not the operative petition on the date of removal. In
fact, on Sept. 27, 2022 -- two days prior to GoAuto's removal --
the presiding judge in the Plaintiff's state court proceedings
granted Plaintiff's motion for leave to file a second amended
petition, and, in the same order, directed that the Plaintiff's
Second Amended Petition "shall be filed and then served" on
GoAuto's counsel. Importantly, the Plaintiff's Second Amended
Petition revised the proposed class definition to include only
"citizens of Louisiana insured by GoAuto for the total loss of a
vehicle," thereby excluding citizens of different states and
destroying minimal diversity.
GoAuto readily concedes that it was aware of the Plaintiff's
request to file his Second Amended Petition at the time of
removal—indeed, GoAuto admitted as much in its Notice of Removal.
It insists, however, that it was not aware of the state court's
September 27 Order granting the Plaintiff's second request to amend
until after GoAuto filed its removal papers.
After GoAuto removed the Plaintiff's action to the Court, the
confusion regarding the operative pleading touched off a flurry of
activity among the parties. First, the Plaintiff filed a Motion to
Remand, arguing that GoAuto failed to satisfy CAFA's minimal
jurisdiction requirement based on the revised class definition set
forth in the Second Amended Petition, and that, in any event,
GoAuto's removal was untimely. On the same day, the Plaintiff filed
two motions seeking to strike declarations submitted by GoAuto in
support of its removal papers, and a third pleading styled Motion
for Judicial Notice and Sua Sponte Remand, which essentially
restated the arguments set forth in the Plaintiff's Motion to
Remand. Finally, three weeks later, the Plaintiff filed a pleading
styled Rule 56 Motion For Summary Judgment, which (again) sought a
ruling "recognizing that the removal in the case was untimely and
an order remanding the case." GoAuto dutifully submitted briefs
opposing each of the Plaintiff's various motions.
Presently before the Court is the Magistrate Judge's Report and
Recommendation, recommending that the Plaintiff's action be
remanded to state court due to GoAuto's failure to prove CAFA's
minimal diversity requirement by a preponderance of the evidence.
Specifically, the Magistrate Judge concludes that the Plaintiff's
Second Amended Petition became the operative pleading on Sept. 27,
2022 -- two days prior to removal -- when the presiding state court
judge signed the order granting the Plaintiff's motion for leave to
amend, and that that pleading destroyed minimal diversity.
Having determined that GoAuto failed to establish minimal
diversity, the Magistrate Judge recommends remand on this basis
alone, without reaching the Plaintiff's alternative argument that
GoAuto's removal papers were untimely, or even addressing the
Plaintiff's various other motions. Finally, the Magistrate Judge
recommends that the Plaintiff should not recover costs and expenses
associated with contesting GoAuto's Notice of Removal, because even
if GoAuto was mistaken regarding the operative pleading, GoAuto's
attempt to establish jurisdiction in federal court was not
objectively unreasonable in light of unsettled authority regarding
when an amended pleading becomes operative under Louisiana law, and
whether a plaintiff can limit a proposed class to in-state citizens
for the purpose of defeating CAFA jurisdiction.
Each side now objects in part to the Magistrate Judge's Report and
Recommendation. The Plaintiff agrees that the case should be
remanded because minimal diversity is defeated, but argues that the
Magistrate Judge should have gone further, and also addressed
whether the Defendant's Notice of Removal was untimely, which would
necessarily include rulings on his various additional motions.
GoAuto, for its part, is satisfied with the Magistrate Judge's
conclusion that it should not have to pay the Plaintiff's costs and
expenses, but still maintains that the Amended Petition is the
operative petition for purposes of removal and that, in any event,
CAFA jurisdiction is satisfied regardless whether the Amended
Petition or the Second Amended Petition controls the analysis.
II. Discussion
Upon de novo review, Judge Jackson will approve the Magistrate
Judge's Report and Recommendation, and adopt it as the Court's
opinion in the matter. The action will be remanded to state court
based on the same reasoning and persuasive authorities set forth in
the Magistrate Judge's Report and Recommendation.
In sum, Judge Jackson holds that two facts drive the Court's
conclusion that it lacks jurisdiction over the case. First, he
says, the Plaintiff's Second Amended Petition became the operative
pleading on Sept. 27, 2022, when the presiding state court judge
signed the order granting the Plaintiff's motion for leave to
amend. Second, the Plaintiff's Second Amended Petition defeats
CAFA's minimal diversity requirement by expressly limiting the
proposed class to include only Louisiana citizens.
The Plaintiff's argument that the Court should go further in it
analysis, and also determine whether GoAuto's removal was untimely,
is simply a non-starter. Having already determined that it lacks
jurisdiction, any further rulings would be conjectural, and based
on an assumption that CAFA jurisdiction is satisfied. Such
speculation would result in an impermissible advisory opinion,
Judge Jackson holds.
GoAuto's objections are equally unpersuasive, in that they would
require the Court to conclude (a) the presiding state-court judge's
order granting the Plaintiff leave to amend was not
self-effectuating and did not immediately result in the Plaintiff's
Second Amended Petition becoming "operative," and/or (b) that the
Plaintiff's express limitation of his proposed class to include
only Louisiana citizens is to be disregarded, Judge Jackson finds.
But he will not so lightly disregard the authority of its
state-court brethren to issue orders binding on cases within their
jurisdiction, as this would violate well-established notions of
comity and judicial restraint.
Likewise, Judge Jackson will not simply dismiss the express
allegations that are the basis of the Plaintiff's class action,
even if these allegations are specifically intended to circumvent
CAFA jurisdiction. He finds that the Plaintiff, as master of his
petition, is permitted to limit his class as he sees fit.
III. Conclusion
Accordingly, Judge Jackson granted the Plaintiff's Motion to
Remand. He remanded the action immediately to the Nineteenth
Judicial District Court for the Parish of East Baton Rouge,
Louisiana. Each party will bear its own costs and expenses
associated with the Defendant's removal.
The Plaintiff's Motion to Strike the Declaration of Jason Burge and
Attached Exhibits A-H, the Plaintiff's Motion to Strike Declaration
of Kerry Berry, the Plaintiff's Motion for Judicial Notice and Sua
Sponte Remand, and the Plaintiff's Motion for Summary Judgment are
denied as moot.
A full-text copy of the Court's Jan. 28, 2022 Ruling & Order is
available at https://tinyurl.com/2p9d3myr from Leagle.com.
GOOGLE LLC: Wants Copyright Claimant Kept in YouTube Class Action
-----------------------------------------------------------------
Andy Maxwell, writing for Torrent Freak, reports that when musician
Maria Schneider launched a class action lawsuit against YouTube
demanding access to Content ID, she did so with 'Pirate Monitor'.
Due to this company's allegedly fraudulent actions, YouTube filed a
counterclaim that the plaintiffs now want severed from the case.
According to them, YouTube wants a "guilt-by-association weapon" to
sully the class.
Sad YouTubeIn the hope of accessing YouTube's Content ID system, in
2020 musician Maria Schneider launched a class action lawsuit that
alleged mass infringement and serious deficiencies in YouTube's
copyright enforcement measures.
She did so with the support of a shadowy company called 'Pirate
Monitor' but an in-depth investigation by YouTube later revealed
that the entity was up to no good.
In order to build its case against YouTube, Pirate Monitor had
uploaded around 2,000 movie clips to YouTube and then filed
fraudulent takedown notices to have that content removed. It later
admitted it didn't hold the copyrights to the works it asserted in
the case.
YouTube went on to file a counterclaim and named Hungarian film
director and California resident Gábor Csupó (who previously
worked on The Simpsons, Rugrats, Duckman, Stressed Eric, and
Aaahh!!! Real Monsters) as the person presiding over Pirate
Monitor.
With allegations of fraud threatening to bring the class into
disrepute, Pirate Monitor voluntarily dismissed its claims against
YouTube but the video platform refused to back down, keeping the
allegations of a "wide-ranging fraud" in its counterclaim intact.
In the wake of Pirate Monitor's withdrawal, Schneider filed a first
amended complaint that added two new parties to the action --
Uniglobe Entertainment, LLC and AST Publishing. Yet again (and as
it did earlier with Schneider and Pirate Monitor) YouTube pointed
out huge deficiencies in the claims of the new companies and in
December asked the court to dismiss the entire complaint.
Plaintiffs Want Counterclaim Handed Separately
In the meantime, however, Pirate Monitor and its behavior are back
at the forefront of the case after the plaintiffs asked the court
to sever YouTube's counterclaim from the case so it can be handled
separately. Predictably, YouTube is having none of it.
In its opposition to the motion to sever, YouTube says that after
"handpicking" Pirate Monitor to lead the putative class action
based on claims that it was suffering in the same way as other
copyright holders around the world, Pirate Monitor was held up as a
"perfect example" of a copyright holder wrongly denied access to
Content ID. With its "fraudulent" actions showing otherwise, the
opposite was evident.
"Pirate Monitor has instead proven to be a perfect example of why
YouTube does not -- and cannot -- offer Content ID to everyone,"
YouTube's response reads. "Giving Pirate Monitor the power to
control and block videos based on bogus copyright claims like those
it asserted here could have visited significant hardship on
countless YouTube users."
YouTube says that when the plaintiffs could no longer deny Pirate
Monitor's misconduct, the company dismissed its own claims with
prejudice. This demonstrates that the plaintiffs only wish to sever
YouTube's counterclaims against Pirate Monitor because its own
actions support YouTube's position that Content ID access will be
abused if they allow anyone to use it.
"It is hard to imagine a better embodiment of YouTube's concerns
about Content ID misuse than Pirate Monitor. Its baseless assertion
of copyright ownership and its fraudulent infringement claims
would, if made through Content ID's automated machinery, wreak
havoc on other users and YouTube itself. As a result, the
presentation of YouTube's counterclaims against Pirate Monitor will
confirm the need for Content ID access restrictions and refute
Plaintiffs' charge that the restrictions are intended to enable
'copyright piracy'," YouTube writes.
"Plaintiffs chose Pirate Monitor as their standard bearer at the
start of this case," the video platform continues.
"They understandably now wish to distance themselves as much as
possible. But the overlap between Plaintiffs' affirmative claims,
YouTube's counterclaims, and Pirate Monitor's defenses is plain,
and no legitimate interests would be served by severing the
counterclaims at this point."
"YouTube Believes Pirate Monitor Sullys The Case"
In their reply in support of their motion to sever, the plaintiffs
frame things very differently. They argue that the idea of
severance is to promote judicial economy and to avoid prejudice.
They note that YouTube is seeking $20,000 in its counterclaim
against Pirate Monitor but that has already resulted in
"significant waste and prejudice."
According to them, YouTube has already spent in excess of $100,000
in attorney's fees litigating its counterclaims, an "exponential
disparity" that makes a settlement "the only rational path" to
resolve the claims. Indeed, the plaintiffs claim that severance
would facilitate such a settlement but they believe YouTube isn't
interested in the money.
"The sole justification for this waste is YouTube's improper desire
to distract from the claims brought by Plaintiffs Maria Schneider,
Uniglobe Entertainment, and AST Publishing in their pursuit of
class-wide relief," they inform the court.
"If the cases are not decoupled, however, YouTube will continue to
press the claims against Pirate Monitor for the simple reason that
YouTube believes these claims sully the class and will unduly
influence the decision-maker -- inappropriate reasons to contest
severance."
The plaintiffs further state that YouTube is using its
counterclaims against Pirate Monitor as a "guilt-by-association
weapon to be wielded against Plaintiffs and the putative class,"
adding that severance would not prejudice YouTube. [GN]
GRAND CANYON UNIVERSITY: Class of Students Certified in Little Suit
-------------------------------------------------------------------
In the case, Carson Little, Plaintiff v. Grand Canyon University,
Defendant, Case No. CV-20-00795-PHX-SMB (D. Ariz.), Judge Susan M.
Brnovich of the U.S. District Court for the District of Arizona
granted in part and denied in part Little's Amended Motion for
Class Certification and Appointment of Class Representative and
Class Counsel.
I. Background
On April 24, 2020, the Plaintiff filed a class action complaint
against GCU alleging that the university failed to provide proper
refunds of housing expenses, meal plans, and student fees after GCU
sent students home in response to the COVID-19 pandemic during the
Spring 2020 semester. The Plaintiff's Complaint sought to bring
claims on behalf of two classes: (1) those who paid room and board
fees to GCU and (2) those who paid fees during the Spring 2020
semester. The Complaint brought claims for breach of contract,
unjust enrichment, and conversion.
On Jan. 29, 2021, the Court ruled on the Defendant's Motion to
Dismiss Plaintiff's Complaint. In its ruling, the Court allowed the
Plaintiff's breach of contract and unjust enrichment claims to
proceed while dismissing the conversion claim.
The Plaintiff is a GCU student who paid the cost of room and board
and fees for the Spring 2020 semester. While the Plaintiff lists in
his Complaint fees which students pay, he did not specify which
ones he paid for the 2019-2020 academic year. Furthermore, although
the Complaint lists housing and meal plan costs, he does not
specify how much he paid in housing costs. Students at GCU moved
into on-campus housing for the Spring 2020 semester on Jan. 4 and
5, 2020.
Prior to the COVID-19 outbreak, non-graduating students were
required to move out of campus housing by April 23, 2020.
Graduating students were required to move out by April 25, 2020.
However, on or around March 12, 2020, GCU announced that due to the
COVID-19 pandemic, all but a few classes would be moved online for
the remainder of the Spring 2020 semester. At that time, GCU
encouraged students to return to their homes and complete their
coursework online.
On March 21, 2020, GCU told students, "We are asking all students
-- other than international students who cannot travel to their
home countries and students who have special circumstances -- to
leave campus as soon as possible." The communication also stated
that if students stayed, they would be restricted to their rooms,
the campus grocery/convenience store, and the health and wellness
clinic. It also stated that students who remained on campus could
expect a significant cutback of food services beginning on March
23, 2020. On March 23, 2020, GCU announced that limited credits
would be offered to students who moved out of their on-campus
housing by March 25, 2020, with credits ranging from $260-$450
based on dorm location and occupancy.
The Plaintiff alleges that the credits offered by GCU are
insufficient because they are not the full-prorated, unused portion
of students' room and board payments. GCU also announced that, in
lieu of providing refunds for meal plans, any "Dining Dollars" left
in students' accounts would roll over to the next semester.
Graduating students would have their balance of the Dining Dollars
refunded at the end of the semester.
The Plaintiff alleges that the rollover plan for the Dining Dollars
was insufficient. GCU did not provide or offer students any refund
of miscellaneous fees they paid for the Spring 2020 semester.
Despite complaints and demands by students and parents, GCU stood
by its policy of refusing refunds. The Plaintiff left campus on
March 13, 2020 and did not return to campus, in accordance with
GCU's policies.
The Plaintiff seeks the "disgorgement" of the pro-rated amount of
monies paid for fees, room and board, and meal plans from GCU. He
offers the following definition of the class that he seeks to
certify: "All students enrolled in on-campus classes at Grand
Canyon University for the Spring 2020 semester and who were charged
fees for services, facilities, resources, activities, and/or events
that were not provided, in whole or in part, during the Spring 2020
semester."
II. Discussion
A. Objection to Plaintiff's Notice of Supplemental Authority
As a threshold matter, GCU filed an objection to the first of the
Plaintiff's three notices of supplemental authority. The objection
argues that the Plaintiff's First Notice of Supplemental Authority
contains improper argument. The Plaintiff's First Notice of
Supplemental Authority, indeed, contains multiple paragraphs with
improper argument. The purpose of a notice of supplemental
authority is to inform a court of a newly decided case that is
relevant to the dispute before it, but it is not a venue for
submission of additional argument or factual evidence. Because the
Plaintiff used the notice as an improper opportunity to make
argument, the document will be stricken.
B. Standing
GCU argues that the Plaintiff lacks standing to bring the proposed
class claims because his parents paid for his room, board, fees,
and textbooks. "Every class member must have Article III standing
in order to recover individual damages." Named plaintiffs who
represent a class "must allege and show that they personally have
been injured, not that injury has been suffered by other,
unidentified members of the class to which they belong."
Judge Brnovich (i) rejects GCU's argument that the Plaintiff lacks
standing because his parents paid his fees and costs; (ii) rejects
GCU's argument that the Plaintiff lacks standing because he did not
pay every type of fee that GCU charged students; (iii) rejects
GCU's argument that the Plaintiff lacks standing because he did not
use all the services or facilities for which he paid; (iv) rejects
GCU's argument that the Plaintiff has abandoned his claims for room
and board lacks merit; and (v) holds that GCU fails to show
evidence that the Plaintiff continued to live on campus and the
credit would impact damages, not standing. Accordingly, she holds
that the Plaintiff does not lack standing as class representative.
C. Scope of the Class
GCU's opposition argues that the Plaintiff's proposed class cannot
be certified because it goes beyond the Complaint's allegations and
claims. The Plaintiff's proposed change to the class definition is
minor, will not require additional discovery, and will not
prejudice GCU. He proposes the following class definition: "All
students enrolled in on-campus classes at Grand Canyon University
for the Spring 2020 semester and who were charged fees for
services, facilities, resources, activities, and/or events that
were not provided, in whole or in part, during the Spring 2020
semester." This definition encompasses students, like the
Plaintiff, who did not receive all the facilities, services, and
amenities for which they paid due to GCU's COVID-19 related campus
closure.
Judge Brnovich notes, however, that students would not be injured
if they were merely charged fees for services but never paid. This
deficiency in the definition can be fixed with a simple
modification. Accordingly, she will modify the class definition as
follows: "All students enrolled in on-campus classes at Grand
Canyon University for the Spring 2020 semester and who were charged
and paid fees for services, facilities, resources, activities,
and/or events that were not provided, in whole or in part, during
the Spring 2020 semester."
D. Definite and Ascertainable
In addition to being a member of the class, Rule 23 has the
additional threshold requirement that the class be adequately
definite and ascertainable. Judge Brnovich finds that the class is
definite and ascertainable. GCU can readily ascertain the identity
of class members from its records, which should show which students
stayed on campus after the campus closure and the amount of fees
that each student paid. Thus, she finds that the threshold
requirements of Rule 23 are satisfied.
E. Rule 23(a) Requirements
Judge Brnovich holds that the Plaintiff has satisfied Rule 23(a)
requirements. He finds that (i) the Plaintiff has proposed a class
with at least 20,000 members; (ii) the issue on whether GCU's
alleged breach of contract or unjust enrichment was the same for
each student; (iii) the Plaintiff's injury is based on the same
conduct of GCU suffered by the rest of the class; and (iv) the
Plaintiff has satisfied Rule 23(a)(4) and will adequately represent
the class.
F. Rule 23(b)
Having determined that the Plaintiff has satisfied the requirements
of Rule 23(a), Judge Brnovich now turns to analyze whether the
Plaintiff has satisfied at least one subsection in section 23(b).
She finds that (i) questions of law or fact predominate over
questions affecting only individual members for Plaintiff's breach
of contract claims; and (ii) the Plaintiff has failed to show
predominance for its unjust enrichment claim; and (iii) a class
action is superior to other forms of adjudication to fairly and
efficiently resolve this controversy for Plaintiff's breach of
contract claims.
III. Conclusion
Accordingly, Judge Brnovich granted in part and denied in part the
Plaintiff's Motion for Class Certification as outlined. She
certifies the Plaintiff's breach of contract claims but will not
certify his unjust enrichment claims. Judge Brnovich struck the
Plaintiff's First Notice of Supplemental Authority from the docket.
The class definition will be amended as outlined.
A full-text copy of the Court's Jan. 28, 2022 Order is available at
https://tinyurl.com/2zmd76v2 from Leagle.com.
GREENSPRING VILLAGE: Santiago Sues Over Wage-and-Hour Violations
----------------------------------------------------------------
STEPHANIE SANTIAGO and DONNA CHRISTIAN GALEAS UMANA, individually
and on behalf of all others similarly situated, Plaintiffs v.
GREENSPRING VILLAGE, INC. and ERICKSON SENIOR LIVING, LLC,
Defendants, Case No. 1:22-cv-00103-MSN-IDD (E.D. Va., January 31,
2022) is a class action against the Defendants for their failure to
pay the Plaintiffs their straight time and overtime pay in
violation of the Fair Labor Standards Act and the Virginia Wage
Payment Law.
The Plaintiffs worked as non-exempt employees at the Defendants'
primary office located at 7440 Spring Village Drive, Springfield,
Virginia from April 21, 2006 until June 4, 2021 and from June 14,
2015 until January 22, 2021, respectively.
Greenspring Village, Inc. is an owner and operator of senior living
community, with its primary office located at 7440 Spring Village
Drive, Springfield, Virginia.
Erickson Senior Living, LLC is an owner, manager and developer of
retirement communities, with its corporate office located at 701
Maiden Choice Lane, Baltimore, Maryland. [BN]
The Plaintiffs are represented by:
Thomas F. Hennessy, Esq.
THE HENNESSY LAW FIRM, PLLC
4015 Chain Bridge Road, Suite G
Fairfax, VA 22030
Telephone: (703) 865-8836
Facsimile: (703) 865-7633
E-mail: thennessy@virginiawage.net
H&M HENNES: Wingo's Suit Over Wage-&-Hour Laws Violations Stayed
----------------------------------------------------------------
Judge Phyllis J. Hamilton of the U.S. District Court for the
Northern District of California granted the Defendant's motion to
stay the case, JESSICA WINGO, Plaintiff v. H&M HENNES & MAURITZ,
L.P., Defendant, Case No. 21-cv-09000-PJH (N.D. Cal.).
The Defendant's motion to dismiss or, in the alternative, stay came
on for hearing before the Court on Jan. 27, 2022.
The matter is one of two class action lawsuits brought against the
Defendant for alleged violations of California wage-and-hour laws.
The other matter in question is Gonzalez v. H&M Hennes & Mauritz
L.P. et al, Case No. 21-cv-0161, which is proceeding before the
U.S. District Court in the Central District of California. Rather
than litigate two similar cases, the Defendant seeks to dismiss, or
stay, this lawsuit pursuant to the first-to-file rule.
Judge Hamilton explains that the first-to-file rule "may be invoked
when a complaint involving the same parties and issues has already
been filed in another district." A court considers the "chronology
of the lawsuits, similarity of the parties, and similarity of the
issues" in determining whether to apply the first-to-file rule.
All three considerations favor application of the first-to-file
rule in this instance, Judge Hamilton concludes. First, it is
undisputed that Gonzalez was filed about eight weeks before this
lawsuit. Second, the broad proposed class in Gonzalez encompasses
the narrower proposed class in this lawsuit. Third, both lawsuits
raise the same state labor law claims.
Where the first-to-file rule applies, the court "has discretion to
transfer, stay, or dismiss the second case in the interest of
efficiency and judicial economy." Dismissal under the
"first-to-file rule is improper if it would prejudice the plaintiff
in the second-filed case from presenting its claims in either the
first-filed case or a later case." Because of the potential for
prejudice against the Plaintiff, Judge Hamilton finds dismissal an
inappropriate remedy.
For the foregoing reasons, Judge Hamilton granted the Defendant's
alternative motion to stay and granted its request for judicial
notice.
A full-text copy of the Court's Jan. 28, 2022 Order is available at
https://tinyurl.com/2p85t84a from Leagle.com.
HAIKU @ WP: Class of N.Y. Delivery Drivers Certified in Hong Suit
-----------------------------------------------------------------
In the case, YINGCAI HONG, on his own behalf and on behalf of
others similarly situated, Plaintiff v. HAIKU @ WP INC. d/b/a Haiku
Asian Bistro White Plains; JP WHITE PLAINS, INC. d/b/a Haiku Asian
Bistro White Plains; and SOONWAH LEE a/k/a Michael Lee, Defendants,
Case No. 19 Civ. 5018 (NSR) (S.D.N.Y.), Judge Nelson S. Roman of
the U.S. District Court for the Southern District of New York
granted in part and denied in part the Plaintiff's Motion for
Conditional Class Certification.
I. Background
Plaintiff Yingcai Hong, a former deliveryman, brought the putative
collective and class action against Defendants Haiku @ WP Inc. and
JP White Plains, Inc., and their owner, Soonwah Lee, alleging wage
violations under the Fair Labor Standards Act ("FLSA"), 29 U.S.C.
Sections 190, et seq., and New York Labor Law ("NYLL"), N.Y. Lab.
Law Sections 190, et seq., Sections 650, et seq.
The Defendants operate a restaurant known as Haiku Asian Bistro
located in White Plains, New York. Haiku employs between 20 and 30
people. During the relevant time period, the Plaintiff recalls that
Haiku employed approximately 3-5 delivery persons, 8-9 sushi bar
workers, 5 waiters, 5 cooks, 3 fry wok workers, and 2
cashiers/recipients.
The Plaintiff alleges that from about November 2015 to August 2016,
and again from February 2017 to May 20, 2018, the Defendants
employed him as a deliveryman at Haiku. Until December 2017, the
Plaintiff worked an average of 58.5 hours per week and the
Defendants paid him $7.50 per hour. From January 2018 to May 2018,
he worked an average of 50.5 hours per week and the Defendants paid
him $9.15 per hour.
The Plaintiff alleges that the Defendants paid him less than the
federal minimum wage for the first 40 hours per week and less than
the required 1.5 times the federal minimum wage for each hour
worked beyond 40 hours per week. Since the New York minimum wage
was higher than the federal minimum wage for all relevant periods,
his pay was also below the New York minimum wage at all relevant
times.
The Plaintiff asserts that he is aware of other delivery drivers,
who worked under similar circumstances as he did, including: Lao
Gao, Lao Meng, Lin Ding, Qiang Lang, Jiao, and Qiu. He claims that
each of these workers worked more than 40 hours per week, received
$7.50 per hour plus tips initially, and $9.15 per hour plus tips
thereafter. He claims that each of these workers had similar
"improper deductions" made against their pay for meals, tips, and
transportation costs.
The Plaintiff also asserts that he is aware of other employees --
not delivery drivers -- who he claims worked under similar
circumstances, including: Ah Biao, a waiter, Lisa, a waitress,
another unidentified waitress, Danny, a driver, Ah Liang, a sushi
chef, Ah Ling, a cashier/recipient, another unidentified Malaysian
cashier/recipient, two unidentified Spanish-speaking kitchen
workers who are father and son, and another pair of unidentified
Cantonese kitchen workers who are also father and son. He claims
that each of these workers also worked more than 40 hours per week.
He finally claims to be aware of these facts because he drove these
employees "to and back from the restaurant, and he saw their
starting and ending time every workday."
The Plaintiff filed the action on May 31, 2019. The Court granted
him leave to file an Amended Complaint and the Defendants leave to
move to dismiss the Amended Complaint. The Plaintiff filed an
Amended Complaint on Feb. 27, 2020 asserting 13 causes of action,
including: (I) meal transportation credit violation under 29 U.S.C.
Section 203(m) and 29 C.F.R. Section 531.3; (II) illegal tip
retention under 29 U.S.C. Section 203(m) and (t); (III) meal credit
violation under NYCRR; (IV) illegal tip retention under NYLL
Section 146-2.18 and 2.20; (V) failure to pay minimum wage and
unpaid wages under 29 U.S.C. Section 206; (VI) failure to pay
minimum wage and unpaid wages under NYLL; (VII) failure to pay
overtime in violation of 29 U.S.C. Section 207(a); (VIII) failure
to pay overtime in violation of NYLL; (IX) failure to provide meal
periods in violation of NYLL; (X) failure to keep records in
violation of NYCRR Section 14602.1; (XI) failure to provide time of
hire wage notice in violation of NYLL Section 195-1(a); (XII)
failure to provide wage statements in violation of NYLL Section
195-1(d); and (XIII) failure to pay delivery experts working on the
road standard mileage reimbursement rate published by the Internal
Revenue Service.
On June 3, 2020, the Defendants moved to dismiss the Plaintiff's
Amended Complaint for lack of standing, and, alternatively, for
failure to state a plausible claim. On March 31, 2021, the Court
granted in part, denied in part the Defendants' motion.
Specifically, while the Court dismissed the claims asserted against
certain corporate and individual defendants because the Plaintiff
failed to sufficiently allege that they had any nexus to or control
over his employment, it also denied the motion in all other
respects. The Defendants subsequently filed their answer on May 5,
2021.
On May 19, 2021, the Plaintiff asked leave from the Court to file
the instant motion, which the Court granted and then set a briefing
schedule. The parties filed their respective briefing on Aug. 20,
2020: The Plaintiff filed the instant motion, his attorney's
declaration with accompanying exhibits, a memorandum in support;
the Defendants filed their response in opposition and their
attorney's declaration with accompanying exhibits; and finally, the
Plaintiff filed his reply.
II. Discussion
By his motion, the Plaintiff argues that conditional certification
is appropriate because he has made the required showing that other
individuals employed by the Defendants are similarly situated. He
further requests the Court to issue an order expediting notice and
disclosure of contact information, as well authorizing his proposed
notice of pendency and consent joint form to be disseminated by
mail, email, text message, or social media groups, among other
means, to all members of the collective in English, Chinese, and
Spanish. The Plaintiff finally asks the Court to equitably toll the
statute of limitations to protect the claims of the potential
members of the FLSA collective against the Defendants.
In opposition, the Defendants contend that the Plaintiff has failed
to show that the employees he seeks to represent were victims of a
"common plan or policy" that violated the FLSA within the
limitations period, or even that the Defendants committed an FLSA
violation. But should the Court grant the conditional
certification, the Defendants request the Court to limit the FLSA
collective because the Plaintiff failed to show that the non-driver
employees he seeks to represent are similarly situated based on his
claims. Moreover, if the Court authorizes and sends the notice to
these members, the Defendants ask the Court to (1) deny equitable
tolling, or, alternatively, to keep the look-back period to two
years because Plaintiff has failed to present any well-pleaded
allegations of that the Defendants committed the FLSA violations
willfully; and (2) modify and revise the notices the Plaintiff
proposes.
Accordingly, Judge Roman first addresses whether the Plaintiff made
the required showing that other employees were similarly situated
and only considers the rest of the parties' arguments if
conditional certification is warranted.
A. Conditional Certification
Judge Roman opines that the Plaintiff provides sufficient factual
detail to enable the Court to conclude, at least preliminarily,
that he is similarly situated to the other delivery drivers with
whom he worked. He first identifies other delivery drivers either
by their names or nicknames and physical description, who he
asserts were subject to similar wage-and-hour violations.
The Plaintiff next avers that delivery drivers at Haiku were
subject to similar policies and practices, including that they were
allegedly (1) not paid the minimum wage based on unlawful
deductions of tips, meal, and transportation credits; (2) often
required to work overtime without adequate pay; and (3) given meals
which did not include tea, coffee, and milk. And he asserts that he
learnt of such circumstances by working alongside the other drivers
and by observing the manager handing over their pay in check with
an accompanying salary chart, which reflected similar credit
deductions. Thus, from these facts, JUdge Roman can fairly infer
that other delivery drivers worked under similar working conditions
and "allegedly suffered the same violations of the FLSA and NYLL."
However, regarding the broader class of non-managerial employees
that the Plaintiff wishes to certify (encompassing
waiters/waitresses, sushi chefs, cashiers/recipients, and kitchen
workers), Judge Roman agrees with the Defendants that the Plaintiff
has not met his burden because he has only made conclusory
assertions. While he does allege that these other non-managerial
employees often worked overtime, Judge Roman cannot fairly infer
from that fact alone that they labored under similar working
conditions and thus suffered the same violations of the FLSA --
namely, that they were inadequately paid. Though the bar for
conditional certification of a collective action under the FLSA is
low, it is not this low.
As the Plaintiff has failed to meet even his modest burden of
showing that these as waiters/waitresses, sushi chefs,
cashiers/recipients, and kitchen workers employed by Defendants are
similarly situated to him, Judge Roman will not conditionally
certify a collective that includes these categories of workers.
Accordingly, at this stage, he only finds it appropriate to grant
conditional certification of a collective covering employees who
held the position of "delivery drivers" at Haiku in White Plains,
New York.
B. Limitations Period, Equitable Tolling, and Look-Back Notice
Period
The Defendants contend that any alleged FLSA violation relating to
other potential plaintiffs that occurred during the Plaintiff's
employment (which ended May 20, 2018) is barred because it would
have occurred outside either the two-year or three-year limitations
period applicable under the FLSA. But the Plaintiff argues that,
because he made allegations of willful violations of the FLSA, the
Court should permit the collective period to extend back three
years from the filing of the complaint, as courts routinely allow,
for potential plaintiffs to join the collective class.
Judge Roman notes that there is a particularly strong basis for
potential equitable tolling given the significant delay in ruling
on the motion. But even when assuming the significant delay in
deciding the motion merits equitable tolling, it is unclear whether
these potential plaintiffs will be barred from the action due to a
delay in notice. That said, because the Plaintiff alleges that the
violations here were willful, Judge Roman will permit notice to be
distributed to "all potential plaintiffs employed within three
years of the date of the filing of the Complaint and defer
consideration of the statute of limitations until after the opt-in
period." At that time, any individual would-be plaintiffs whose
claims have expired may seek equitable tolling as it may apply to
them.
Therefore, Judge Roman will allow notice to be sent to all delivery
drivers employed by the Defendants at Haiku in White Plains, New
York during the three years prior to May 31, 2019, the date of the
filing of the complaint.
C. Production of Potential Op-In Plaintiff Information
The Plaintiff next requests that the Court orders the Defendants to
produce a Microsoft Excel spreadsheet containing contact
information for the potential opt-in plaintiffs. He requests the
Defendants to disclose, among other things, the potential opt-in
plaintiffs' "last known mailing addresses, last known telephone
numbers, last known email addresses, last known WhatsApp, WeChat
and/or Facebook usernames, work location, dates of employment, and
position," within 14 days of the order granting his request for
conditional certification.
On balance, Judge Roman concludes that the Defendants providing
social media usernames can help ensure that notice of the
collective action reaches all potential opt-in plaintiffs.
Therefore, he will require the Defendants to produce to the
Plaintiff's counsel, within 14 days of the Order, an Excel
spreadsheet containing the names, dates of employment, positions,
last known mailing addresses, last known telephone numbers, last
known email addresses, and last known WhatsApp, WeChat and/or
Facebook usernames, of all current and former delivery drivers
employed by Defendants at Haiku in White Plains, New York on or
after May 31, 2016.
D. Notice and Consent Form
The next set of issues the parties raise involves the form, method,
and timing of the information to be sent to the potential opt-in
plaintiffs. The Plaintiff requests that the Court approves his
proposed Notice that gives the potential plaintiffs 90 days to "opt
in" to the action. He further requests that the Court: (1)
authorizes the Plaintiff's counsel to disseminate the Notice via
mail, email, text message or social media chat, and on the
counsel's website and social media groups; (2) requires the
Defendants to post the Notice in a conspicuous location in their
restaurants and to include it in the employees' pay envelopes or
other methods of delivery of their paycheck information; (3)
authorizes the Plaintiff's counsel to send a reminder, via mail and
email, to all individuals who have failed to respond approximately
halfway through the notice period; (4) excludes the contact
information for the Defendants' counsel from the Notice; and (5)
require that "all notices or posts to employees' attention be in
Chinese, Spanish, and English.
The Defendants object (or seek revisions) to the content of the
proposed Notice and the Plaintiff's proposals for distributing it,
arguing that: (1) the contact information for the Defendants'
counsel should be included in the Notice; (2) the Plaintiff's
counsel should disclose its fee arrangement with any prospective
plaintiffs, including the percentage of any recovery that would be
paid as attorney fees from any recovery by the opt-in Plaintiffs,
and that "language should be added to reflect that an individual
who joins the case may be asked to pay for costs and fees"; (3) the
consent form should be sent to either to the Plaintiff's counsel or
the Clerk of Court, rather than just the Plaintiff's counsel; (4)
the opt-in period should extend for only 60 days rather than the
requested 90 days; (5) the immigration status reference from the
Notice should be removed; (6) there is no need for a reminder
notice; (7) the Notice should not be posted at the restaurant
because it is unnecessary and overly intrusive; and (8) the Notice
should not be posted on social media groups, nor should it be
published on the Plaintiff's counsel's website.
First, with respect to the Content of Notice, Judge Roman (i) will
not require disclosure of the precise percentage or amount to be
paid to the Plaintiff's counsel as attorney fees, because that
figure cannot now be known; (ii) will evaluate any request for fees
and costs by the Plaintiff's counsel and will approve such an award
only after determining that it is fair and reasonable; (iii)
directs the Plaintiff to add language adequately conveying how
costs will be handled in the event of a judgment against the
Plaintiff(s); (iv) orders that the Notice be modified such that the
consent form be sent either to the Clerk of Court or the
Plaintiff's counsel, instead of only to the latter; and (v) agrees
with the Plaintiff that the contact information for the Defendants'
counsel in the Notice should not be included.
Second, regarding the Opt-in Period and Reminder, Judge Roman holds
that the opt-in period will remain 60 days. Notwithstanding, he
grants the Plaintiff's request to send reminders via mail and email
halfway through the opt-in period.
Third, as to the Methods of Notice, Judge Roman agrees that
disseminating the Notice by mail, email, text message, and social
media chat (addressed specifically to members of the proposed
collective) is appropriate. However, he will not authorize the
Plaintiff's counsel to post a short form of the notice on public
social media groups. Moreover, he does not grant the Plaintiff's
requests to add QR codes, to use the Defendants' logo, to post the
notice on the Plaintiff's counsel's website, or to distribute the
notice through the Defendants' pay envelopes.
III. Conclusion
For the foregoing reasons, Judge Roman granted in part and denied
in part the Plaintiff's motion for class certification. He granted
the motion with respect to the conditional certification of
delivery drivers employed at Haiku in White Plains, New York on or
after May 31, 2016. He denied the motion with respect to the
conditional certification of the other non-managerial employees.
Accordingly, by Feb. 11, 2022, the Defendants will produce to the
Plaintiff a spreadsheet, in Excel if possible, containing the
names, last known mailing addresses, last known telephone numbers,
last known email addresses, last known WhatsApp, WeChat and/or
Facebook usernames, dates of employment, and positions of all
delivery drivers employed at Haiku in White Plains, New York, by
May 31, 2016.
On Feb. 18, 2022, the parties shall, after meeting and conferring,
prepare and submit to the Court, for approval, a revised form of
notice (and related consent form) incorporating the Court's rulings
delineated elsewhere in the Order.
Judge Roman further directed the Clerk of Court to terminate the
motions at ECF No. 46.
A full-text copy of the Court's Jan. 28, 2022 Opinion & Order is
available at https://tinyurl.com/2fsy773s from Leagle.com.
HEBREW ACADEMY: Barahona Sues Over Unpaid Wages, Discrimination
---------------------------------------------------------------
DANIEL BARAHONA, individually and on behalf of all others similarly
situated, Plaintiff v. HEBREW ACADEMY OF THE FIVE TOWNS AND
ROCKAWAY and DAVID LEIBTAG and ARI SOLOMON, Defendants, Case No.
2:22-cv-00594 (E.D.N.Y., February 1, 2022) is a class action
against the Defendants for violations of the Fair Labor Standards
Act, the New York State Human Rights Law and the New York State
Labor Law including failure to pay overtime wages, failure to pay
minimum wages, failure to timely pay wages, failure to provide
accurate wage notices, failure to provide accurate wage statements,
and discrimination.
The Plaintiff was employed by the Defendant as a janitor at Hebrew
Academy of the Five Towns and Rockaway from September 2013 until
March 2020.
Hebrew Academy of the Five Towns and Rockaway is a school located
at 389 Central Avenue Lawrence, New York. [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
HELZBERG'S DIAMOND: Ybarra Labor Code Suit Removed to N.D. Cal.
---------------------------------------------------------------
The case styled EDUARDO YBARRA, individually and on behalf of all
others similarly situated v. HELZBERG'S DIAMOND SHOPS, LLC and DOES
1-50, inclusive, Case No. 21CV003531, was removed from the Superior
Court of California for the County of Alameda to the U.S. District
Court for the Northern District of California on February 2, 2022.
The Clerk of Court for the Northern District of California assigned
Case No. 3:22-cv-00696 to the proceeding.
The case arises from the Defendant's alleged violations of the
California Labor Code and the California's Business and Professions
Code including failure to pay minimum wages, failure to pay
overtime wages, failure to provide lawful meal periods, failure to
authorize and permit rest periods, failure to provide accurate wage
statements, failure to timely pay wages, failure to reimburse
necessary expenses, and unfair business practices.
Helzberg's Diamond Shops, LLC is a jewelry retailer, headquartered
in Missouri. [BN]
The Defendant is represented by:
Michael J. Nader, Esq.
OGLETREE, DEAKINS, NASH, SMOAK & STEWART, P.C.
500 Capitol Mall, Suite 2500
Sacramento, CA 95814
Telephone: (916) 840-3150
Facsimile: (916) 840-3159
E-mail: michael.nader@ogletreedeakins.com
- and –
Atticus Lee, Esq.
OGLETREE, DEAKINS, NASH, SMOAK & STEWART, P.C.
One Embarcadero Center, Suite 900
San Francisco, CA 94111
Telephone: (415) 442-4810
Facsimile: (415) 442-4870
E-mail: atticus.lee@ogletree.com
HENKEL CORPORATION: Davis Suit Moved From S.D. Ohio to D. Conn.
---------------------------------------------------------------
The case styled BRAD A. DAVIS, individually and on behalf of all
others similarly situated v. HENKEL CORPORATION and THRIVING BRANDS
LLC, Case No. 1:21-cv-00782, was transferred from the U.S. District
Court for the Southern District of Ohio to the U.S. District Court
for the District of Connecticut on February 2, 2022.
The Clerk of Court for the District of Connecticut assigned Case
No. 3:22-cv-00196-SRU to the proceeding.
The case arises from the Defendants' alleged breach of express
warranty, unjust enrichment, and violations of the Georgia's Fair
Business Practices Act and the Georgia's Uniform Deceptive Trade
Practices Act by manufacturing and selling Right Guard spray-on
antiperspirant products that contain benzene, a known human
carcinogen.
Henkel Corporation is a chemical and consumer goods company, with
its principal place of business and headquarters located at One
Henkel Way, Rocky Hill, Connecticut.
Thriving Brands LLC is a consumer goods company, headquartered in
Cincinnati, Ohio. [BN]
The Plaintiff is represented by:
Joseph J. Braun, Esq.
Richard S. Wayne, Esq.
STRAUSS TROY
150 E. 4th Street, 4th Floor
Cincinnati, OH 45202
Telephone: (513) 621-2120
Facsimile: (513) 241-8259
E-mail: jjbraun@strausstroy.com
rswayne@strausstroy.com
- and –
Mark S. Reich, Esq.
Courtney E. Maccarone, Esq.
LEVI & KORSINSKY, LLP
55 Broadway, 10th Floor
New York, NY 10006
Telephone: (212) 363-7500
Facsimile: (212) 363-7171
E-mail: mreich@zlk.com
cmaccarone@zlk.com
HIGUERA FARMS: Morales-Garcia Seeks Review of Amended Judgment
--------------------------------------------------------------
Plaintiff Luis Morales-Garcia, et al., filed an appeal from a court
ruling entered in the lawsuit styled Luis Morales-Garcia, Benito
Perez-Reyez, Cesar Jimenez-Mendoza and Gabriela Rendon-Vasquez, on
behalf of themselves and all others similarly situated, Plaintiffs
v. Higuera Farms, Inc., La Cuesta Farming Company, Inc. and Does 1
through 10 inclusive, Defendants, Case No. 2:18-cv-05118-SVW-JPR,
in the U.S. District Court for the Central District of California,
Los Angeles.
The lawsuit is filed against the Defendant in the state of
California dealing with mandatory transportation of agricultural
workers.
As reported in the Class Action Reporter, the Plaintiffs asked the
Court on December 20, 2021 to enter an order granting their motion
for class certification under Rule 23 of the Federal Rules of Civil
Procedure.
On Jan. 3, 2022, the Court entered an amended entry of judgment in
accordance with its Memorandum of Decision, Final Judgment, and
Order granting Plaintiffs' motion for certification under Federal
Rule of Civil Procedure 54(b), holding that: (a) judgment is
entered in favor of Defendants Better Produce, Inc. and Red Blossom
Sales, Inc.; (b) this Judgment shall be deemed a final judgment
pursuant to Federal Rule of Civil Procedure 58; and (c) pursuant to
Federal Rule of Civil Procedure 54(b), there is no just reason for
delay because the claims against Red Blossom Sales, Inc. and Better
Produce, Inc. for joint employer and client employer are severable
in both the legal and factual issues involved from the claims
against Higuera Farms Inc., La Cuesta Farming Company, Inc., and
Big F Company, Inc. for wage and hour violations.
The Plaintiffs seek a review of this amended order.
The appellate case is captioned as Luis Morales-Garcia, et al. v.
Better Produce, Inc., et al., Case No. 22-55119, in the United
States Court of Appeals for the Ninth Circuit, filed on Feb. 1,
2022.
The briefing schedule in the Appellate Case states that:
-- Appellants Cesar Jimenez-Mendoza, Luis Morales-Garcia, Benito
Perez-Reyez, Gabriela Rendon-Vasquez and Juana Velasco-Torres
Mediation Questionnaire was due on February 8, 2022;
-- Transcript will be ordered by March 3, 2022;
-- Transcript is due on April 4, 2022;
-- Appellants Cesar Jimenez-Mendoza, Luis Morales-Garcia, Benito
Perez-Reyez, Gabriela Rendon-Vasquez and Juana Velasco-Torres
opening brief is due on May 12, 2022;
-- Appellees Better Produce, Inc. and Red Blossom Sales, Inc.
answering brief is due on June 13, 2022; and
-- Appellants' optional reply brief is due 21 days after service
of the answering brief. [BN]
Plaintiffs-Appellants LUIS MORALES-GARCIA, BENITO PEREZ-REYEZ,
CESAR JIMENEZ-MENDOZA, GABRIELA RENDON-VASQUEZ, and JUANA
VELASCO-TORRES, on behalf of themselves and all others similarly
situated, are represented by:
Cecilia Guevara Zamora, Esq.
Veronica Melendez, Esq.
CALIFORNIA RURAL LEGAL ASSISTANCE FOUNDATION
2210 K Street, Suite 201
Sacramento, CA 95816
Telephone: (916) 446-7905
- and -
Cynthia Louise Rice, Esq.
CALIFORNIA RURAL LEGAL ASSISTANCE, INC.
631 Howard Street
San Francisco, CA 94105
Telephone: (415) 777-2752
Defendants-Appellees BETTER PRODUCE, INC. and RED BLOSSOM SALES,
INC. are represented by:
Todd C. Hunt, Esq.
LAW OFFICE OF TODD C. HUNT, APC
30721 Russel Ranch Road
Thousand Oaks, CA 91362
Telephone: (310) 994-0157
- and -
Effie F. Anastassiou, Esq.
ANASTASSIOU & ASSOCIATES
P.O. Box 2210
Salinas, CA 93902
Telephone: (831) 754-2501
- and -
Jason Wade Kearnaghan, Esq.
Richard J. Simmons, Esq.
Nora K. Stilestein, Esq.
SHEPPARD MULLIN RICHTER & HAMPTON, LLP
333 S Hope Street, 43rd Floor
Los Angeles, CA 90071-1448
Telephone: (213) 620-1780
HYATT CORPORATION: Vigil Wage-and-Hour Suit Removed to N.D. Cal.
----------------------------------------------------------------
The case styled JOE VIGIL, individually and on behalf of all others
similarly situated v. HYATT CORPORATION; GRAND HYATT S.F., LLC,
doing business as GRAND HYATT SAN FRANCISCO; and DOES 1-50,
inclusive, Case No. CGC-21-596484, was removed from the Superior
Court of California for the County of San Francisco to the U.S.
District Court for the Northern District of California on February
2, 2022.
The Clerk of Court for the Northern District of California assigned
Case No. 3:22-cv-00693 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 pay minimum wages, failure to pay
overtime owed, failure to provide lawful meal periods, failure to
authorize and permit rest periods, failure to timely pay wages due
and payable during employment, failure to timely pay wages upon
separation, failure to reimburse necessary expenses, knowing and
intentional failure to comply with itemized wage statement
provisions, and unfair competition.
Hyatt Corporation is an American multinational hospitality company,
with its corporate headquarters in Chicago, Illinois.
Grand Hyatt S.F., LLC, doing business as Grand Hyatt San Francisco,
is a hospitality company based in California. [BN]
The Defendants are represented by:
Brian P. Long, Esq.
SEYFARTH SHAW LLP
601 South Figueroa Street, Suite 3300
Los Angeles, CA 90017-5793
Telephone: (213) 270-9600
Facsimile: (213) 270-9601
E-mail: bplong@seyfarth.com
- and –
Michael Afar, Esq.
SEYFARTH SHAW LLP
2029 Century Park East, Suite 3500
Los Angeles, CA 90067
Telephone: (310) 277-7200
Facsimile: (310) 201-5219
E-mail: mafar@seyfarth.com
- and –
Phillip J. Ebsworth, Esq.
SEYFARTH SHAW LLP
400 Capitol Mall, Suite 2350
Sacramento, CA 95814
Telephone: (916) 448-0159
Facsimile: (916) 558-4839
E-mail: pebsworth@seyfarth.com
ILLINOIS: Appellate Court Affirms Dismissal of Kristen B. v. DCFS
-----------------------------------------------------------------
In the case, KRISTEN B., CHELSEA J., QUINCITA F., and KHARIS M.,
Plaintiffs-Appellants v. THE DEPARTMENT OF CHILDREN AND FAMILY
SERVICES and MARC D. SMITH, in His Official Capacity as Acting
Director of Children and Family Services, Defendants-Appellees,
(T.B., W.C., J.T., Da. G., Do. G, and V.M., Intervenors-Appellees),
Case No. 1-20-0754 (Ill. App.), the Appellate Court of Illinois for
the First District, Fifth Division, affirmed the judgment of the
circuit court dismissing the complaint with prejudice, as
modified.
I. Introduction
Plaintiffs Kristen B., Chelsea J., Quincita F., and Kharis M. are
mothers of minor children who were temporarily removed from the
Plaintiffs' custody by the State and were living in foster care.
The Plaintiffs were granted supervised visits by the child
protection division of the circuit court of Cook County.
On March 25, 2020, one of the Defendants, the Illinois Department
of Children and Family Services (DCFS), issued Action Transmittal
2020.02 (Updated) (March Action Transmittal), which suspended
in-person supervised visits due to the COVID-19 pandemic. The March
Action Transmittal noted that the country and the citizens of
Illinois were "currently experiencing an unprecedented public
health crisis." In light of "the extreme circumstances" related to
COVID-19 and the need to ensure that children's health was
protected through social distancing, DCFS suspended all in-person
supervised visits between parents and children in foster care and
all sibling visits. DCFS directed staff and caregivers to identify
alternative ways to allow parent-child and sibling contact during
the crisis, including via phone calls and videoconferencing.
Unsupervised visits were allowed to continue with the use of a
pre-screening tool. At the time, the Plaintiffs were represented in
their child protection cases by assistant public defenders.
The Plaintiffs filed a complaint in the chancery division of the
circuit court that challenged the March Action Transmittal. The
circuit court dismissed the complaint under section 2-619(a)(3) of
the Code of Civil Procedure (Code) (735 ILCS 5/2-619(a)(3) (West
2018)). On May 18, 2020, the chancery division issued a written
order that dismissed the complaint with prejudice under section
2-619(a)(3) of the Code and found that the Plaintiffs' motion for a
TRO was moot.
The court stated that all of the Plaintiffs had upcoming hearings
in the child protection division on individual motions to compel
in-person visits. Since the Plaintiffs had pending abuse and/or
neglect cases in the child protection division, that court
addressed the very issues presented in the chancery matter. The
child protection division was the appropriate forum for the
Plaintiffs' grievances. The Plaintiffs did not present any unique
issues that the child protection division was unable to handle in
its ordinary proceedings.
The Plaintiffs filed a notice of appeal on June 11, 2020. On
appeal, the parties dispute whether the cause is moot and whether
the chancery action was void. The Plaintiffs also contend that (1)
the Code does not allow an intervenor to move to dismiss a
complaint, (2) the chancery complaint action did not involve the
same parties and same cause as any action pending in the child
protection division, (3) the circuit court should have considered
the Plaintiffs' motion for leave to amend the complaint, and (4)
the chancery complaint should have been dismissed without
prejudice.
While this appeal was pending, the public guardian and DCFS
defendants separately moved to dismiss the appeal as moot. In part,
the public guardian stated that the March Action Transmittal was no
longer in effect. On June 15, 2020, the DCFS defendants issued
Action Transmittal 2020.07 (June Action Transmittal), which
rescinded and superseded the March Action Transmittal and set out a
process for implementing in-person visits between parents and
children in foster care.
The June Action Transmittal stated that DCFS's guidance "has been
and will continued to be impacted by the status of the COVID-19
public health crisis in Illinois. Accordingly, DCFS may amend its
guidance in the future and will continue to assess the safety of
in-person contacts on a case-by-case basis."
The public guardian also asserted that due to developments in their
cases, the Plaintiffs had achieved their goal of resuming in-person
visits. For three of the Plaintiffs, in-person visits resumed in
July and August 2020. The child of the fourth Plaintiff returned
home in June 2020 under an order of protection. Court orders for
the Plaintiffs' cases were attached to the motion.
In their motion to dismiss the appeal, the DCFS defendants asserted
in part that nothing indicated that DCFS would again have to
implement guidance like the March Action Transmittal. If it did,
the Plaintiffs would have recourse in their individual child
protection cases. The Plaintiffs responded in part that the appeal
was not moot because they sought monetary damages. They also raised
certain exceptions to the mootness doctrine. On Oct. 5, 2020, the
Appellate Court denied the public guardian's and DCFS defendants'
motions to dismiss the appeal.
II. Analysis
A. Arguments for Dismissing the Appeal
Initially, the Appellate Court addresses the public guardian's and
the DCFS defendants' contentions that the appeal should be
dismissed. They again assert that the appeal is moot. The DCFS
defendants also state that the underlying action is void ab initio
because it was filed outside of the scope of section 3-4006 of the
Counties Code (55 ILCS 5/3-4006 (West 2018) (duties of the public
defender)).
1. Mootness
As before, the public guardian contends that the appeal is moot
because the March Action Transmittal was rescinded and because of
developments in plaintiffs' child protection cases. The public
guardian also posits that it is unlikely that a ban on supervised
visits would be implemented again. The DCFS defendants note that
DCFS has issued additional directives related to in-person visits
since March 2020, but none reverted to suspending visits. They
further state that the section 1983 count in the Plaintiffs'
complaint did not include damages in its prayer for relief and
because Acting Director Smith was named in his official capacity,
damages would be barred by sovereign immunity.
The Plaintiffs assert that the case is not moot to the extent that
damages were pled and their complaint sufficiently suggested the
potential for monetary damages. That aside, they note that, on
remand, they could make curative amendments to the complaint.
The Appellate Court opines that it does not need to address whether
a request for damages prevents the appeal from being moot. Another
ground raised by the Plaintiffs is dispositive -- the voluntary
cessation exception. While the threat of suspending in-person
supervised visits is far less than previously, that threat is not
zero. The pandemic is not over. As of the time of the Opinion
writing, cases of COVID-19 are surging. A significant percentage of
Illinois residents are not vaccinated. Given the ongoing
uncertainty about the course of the pandemic, the Appellate Court
cannot say there is no basis to conclude that DCFS will never again
suspend in-person supervised visits. The Plaintiffs' challenge is
not moot.
2. Public Defender Statute
As another reason to dismiss the appeal, the DCFS defendants
contend that the underlying action was void ab initio because it
was filed outside the scope of section 3-4006 of the Counties Code
(55 ILCS 5/3-4006 (West 2018)), which confines the scope of the
public defender's duties to a narrow category of cases. They argue
that, based on statutory language from the Counties Code and
Juvenile Court Act of 1987 (705 ILCS 405/1-1 et seq. (West 2018)),
the public defender may not represent parents outside of child
protection proceedings.
The Appellate Court holds that it does not need to resolve whether
the assistant public defender that represented the Plaintiffs in
the chancery action ran afoul of his statutory duties. Even if he
did, any deviation would not make the underlying action void.
Whether a judgment is void or voidable is a matter of jurisdiction.
The circuit court's subject matter jurisdiction did not depend on
the public defender statute or any other statute.
The Plaintiffs' complaint and their requested relief presented a
justiciable matter, giving the circuit court subject matter
jurisdiction. Even if the assistant public defender was not allowed
to represent the Plaintiffs in the chancery division -- a question
the Appellate Court does not decide now -- that deviation from the
statute would not deprive the circuit court of subject matter
jurisdiction. The underlying action was not void ab initio, and
there is no reason to dismiss the appeal.
B. Dismissal under Section 2-619(a)(3) of the Code
The Appellate Court next addresses the Plaintiffs' arguments
relating to dismissal under section 2-619(a)(3) of the Code. The
Plaintiffs contend that an intervenor may not move to dismiss a
complaint under section 2-619(a) of the Code and the chancery
action did not involve the same parties or same cause as the child
protection action.
1. Rights of an Intervenor
The Plaintiffs assert that under section 2-619(a) of the Code, a
defendant may file a motion to dismiss, but an intervenor is not a
defendant. They acknowledge that the Code provides that an
intervenor has all the rights of an original party but contend that
this does not transform an intervenor into a defendant who may be
sued or enjoined. The public guardian states that the matter is
forfeited.
The Appellate Court disagrees. It explains that the parties must
preserve issues or claims for appeal, but they do not need to limit
their arguments on appeal to the same ones that were made. The
Plaintiffs objected to the public guardian's motion for leave to
intervene, and the dismissal of their complaint under section
2-619(a)(3) of the Code. Though the Plaintiffs have not forfeited
the argument that an intervenor may not move to dismiss, it is not
a basis for reversal. Hence, the circuit court properly allowed the
public guardian, as an intervenor, to move to dismiss under section
2-619(a)(3) of the Code.
2. Same Parties and Same Cause
The Plaintiffs next contend that chancery action did not involve
the same parties and same cause as any action in the child
protection division. According to them, DCFS does not have the
status of a party in child protection cases. The Plaintiffs further
assert that the child protection action, which consisted of the
alleged neglect matters that were initiated by petitions for
adjudication of wardship, did not arise from the same transaction
or occurrence as the chancery action, which centered on the harm to
all mothers from the March Action Transmittal. They argue that the
child protection division does not have authority to grant
injunctions against DCFS.
Also, the Plaintiffs' section 1983 count sought to recover for past
actions, including damages, while the emergency motions to compel
visitation in the child protection division were forward-looking
only. The Plaintiffs assert that the various theories of
constitutional liability raised in the chancery complaint would not
be considered in the motions in the child protection division. They
state that even where two actions are for the same cause, a factor
to consider is the absence of a likelihood of obtaining complete
relief in the other jurisdiction.
Based on the information presented to the Appellate Court about the
Plaintiffs' child protection proceedings, it opines that the
circuit court did not abuse its discretion when it dismissed the
chancery complaint. It finds that the circuit court did not need
the actual emergency motions to compel in-person visits to find
that the two actions involved the same parties for the same cause.
The purpose of child protection proceedings and the fact that the
child protection proceedings were ongoing -- though delayed -- was
sufficient for the circuit court's analysis. Ultimately, the
circuit court must weigh the prejudice to the nonmovant if the
section 2-619(a)(3) motion is granted against the policy of
avoiding duplicative litigation.
C. Motion for Leave to Amend the Complaint
Next, the Plaintiffs contend that the circuit court should not have
dismissed the case without considering their motion for leave to
amend the complaint, which added a class action count. They state
that if the court was not aware of the proposed amendment, then
there was a breakdown in communication that warrants vacating the
judgment and reopening the matter so that the amendment can be
considered.
The Appellate Court finds that the Plaintiffs filed a motion for
leave to amend their complaint on May 15, 2020, in between the
hearing on the section 2-619(a)(3) motion and the circuit court's
written order that dismissed the complaint. The record does not
indicate that the circuit court ruled on the motion for leave to
amend. As statede, the party filing a motion is responsible for
requesting that the circuit court rule on it. The Plaintiffs filed
a notice of appeal after filing -- but not obtaining a ruling on --
their motion for leave to amend the complaint. The Plaintiffs
abandoned the motion for leave to amend the complaint and forfeited
any issue related to that motion for purposes of the appeal.
D. Dismissal with Prejudice
Lastly, the Plaintiffs assert that dismissing the chancery
complaint with prejudice was reversible error. They contend that
the complaint was not deficient and should have been dismissed
without prejudice. They further state an amended complaint could
have been filed, noting that the counsel filed the aforementioned
motion for leave to amend the complaint. The Plaintiffs also state
that allegations involving damages could have been amended with
more specificity as the nature and extent of the harm became
clearer.
As stated, the Plaintiffs forfeited any issue related to the motion
for leave to amend the complaint. Still, the complaint should have
been dismissed without prejudice, rather than with prejudice. It
was inconsistent with the purpose and function of section
2-619(a)(3) to dismiss the Plaintiffs' complaint with prejudice.
Pursuant to its power under Illinois Supreme Court Rule 366(a)(5)
(eff. Feb. 1, 1994), the Appellate Court modifies the circuit
court's order so that the complaint is dismissed without prejudice.
As modified, it affirms that order.
III. Conclusion
For the foregoing reasons, the Appellate Court affirmed the
judgment of the circuit court as modified.
A full-text copy of the Court's Jan. 28, 2022 Opinion is available
at https://tinyurl.com/4rts4bss from Leagle.com.
Sharone R. Mitchell Jr., Public Defender, of Chicago, Illinois,
(Suzanne A. Isaacson, Assistant Public Defender, of counsel), for
the Appellants.
Kwame Raoul, Attorney General, of Chicago, Illinois, (Jane Elinor
Notz, Solicitor General, and Bridget DiBattista, Assistant Attorney
General, of counsel), for the Appellees.
Charles P. Golbert -- opg@cookcountyil.gov -- Public Guardian, of
Chicago, Illinois, (Kass A. Plain and Mary Brigid Hayes, of
counsel), for the Intervenors-Appellees.
INSIGHT PRODUCTIONS: Ruling on Misclassification Suit Discussed
---------------------------------------------------------------
Margaret Robbins, Esq., and Paul-Erik Veel, Esq., of Lenczner
Slaght LLP, in an article for Mondaq, report that on October 1,
2020, section 29.1 of the Class Proceedings Act ("CPA") took
effect. This provision, designed to address the phenomenon of class
actions being started and then languishing in the system without
advancement, provides for a mandatory dismissal of an action where,
by the one year anniversary of the claim, the plaintiffs
certification record has not been filed or there is no established
timetable (by consent or Court order). This was a significant
improvement to a class actions system that previously had no real
tool for dealing with class actions that were languishing.
On January 14, 2022, Justice Belobaba issued the first reported
decision interpreting section 29.1 in Bourque v Insight
Productions. In his decision, Justice Belobaba offers a clear
reminder that, sometimes, legislative provisions simply mean what
they say. Despite that direction, the Court's decision is also a
good reminder that sometimes in litigation when the Court closes a
door, it also opens a window.
The proposed class action in this case was commenced on February
21, 2020. The plaintiff sought to certify a class action against a
defendant group of television production companies, alleging that
employees were systematically misclassified as independent
contractors. Section 29.1 of the CPA took effect in October 2020
and, as part of the transition provisions, deemed all class actions
commenced before that date to have commenced on October 1, 2020.
This meant that the proposed representative plaintiff, Anna
Bourque, had until October 1, 2021 to comply with section 29.1.
October 1, 2021 came and went without a timetable or a
certification record. The defendants then moved to dismiss the
action for delay. On October 6, 2021, six days after the one-year
deadline and one day after the defendants brought a motion to
dismiss the case for delay, the plaintiff served her certification
record.
On the motion, the plaintiff argued that, while no formal timetable
was made, there was a discussion during a case management
conference that the plaintiff would serve her certification record
"when she can". The plaintiff argued that this agreement should
suffice to meet the timetable requirement in section 29.1. The
Court disagreed, finding that a vague agreement without any actual
timetable did not cut the mustard and would lead to an
interpretation of section 29.1 that rendered it useless.
The plaintiff also advanced an argument that the CPA must be given
a broad and liberal interpretation and the remedial provisions
giving the Court broad case management powers should be interpreted
to give the plaintiff some latitude in the interpretation of
section 29.1. Justice Belobaba forcefully disagreed, holding that
section 29.1 was a mandatory provision that required that the
action be dismissed if the strict requirements of the section were
not met. The Court directly found that the provision meant exactly
what it said.
Justice Belobaba ultimately applied section 29.1 strictly and
dismissed the plaintiff's claim for delay, specifically noting that
the provision was intended to force class actions to be advanced
rather than moving at a glacial speed. Without being applied
strictly, the provision could not have its intended effect.
However, despite this exacting application of the provision, the
Court did not leave the members of the proposed class without any
available recourse. Justice Belobaba held that the same action
could be filed with a different proposed representative plaintiff.
Likewise, in considering costs to be awarded on the dismissal
motion, Justice Belobaba noted that the parties should consider the
likelihood that the dismissed action would be immediately
reincarnated with a new representative plaintiff when requesting
costs.
The suspension of the limitations period under the CPA after an
action is filed is relevant to Justice Belobaba's comments on the
impact of a dismissal for delay. While the limitations period has
restarted with the dismissal decision, assuming there was some
limitations runway at the time of filing, a new representative
plaintiff could certainly commence a fresh claim.
However, the difficulty with this interpretation of section 29.1 is
that it seems contrary to the policy goals of forcing plaintiffs to
move cases forward. If a new, identical action can be filed after a
dismissal (restarting the one-year clock) and the plaintiff will
face limited costs consequences for failing to advance the original
action, the goal of moving cases forward may not be achieved.
Section 29.1 was intended to deal, at least in part, with orphaned
class actions which sit on the Court's docket without ever moving
forward. It is a more complicated strategic question for defendants
where a class action has not moved expeditiously enough but it
seems likely that the identical case will simply be refiled if the
defendants move to dismiss for delay.
It is not clear at this juncture whether the proposed class in this
case will in fact take Justice Belobaba's invitation to refile the
action. But the case serves as a reminder to defence counsel that,
while the statute might mean what it says, that does not mean that
a dismissed case is, in fact, a finished case. It is also, as
Justice Belobaba notes, a good reminder for plaintiff's counsel to
fire up their tickler systems to either move their cases forward
before the one-year mark or to start looking for new representative
plaintiffs. [GN]
INTERNEWS NETWORK: Data Breach Prompts Investigation into Lawsuit
-----------------------------------------------------------------
The law firm of Console & Associates, P.C. announced that it will
be investigating the recent Internews Network data breach to
determine what legal remedies, if any, will be available to
consumers affected by the breach. If it turns out that Internews
Network failed to adequately protect individuals' sensitive data
from unauthorized access, the company may be financially liable to
individuals whose information was compromised as a result of the
breach.
Learn more about the data breach at:
https://www.myinjuryattorney.com/data-breach-alert-internews-network/.
A data breach occurs when an unauthorized party gains access to a
company's computer networks and the consumer data these networks
contain. These security incidents often result from a person
hacking into a company's network to remove data or install harmful
software on the network.
While a data breach doesn't necessarily mean that the information
obtained will be used for criminal purposes, one of the most common
reasons hackers conduct cyberattacks is to obtain information that
can later be used to commit identity theft.
Often, the data accessed through a breach is either retained by the
party orchestrating the cyberattack or sold to another party. In
either case, there is no way to be sure what the party in
possession of the information plans to do with it, and affected
consumers are at an increased risk of experiencing identity theft
or other financial losses.
The investigation into the breach is ongoing, but this
cybersecurity incident raises serious concerns about the company's
efforts to safely store and maintain sensitive consumer data. If it
turns out that Internews Network has in some way mishandled or
failed to protect consumer data, affected parties may be eligible
for financial compensation through a data breach class action
lawsuit.
Attorney Richard Console explains, "It's easy to place all the
blame for a data breach on the person who hacks into an
organization's system; however, this ignores the legal and moral
obligation that these companies owe to customers. When someone
gives a company their business, they trust that the information in
the organization's possession will remain private-and out of the
hands of criminals. While protecting consumer data requires a
business to undergo some effort and expense, in our current
environment of widespread hacking, this is a cost of doing business
that all organizations must take seriously."
According to Internews Network's data privacy incident notice, the
company reported that it had experienced a data security event
between October 2015 and December 2021. However, many details about
the breach are not yet known, including how the hacker may be
intending to use the data that was breached. Further investigation
ultimately revealed that the sensitive information of approximately
10,637 individuals was compromised.
The compromised information may have included individuals':
Name
Social Security number
Date of birth
On January 28, 2022, the company sent out data breach notifications
to all affected parties, informing them of the breach and what they
can do to protect themselves. Those receiving a data breach letter
from Internews Network should take the following steps:
Carefully review the entire letter;
Retain a copy of the data breach notification letter;
Enroll in any free credit monitoring or identity fraud protection
service provided by the company involved in the security incident;
Change all passwords and security questions to online accounts;
Frequently review all credit card and bank account statements for
any signs of fraud or unauthorized activity;
Monitor credit reports for any unexpected changes or signs of
identity theft;
Contact a credit bureau to request a temporary fraud alert; and
Notify all banks and credit card companies of the data breach.
Consumers can reach Console & Associates, P.C. through the firm's
website at https://www.myinjuryattorney.com/contact-us/.
Console & Associates P.C. is dedicated to protecting consumers'
privacy interests. The firm investigates all types of data
breaches, ransomware attacks, and other network intrusions to
determine the legal rights of consumers who trusted corporations
with their sensitive information. For more information, interested
parties may visit
https://www.myinjuryattorney.com/consumer-privacy-data-breach-lawyers/.
[GN]
JAMES FINLAY: Kenyan Workers Win Right to Negligence Class Action
-----------------------------------------------------------------
Maritn Williams, writing for The Herald, reports that
representatives of hundreds of Kenyan plantation workers have won a
bid to take a multi-million-pound negligence action against a
Scottish tea firm.
Aberdeen-based tea company James Finlay (Kenya) Ltd, which supplies
Tesco and Sainsbury's, has said in its defence to concerns that no
decisions about the working environment in Kenya are taken in
Scotland.
But Lord Weir in the Court of Session has accepted that workers had
a prima facie case and allowed the class action to be heard.
It comes as the tea company, which can trace its roots back to
Scotland in the 18th century, is separately coming under scrutiny
in Kenya over claims of exploiting tea-pickers with low rates of
pay.
The landmark lawsuit against the Scottish firm argues that workers
were exposed to conditions that would clearly be harmful, resulting
in permanently damage to their spines.
In the allegations, the Kenyan workers claim there was a routine
practice of company representatives administering pain-killing
drugs to employees who requested them without asking why they
needed them.
James Finlay had said the action does not meet the requirements of
Scotland's rules on group litigation proceedings and should be
dealt with in Kenya.
Lord Weir has now said that it was not suitable to have a
representative of Scottish law firm Thompsons Solicitors to become
the representative party on behalf of the tea pickers in the Court
of Session claim.
But he said he believed there was a prima facie case to allow group
proceedings.
Andrew Smith QC said that that they would seek alternatives to lead
the claim saying it could be either current or former employees.
Lord Weir said that the positions of legal representatives and
those pursuing the claim should be "separate and distinct".
"In principal, and subject to clarification on the matter of the
representative party, I am satisfied that the criteria for granting
[the class action] are met," he said.
He said the claim "adequately identify issues arising from common
working practices, allegedly giving rise to musculoskeletal
injuries and the content of [James Finlay's] duty of care... which
not only give rise at least to a prima facie case, but which are
also sufficiently similar to justify the granting of permission".
He said it would be a more efficient administration of justice for
the claims to be brought as group proceedings rather than by
separate individual proceedings. But Lord Weir explained there was
no legal authority in any juridisdiction where permission was
granted to allow a member of the law firm which is pursuing the
case to also act as a class action representative party.
He referred to Canadian cases where the court was concerned about
the potential for "conflict of interest and the appearance of
impropriety" arising from the possibility that decisions made by a
representative party in group proceedings would be influenced by
their financial interest as a member of the firm acting in those
proceedings.
James Finlay's estates in Kericho, Kenya, stretch across almost
25,000 acres. It supplies big brands including Tesco, Sainsbury's,
Starbucks, the Co-op and Bettys & Taylors Group
He added: "I wish to make it clear that I impute absolutely no
impropriety on the part of the applicant, in putting himself
forward as a representative party, far from it.
"But the broader concern I've mentioned is legitimate and no less
relevant to group proceedings in this jurisdiction, which are
themselves in their procedural infancy.
"The concern arises in the circumstances of this application, from
the apparent blurring of the distinction between a party and its
advisors, and the improbable consequence that the applicant would
be issuing instructions as a representative party to itself on
matters relating to the progress of the group proceedings.
"I take leave to doubt whether that was what the Scottish civil
courts review had in mind, in its consideration of a role for
representative bodies in group proceedings."
Mr Smith said the judge had provided "careful reasoning" that would
be helpful for other group proceedings.
Ronald Onyango, a Kenyan-born British lawyer, has said the number
of people involved in the case could rise to 1,500 if it is allowed
to proceed.
The court has previously been told that tea-pickers typically got
paid just £25 a week for up to 12 hours in a six-day week and
expected to carry up to two stones (12 kilos) of the pickings on
their back for over half a mile of rough and hilly ground and
slopes. In some "extraordinarily" instances, they were expected to
collect up to five stones (30kg) of tea in a day or not get paid.
It is alleged this gave rise to tripping and falling while carrying
the pickings baskets and also prolonged the bending, twisting and
reaching required in gathering the tea.
And it is claimed in evidence that, had similar working conditions
existed in the UK, it was likely the company would have been shut
down instantaneously by the Health and Safety Executive.
Legal representatives for the workers say: "It was reasonably
foreseeable to a Scottish-based employer that this was a recipe for
disaster. And we say that disaster manifested."
Tea harvested by the workers on James Finlay plantations is stocked
by many big brands including Tesco, Sainsbury's, Starbucks, the
Co-op and Bettys & Taylors Group.
James Finlay's estates in Kericho stretch across almost 25,000
acres -- the size of Cardiff -- and include a Fair Trade-certified
factory and farm. The company started up in 1750 as a Glasgow
cotton trader and specialises in growing and processing tea and
coffee around the world and is now part of global giant, the Swire
Group, which has farms and factories in Kenya, Sri Lanka,
Argentina, and China.
In order to examine seven original claimants in the case, a
professor of orthopedics from Edinburgh travelled to Kenya where
the tea farms operate. The professor found evidence of injury to
workers' spines, ageing their backs by as much as 20 years.
The case was filed in Scotland by a human rights-focused Nairobi
law firm in Nairobi, Ronald K Onyango Advocates, and its Scottish
agents, Thompsons.
James Finlay had argued that any claims should be dealt with by the
courts in Kenya, not the Court of Session in Scotland.
It has defended its record on health and safety and says it makes a
major contribution to the economy of the Kericho region in Kenya,
where it has 10,300 hectares (25,500 acres) of tea fields and
employs more than 7,000 people. [GN]
JUUL LABS: Alliance City Sues Over Deceptive E-Cigarette Youth Ads
------------------------------------------------------------------
ALLIANCE CITY SCHOOL DISTRICT, on behalf of itself and all others
similarly situated, Plaintiff v. JUUL LABS, INC. F/K/A PAX LABS,
INC.; JAMES MONSEES; ADAM BOWEN; NICHOLAS PRITZKER; HOYOUNG HUH;
RIAZ VALANI; ALTRIA GROUP, INC.; ALTRIA CLIENT SERVICES LLC; ALTRIA
GROUP DISTRIBUTION COMPANY; and PHILIP MORRIS USA, INC.,
Defendants, Case No. 3:22-cv-00709 (N.D. Cal., February 3, 2022) is
a class action against the Defendants for negligence, gross
negligence, and violations of Public Nuisance Law and the Racketeer
Influenced and Corrupt Organizations Act.
According to the complaint, the Defendants used three tactics to
maintain market dominance in the cigarette industry: (1) product
design to maximize addiction, (2) mass deception, and (3) targeting
of youth. Defendants JUUL Labs and Adam Bowen designed an
e-cigarette device allegedly intended to create and sustain
addiction, but without the stigma associated with cigarettes and
promoted them to vulnerable young population. JUUL Labs and other
Defendants developed and implemented a marketing scheme to mislead
users into believing that JUUL products contained less nicotine
than they actually do and were healthy and safe. The Defendants
enticed newcomers to nicotine with kid-friendly flavors without
ensuring the flavoring additives were safe for inhalation. The
Defendants targeted the youth market by placing vaporized campaigns
on youth-oriented websites and media and using influencers and
affiliates to amplify their message to a teenage audience. The
Defendants have successfully caused more young people to start
using e-cigarettes, creating a youth e-cigarette epidemic and
public health crisis, says the suit.
Alliance City School District is a unified school district with its
offices located at 200 Glamorgan Street in Alliance, Ohio.
JUUL Labs, Inc., formerly known as Pax Labs, Inc., is an American
electronic cigarette company, with its principal place of business
in San Francisco, California.
Altria Group, Inc. is a producer of tobacco products, with its
principal place of business in Richmond, Virginia.
Philip Morris USA, Inc. is a wholly-owned subsidiary of Altria
Group, Inc., with its principal place of business in Richmond,
Virginia.
Altria Client Services LLC is a tobacco company, with its principal
place of business in Richmond, Virginia.
Altria Group Distribution Company is a tobacco company, with its
principal place of business in Richmond, Virginia. [BN]
The Plaintiff is represented by:
James Frantz, Esq.
William B. Shinoff, Esq.
FRANTZ LAW GROUP, APLC
402 W. Broadway, Ste. 860
San Diego, CA 92101
Telephone: (619) 233-5945
Facsimile: (619) 525-7672
E-mail: jpf@frantzlawgroup.com
wshinoff@frantzlawgroup.com
JUUL LABS: Auburn Career Sues Over E-Cigarette Campaign to Youth
----------------------------------------------------------------
AUBURN CAREER CENTER, on behalf of itself and all others similarly
situated, Plaintiff v. JUUL LABS, INC. F/K/A PAX LABS, INC.; JAMES
MONSEES; ADAM BOWEN; NICHOLAS PRITZKER; HOYOUNG HUH; RIAZ VALANI;
ALTRIA GROUP, INC.; ALTRIA CLIENT SERVICES LLC; ALTRIA GROUP
DISTRIBUTION COMPANY; and PHILIP MORRIS USA, INC., Defendants, Case
No. 3:22-cv-00725 (N.D. Cal., February 3, 2022) is a class action
against the Defendants for negligence, gross negligence, and
violations of Public Nuisance Law and the Racketeer Influenced and
Corrupt Organizations Act.
According to the complaint, the Defendants used three tactics to
maintain market dominance in the cigarette industry: (1) product
design to maximize addiction, (2) mass deception, and (3) targeting
of youth. Defendants JUUL Labs and Adam Bowen designed an
e-cigarette device allegedly intended to create and sustain
addiction, but without the stigma associated with cigarettes and
promoted them to vulnerable young population. JUUL Labs and other
Defendants developed and implemented a marketing scheme to mislead
users into believing that JUUL products contained less nicotine
than they actually do and were healthy and safe. The Defendants
enticed newcomers to nicotine with kid-friendly flavors without
ensuring the flavoring additives were safe for inhalation. The
Defendants targeted the youth market by placing vaporized campaigns
on youth-oriented websites and media and using influencers and
affiliates to amplify their message to a teenage audience. The
Defendants have successfully caused more young people to start
using e-cigarettes, creating a youth e-cigarette epidemic and
public health crisis, says the suit.
Auburn Career Center is a vocational school district with its
offices located on 8167 Auburn Road in Lake County, Ohio.
JUUL Labs, Inc., formerly known as Pax Labs, Inc., is an American
electronic cigarette company, with its principal place of business
in San Francisco, California.
Altria Group, Inc. is a producer of tobacco products, with its
principal place of business in Richmond, Virginia.
Philip Morris USA, Inc. is a wholly-owned subsidiary of Altria
Group, Inc., with its principal place of business in Richmond,
Virginia.
Altria Client Services LLC is a tobacco company, with its principal
place of business in Richmond, Virginia.
Altria Group Distribution Company is a tobacco company, with its
principal place of business in Richmond, Virginia. [BN]
The Plaintiff is represented by:
James Frantz, Esq.
William B. Shinoff, Esq.
FRANTZ LAW GROUP, APLC
402 W. Broadway, Ste. 860
San Diego, CA 92101
Telephone: (619) 233-5945
Facsimile: (619) 525-7672
E-mail: jpf@frantzlawgroup.com
wshinoff@frantzlawgroup.com
JUUL LABS: Brasher Falls Sues Over Youth's E-Cigarette Addiction
----------------------------------------------------------------
BRASHER FALLS CENTRAL SCHOOL DISTRICT, on behalf of itself and all
others similarly situated, Plaintiff v. JUUL LABS, INC. F/K/A PAX
LABS, INC.; JAMES MONSEES; ADAM BOWEN; NICHOLAS PRITZKER; HOYOUNG
HUH; RIAZ VALANI; ALTRIA GROUP, INC.; ALTRIA CLIENT SERVICES LLC;
ALTRIA GROUP DISTRIBUTION COMPANY; and PHILIP MORRIS USA, INC.,
Defendants, Case No. 3:22-cv-00720 (N.D. Cal., February 3, 2022) is
a class action against the Defendants for negligence, gross
negligence, and violations of Public Nuisance Law and the Racketeer
Influenced and Corrupt Organizations Act.
According to the complaint, the Defendants used three tactics to
maintain market dominance in the cigarette industry: (1) product
design to maximize addiction, (2) mass deception, and (3) targeting
of youth. Defendants JUUL Labs and Adam Bowen designed an
e-cigarette device allegedly intended to create and sustain
addiction, but without the stigma associated with cigarettes and
promoted them to vulnerable young population. JUUL Labs and other
Defendants developed and implemented a marketing scheme to mislead
users into believing that JUUL products contained less nicotine
than they actually do and were healthy and safe. The Defendants
enticed newcomers to nicotine with kid-friendly flavors without
ensuring the flavoring additives were safe for inhalation. The
Defendants targeted the youth market by placing vaporized campaigns
on youth-oriented websites and media and using influencers and
affiliates to amplify their message to a teenage audience. The
Defendants have successfully caused more young people to start
using e-cigarettes, creating a youth e-cigarette epidemic and
public health crisis, the suit asserts.
Brasher Falls Central School District is a unified school district
with its offices located at 1039 State Highway 11C in Brasher
Falls, New York.
JUUL Labs, Inc., formerly known as Pax Labs, Inc., is an American
electronic cigarette company, with its principal place of business
in San Francisco, California.
Altria Group, Inc. is a producer of tobacco products, with its
principal place of business in Richmond, Virginia.
Philip Morris USA, Inc. is a wholly-owned subsidiary of Altria
Group, Inc., with its principal place of business in Richmond,
Virginia.
Altria Client Services LLC is a tobacco company, with its principal
place of business in Richmond, Virginia.
Altria Group Distribution Company is a tobacco company, with its
principal place of business in Richmond, Virginia. [BN]
The Plaintiff is represented by:
James Frantz, Esq.
William B. Shinoff, Esq.
FRANTZ LAW GROUP, APLC
402 W. Broadway, Ste. 860
San Diego, CA 92101
Telephone: (619) 233-5945
Facsimile: (619) 525-7672
E-mail: jpf@frantzlawgroup.com
wshinoff@frantzlawgroup.com
JUUL LABS: Burr Oak Sues Over Youth Health Crisis in Michigan
-------------------------------------------------------------
BURR OAK COMMUNITY SCHOOLS, on behalf of itself and all others
similarly situated, Plaintiff v. JUUL LABS, INC. F/K/A PAX LABS,
INC.; JAMES MONSEES; ADAM BOWEN; NICHOLAS PRITZKER; HOYOUNG HUH;
RIAZ VALANI; ALTRIA GROUP, INC.; ALTRIA CLIENT SERVICES LLC; ALTRIA
GROUP DISTRIBUTION COMPANY; and PHILIP MORRIS USA, INC.,
Defendants, Case No. 3:22-cv-00732 (N.D. Cal., February 3, 2022) is
a class action against the Defendants for negligence, gross
negligence, and violations of Public Nuisance Law and the Racketeer
Influenced and Corrupt Organizations Act.
According to the complaint, the Defendants used three tactics to
maintain market dominance in the cigarette industry: (1) product
design to maximize addiction, (2) mass deception, and (3) targeting
of youth. Defendants JUUL Labs and Adam Bowen designed an
e-cigarette device allegedly intended to create and sustain
addiction, but without the stigma associated with cigarettes and
promoted them to vulnerable young population. JUUL Labs and other
Defendants developed and implemented a marketing scheme to mislead
users into believing that JUUL products contained less nicotine
than they actually do and were healthy and safe. The Defendants
enticed newcomers to nicotine with kid-friendly flavors without
ensuring the flavoring additives were safe for inhalation. The
Defendants targeted the youth market by placing vaporized campaigns
on youth-oriented websites and media and using influencers and
affiliates to amplify their message to a teenage audience. The
Defendants have successfully caused more young people to start
using e-cigarettes, creating a youth e-cigarette epidemic and
public health crisis, the suit says.
Burr Oak Community Schools is a unified school district with its
offices located at 326 Eagle Street, Burr Oak, Michigan.
JUUL Labs, Inc., formerly known as Pax Labs, Inc., is an American
electronic cigarette company, with its principal place of business
in San Francisco, California.
Altria Group, Inc. is a producer of tobacco products, with its
principal place of business in Richmond, Virginia.
Philip Morris USA, Inc. is a wholly-owned subsidiary of Altria
Group, Inc., with its principal place of business in Richmond,
Virginia.
Altria Client Services LLC is a tobacco company, with its principal
place of business in Richmond, Virginia.
Altria Group Distribution Company is a tobacco company, with its
principal place of business in Richmond, Virginia. [BN]
The Plaintiff is represented by:
James Frantz, Esq.
William B. Shinoff, Esq.
FRANTZ LAW GROUP, APLC
402 W. Broadway, Ste. 860
San Diego, CA 92101
Telephone: (619) 233-5945
Facsimile: (619) 525-7672
E-mail: jpf@frantzlawgroup.com
wshinoff@frantzlawgroup.com
JUUL LABS: Cache County Sues Over Deceptive E-Cigarette Youth Ads
-----------------------------------------------------------------
CACHE COUNTY SCHOOL DISTRICT, on behalf of itself and all others
similarly situated, Plaintiff v. JUUL LABS, INC. F/K/A PAX LABS,
INC.; JAMES MONSEES; ADAM BOWEN; NICHOLAS PRITZKER; HOYOUNG HUH;
RIAZ VALANI; ALTRIA GROUP, INC.; ALTRIA CLIENT SERVICES LLC; ALTRIA
GROUP DISTRIBUTION COMPANY; and PHILIP MORRIS USA, INC.,
Defendants, Case No. 3:22-cv-00660 (N.D. Cal., February 1, 2022) is
a class action against the Defendants for negligence, gross
negligence, and violations of Public Nuisance Law and the Racketeer
Influenced and Corrupt Organizations Act.
According to the complaint, the Defendants used three tactics to
maintain market dominance in the cigarette industry: (1) product
design to maximize addiction, (2) mass deception, and (3) targeting
of youth. Defendants JUUL Labs and Adam Bowen designed an
e-cigarette device allegedly intended to create and sustain
addiction, but without the stigma associated with cigarettes and
promoted them to vulnerable young population. JUUL Labs and other
Defendants developed and implemented a marketing scheme to mislead
users into believing that JUUL products contained less nicotine
than they actually do and were healthy and safe. The Defendants
enticed newcomers to nicotine with kid-friendly flavors without
ensuring the flavoring additives were safe for inhalation. The
Defendants targeted the youth market by placing vaporized campaigns
on youth-oriented websites and media and using influencers and
affiliates to amplify their message to a teenage audience. The
Defendants have successfully caused more young people to start
using e-cigarettes, creating a youth e-cigarette epidemic and
public health crisis, says the suit.
Cache County School District is a unified school district with its
offices located at 84 East 2400 North in Logan, Utah.
JUUL Labs, Inc., formerly known as Pax Labs, Inc., is an American
electronic cigarette company, with its principal place of business
in San Francisco, California.
Altria Group, Inc. is a producer of tobacco products, with its
principal place of business in Richmond, Virginia.
Philip Morris USA, Inc. is a wholly-owned subsidiary of Altria
Group, Inc., with its principal place of business in Richmond,
Virginia.
Altria Client Services LLC is a tobacco company, with its principal
place of business in Richmond, Virginia.
Altria Group Distribution Company is a tobacco company, with its
principal place of business in Richmond, Virginia. [BN]
The Plaintiff is represented by:
James Frantz, Esq.
William B. Shinoff, Esq.
FRANTZ LAW GROUP, APLC
402 W. Broadway, Ste. 860
San Diego, CA 92101
Telephone: (619) 233-5945
Facsimile: (619) 525-7672
E-mail: jpf@frantzlawgroup.com
wshinoff@frantzlawgroup.com
JUUL LABS: Causes Youth E-Cigarette Crisis, Hartford Suit Claims
----------------------------------------------------------------
HARTFORD PUBLIC SCHOOLS, on behalf of itself and all others
similarly situated, Plaintiff v. JUUL LABS, INC. F/K/A PAX LABS,
INC.; JAMES MONSEES; ADAM BOWEN; NICHOLAS PRITZKER; HOYOUNG HUH;
RIAZ VALANI; ALTRIA GROUP, INC.; ALTRIA CLIENT SERVICES LLC; ALTRIA
GROUP DISTRIBUTION COMPANY; and PHILIP MORRIS USA, INC.,
Defendants, Case No. 3:22-cv-00715 (N.D. Cal., February 3, 2022) is
a class action against the Defendants for negligence, gross
negligence, and violations of Public Nuisance Law and the Racketeer
Influenced and Corrupt Organizations Act.
According to the complaint, the Defendants used three tactics to
maintain market dominance in the cigarette industry: (1) product
design to maximize addiction, (2) mass deception, and (3) targeting
of youth. Defendants JUUL Labs and Adam Bowen designed an
e-cigarette device allegedly intended to create and sustain
addiction, but without the stigma associated with cigarettes and
promoted them to vulnerable young population. JUUL Labs and other
Defendants developed and implemented a marketing scheme to mislead
users into believing that JUUL products contained less nicotine
than they actually do and were healthy and safe. The Defendants
enticed newcomers to nicotine with kid-friendly flavors without
ensuring the flavoring additives were safe for inhalation. The
Defendants targeted the youth market by placing vaporized campaigns
on youth-oriented websites and media and using influencers and
affiliates to amplify their message to a teenage audience. The
Defendants have successfully caused more young people to start
using e-cigarettes, creating a youth e-cigarette epidemic and
public health crisis, the suit asserts.
Hartford Public Schools is a unified school district with its
offices located at 115 School Street in Hartford, Michigan.
JUUL Labs, Inc., formerly known as Pax Labs, Inc., is an American
electronic cigarette company, with its principal place of business
in San Francisco, California.
Altria Group, Inc. is a producer of tobacco products, with its
principal place of business in Richmond, Virginia.
Philip Morris USA, Inc. is a wholly-owned subsidiary of Altria
Group, Inc., with its principal place of business in Richmond,
Virginia.
Altria Client Services LLC is a tobacco company, with its principal
place of business in Richmond, Virginia.
Altria Group Distribution Company is a tobacco company, with its
principal place of business in Richmond, Virginia. [BN]
The Plaintiff is represented by:
James Frantz, Esq.
William B. Shinoff, Esq.
FRANTZ LAW GROUP, APLC
402 W. Broadway, Ste. 860
San Diego, CA 92101
Telephone: (619) 233-5945
Facsimile: (619) 525-7672
E-mail: jpf@frantzlawgroup.com
wshinoff@frantzlawgroup.com
JUUL LABS: Daggett School Sues Over Youth's E-Cigarette Addiction
-----------------------------------------------------------------
DAGGETT SCHOOL DISTRICT, on behalf of itself and all others
similarly situated, Plaintiff v. JUUL LABS, INC. F/K/A PAX LABS,
INC.; JAMES MONSEES; ADAM BOWEN; NICHOLAS PRITZKER; HOYOUNG HUH;
RIAZ VALANI; ALTRIA GROUP, INC.; ALTRIA CLIENT SERVICES LLC; ALTRIA
GROUP DISTRIBUTION COMPANY; and PHILIP MORRIS USA, INC.,
Defendants, Case No. 3:22-cv-00663 (N.D. Cal., February 1, 2022) is
a class action against the Defendants for negligence, gross
negligence, and violations of Public Nuisance Law and the Racketeer
Influenced and Corrupt Organizations Act.
According to the complaint, the Defendants used three tactics to
maintain market dominance in the cigarette industry: (1) product
design to maximize addiction, (2) mass deception, and (3) targeting
of youth. Defendants JUUL Labs and Adam Bowen designed an
e-cigarette device allegedly intended to create and sustain
addiction, but without the stigma associated with cigarettes and
promoted them to vulnerable young population. JUUL Labs and other
Defendants developed and implemented a marketing scheme to mislead
users into believing that JUUL products contained less nicotine
than they actually do and were healthy and safe. The Defendants
enticed newcomers to nicotine with kid-friendly flavors without
ensuring the flavoring additives were safe for inhalation. The
Defendants targeted the youth market by placing vaporized campaigns
on youth-oriented websites and media and using influencers and
affiliates to amplify their message to a teenage audience. The
Defendants have successfully caused more young people to start
using e-cigarettes, creating a youth e-cigarette epidemic and
public health crisis, says the suit.
Daggett School District is a unified school district with its
offices located at 196 West 200 North in Manila, Utah.
JUUL Labs, Inc., formerly known as Pax Labs, Inc., is an American
electronic cigarette company, with its principal place of business
in San Francisco, California.
Altria Group, Inc. is a producer of tobacco products, with its
principal place of business in Richmond, Virginia.
Philip Morris USA, Inc. is a wholly-owned subsidiary of Altria
Group, Inc., with its principal place of business in Richmond,
Virginia.
Altria Client Services LLC is a tobacco company, with its principal
place of business in Richmond, Virginia.
Altria Group Distribution Company is a tobacco company, with its
principal place of business in Richmond, Virginia. [BN]
The Plaintiff is represented by:
James Frantz, Esq.
William B. Shinoff, Esq.
FRANTZ LAW GROUP, APLC
402 W. Broadway, Ste. 860
San Diego, CA 92101
Telephone: (619) 233-5945
Facsimile: (619) 525-7672
E-mail: jpf@frantzlawgroup.com
wshinoff@frantzlawgroup.com
JUUL LABS: Davis Sues Over Youth E-Cigarette Campaign in Utah
-------------------------------------------------------------
DAVIS SCHOOL DISTRICT, on behalf of itself and all others similarly
situated, Plaintiff v. JUUL LABS, INC. F/K/A PAX LABS, INC.; JAMES
MONSEES; ADAM BOWEN; NICHOLAS PRITZKER; HOYOUNG HUH; RIAZ VALANI;
ALTRIA GROUP, INC.; ALTRIA CLIENT SERVICES LLC; ALTRIA GROUP
DISTRIBUTION COMPANY; and PHILIP MORRIS USA, INC., Defendants, Case
No. 3:22-cv-00661 (N.D. Cal., February 1, 2022) is a class action
against the Defendants for negligence, gross negligence, and
violations of Public Nuisance Law and the Racketeer Influenced and
Corrupt Organizations Act.
According to the complaint, the Defendants used three tactics to
maintain market dominance in the cigarette industry: (1) product
design to maximize addiction, (2) mass deception, and (3) targeting
of youth. Defendants JUUL Labs and Adam Bowen designed an
e-cigarette device allegedly intended to create and sustain
addiction, but without the stigma associated with cigarettes and
promoted them to vulnerable young population. JUUL Labs and other
Defendants developed and implemented a marketing scheme to mislead
users into believing that JUUL products contained less nicotine
than they actually do and were healthy and safe. The Defendants
enticed newcomers to nicotine with kid-friendly flavors without
ensuring the flavoring additives were safe for inhalation. The
Defendants targeted the youth market by placing vaporized campaigns
on youth-oriented websites and media and using influencers and
affiliates to amplify their message to a teenage audience. The
Defendants have successfully caused more young people to start
using e-cigarettes, creating a youth e-cigarette epidemic and
public health crisis, the suit says.
Davis School District is a unified school district with its offices
located at 45 East State Street in Farmington, Utah.
JUUL Labs, Inc., formerly known as Pax Labs, Inc., is an American
electronic cigarette company, with its principal place of business
in San Francisco, California.
Altria Group, Inc. is a producer of tobacco products, with its
principal place of business in Richmond, Virginia.
Philip Morris USA, Inc. is a wholly-owned subsidiary of Altria
Group, Inc., with its principal place of business in Richmond,
Virginia.
Altria Client Services LLC is a tobacco company, with its principal
place of business in Richmond, Virginia.
Altria Group Distribution Company is a tobacco company, with its
principal place of business in Richmond, Virginia. [BN]
The Plaintiff is represented by:
James Frantz, Esq.
William B. Shinoff, Esq.
FRANTZ LAW GROUP, APLC
402 W. Broadway, Ste. 860
San Diego, CA 92101
Telephone: (619) 233-5945
Facsimile: (619) 525-7672
E-mail: jpf@frantzlawgroup.com
wshinoff@frantzlawgroup.com
JUUL LABS: E-Cigarette Ads Target Youth, Cedar Springs Suit Says
----------------------------------------------------------------
CEDAR SPRINGS PUBLIC SCHOOLS, on behalf of itself and all others
similarly situated, Plaintiff v. JUUL LABS, INC. F/K/A PAX LABS,
INC.; JAMES MONSEES; ADAM BOWEN; NICHOLAS PRITZKER; HOYOUNG HUH;
RIAZ VALANI; ALTRIA GROUP, INC.; ALTRIA CLIENT SERVICES LLC; ALTRIA
GROUP DISTRIBUTION COMPANY; and PHILIP MORRIS USA, INC.,
Defendants, Case No. 3:22-cv-00731 (N.D. Cal., February 3, 2022) is
a class action against the Defendants for negligence, gross
negligence, and violations of Public Nuisance Law and the Racketeer
Influenced and Corrupt Organizations Act.
According to the complaint, the Defendants used three tactics to
maintain market dominance in the cigarette industry: (1) product
design to maximize addiction, (2) mass deception, and (3) targeting
of youth. Defendants JUUL Labs and Adam Bowen designed an
e-cigarette device allegedly intended to create and sustain
addiction, but without the stigma associated with cigarettes and
promoted them to vulnerable young population. JUUL Labs and other
Defendants developed and implemented a marketing scheme to mislead
users into believing that JUUL products contained less nicotine
than they actually do and were healthy and safe. The Defendants
enticed newcomers to nicotine with kid-friendly flavors without
ensuring the flavoring additives were safe for inhalation. The
Defendants targeted the youth market by placing vaporized campaigns
on youth-oriented websites and media and using influencers and
affiliates to amplify their message to a teenage audience. The
Defendants have successfully caused more young people to start
using e-cigarettes, creating a youth e-cigarette epidemic and
public health crisis, says the suit.
Cedar Springs Public Schools is a unified school district with its
offices located at 204 East Muskegon Street in Cedar Springs,
Michigan.
JUUL Labs, Inc., formerly known as Pax Labs, Inc., is an American
electronic cigarette company, with its principal place of business
in San Francisco, California.
Altria Group, Inc. is a producer of tobacco products, with its
principal place of business in Richmond, Virginia.
Philip Morris USA, Inc. is a wholly-owned subsidiary of Altria
Group, Inc., with its principal place of business in Richmond,
Virginia.
Altria Client Services LLC is a tobacco company, with its principal
place of business in Richmond, Virginia.
Altria Group Distribution Company is a tobacco company, with its
principal place of business in Richmond, Virginia. [BN]
The Plaintiff is represented by:
James Frantz, Esq.
William B. Shinoff, Esq.
FRANTZ LAW GROUP, APLC
402 W. Broadway, Ste. 860
San Diego, CA 92101
Telephone: (619) 233-5945
Facsimile: (619) 525-7672
E-mail: jpf@frantzlawgroup.com
wshinoff@frantzlawgroup.com
JUUL LABS: E-Cigarette Ads Target Youth, Duchesne County Suit Says
------------------------------------------------------------------
DUCHESNE COUNTY SCHOOL DISTRICT, on behalf of itself and all others
similarly situated, Plaintiff v. JUUL LABS, INC. F/K/A PAX LABS,
INC.; JAMES MONSEES; ADAM BOWEN; NICHOLAS PRITZKER; HOYOUNG HUH;
RIAZ VALANI; ALTRIA GROUP, INC.; ALTRIA CLIENT SERVICES LLC; ALTRIA
GROUP DISTRIBUTION COMPANY; and PHILIP MORRIS USA, INC.,
Defendants, Case No. 3:22-cv-00664-WHO (N.D. Cal., February 1,
2022) is a class action against the Defendants for negligence,
gross negligence, and violations of Public Nuisance Law and the
Racketeer Influenced and Corrupt Organizations Act.
According to the complaint, the Defendants used three tactics to
maintain market dominance in the cigarette industry: (1) product
design to maximize addiction, (2) mass deception, and (3) targeting
of youth. Defendants JUUL Labs and Adam Bowen designed an
e-cigarette device allegedly intended to create and sustain
addiction, but without the stigma associated with cigarettes and
promoted them to vulnerable young population. JUUL Labs and other
Defendants developed and implemented a marketing scheme to mislead
users into believing that JUUL products contained less nicotine
than they actually do and were healthy and safe. The Defendants
enticed newcomers to nicotine with kid-friendly flavors without
ensuring the flavoring additives were safe for inhalation. The
Defendants targeted the youth market by placing vaporized campaigns
on youth-oriented websites and media and using influencers and
affiliates to amplify their message to a teenage audience. The
Defendants have successfully caused more young people to start
using e-cigarettes, creating a youth e-cigarette epidemic and
public health crisis, says the suit.
Duchesne County School District is a unified school district with
its offices located at 1010 East 200 North in Roosevelt, Utah.
JUUL Labs, Inc., formerly known as Pax Labs, Inc., is an American
electronic cigarette company, with its principal place of business
in San Francisco, California.
Altria Group, Inc. is a producer of tobacco products, with its
principal place of business in Richmond, Virginia.
Philip Morris USA, Inc. is a wholly-owned subsidiary of Altria
Group, Inc., with its principal place of business in Richmond,
Virginia.
Altria Client Services LLC is a tobacco company, with its principal
place of business in Richmond, Virginia.
Altria Group Distribution Company is a tobacco company, with its
principal place of business in Richmond, Virginia. [BN]
The Plaintiff is represented by:
James Frantz, Esq.
William B. Shinoff, Esq.
FRANTZ LAW GROUP, APLC
402 W. Broadway, Ste. 860
San Diego, CA 92101
Telephone: (619) 233-5945
Facsimile: (619) 525-7672
E-mail: jpf@frantzlawgroup.com
wshinoff@frantzlawgroup.com
JUUL LABS: E-Cigarette Triggers Youth Health Crisis, Paterson Says
------------------------------------------------------------------
PATERSON PUBLIC SCHOOLS, on behalf of itself and all others
similarly situated, Plaintiff v. JUUL LABS, INC. F/K/A PAX LABS,
INC.; JAMES MONSEES; ADAM BOWEN; NICHOLAS PRITZKER; HOYOUNG HUH;
RIAZ VALANI; ALTRIA GROUP, INC.; ALTRIA CLIENT SERVICES LLC; ALTRIA
GROUP DISTRIBUTION COMPANY; and PHILIP MORRIS USA, INC.,
Defendants, Case No. 3:22-cv-00721 (N.D. Cal., February 3, 2022) is
a class action against the Defendants for negligence, gross
negligence, and violations of Public Nuisance Law and the Racketeer
Influenced and Corrupt Organizations Act.
According to the complaint, the Defendants used three tactics to
maintain market dominance in the cigarette industry: (1) product
design to maximize addiction, (2) mass deception, and (3) targeting
of youth. Defendants JUUL Labs and Adam Bowen designed an
e-cigarette device allegedly intended to create and sustain
addiction, but without the stigma associated with cigarettes and
promoted them to vulnerable young population. JUUL Labs and other
Defendants developed and implemented a marketing scheme to mislead
users into believing that JUUL products contained less nicotine
than they actually do and were healthy and safe. The Defendants
enticed newcomers to nicotine with kid-friendly flavors without
ensuring the flavoring additives were safe for inhalation. The
Defendants targeted the youth market by placing vaporized campaigns
on youth-oriented websites and media and using influencers and
affiliates to amplify their message to a teenage audience. The
Defendants have successfully caused more young people to start
using e-cigarettes, creating a youth e-cigarette epidemic and
public health crisis, the suit asserts.
Paterson Public Schools is a unified school district with its
offices located at 90 Delaware Avenue in Paterson, New Jersey.
JUUL Labs, Inc., formerly known as Pax Labs, Inc., is an American
electronic cigarette company, with its principal place of business
in San Francisco, California.
Altria Group, Inc. is a producer of tobacco products, with its
principal place of business in Richmond, Virginia.
Philip Morris USA, Inc. is a wholly-owned subsidiary of Altria
Group, Inc., with its principal place of business in Richmond,
Virginia.
Altria Client Services LLC is a tobacco company, with its principal
place of business in Richmond, Virginia.
Altria Group Distribution Company is a tobacco company, with its
principal place of business in Richmond, Virginia. [BN]
The Plaintiff is represented by:
James Frantz, Esq.
William B. Shinoff, Esq.
FRANTZ LAW GROUP, APLC
402 W. Broadway, Ste. 860
San Diego, CA 92101
Telephone: (619) 233-5945
Facsimile: (619) 525-7672
E-mail: jpf@frantzlawgroup.com
wshinoff@frantzlawgroup.com
JUUL LABS: Entices Youth to Buy E-Cigarette, Warren Suit Claims
---------------------------------------------------------------
WARREN CONSOLIDATED SCHOOLS, on behalf of itself and all others
similarly situated, Plaintiff v. JUUL LABS, INC. F/K/A PAX LABS,
INC.; JAMES MONSEES; ADAM BOWEN; NICHOLAS PRITZKER; HOYOUNG HUH;
RIAZ VALANI; ALTRIA GROUP, INC.; ALTRIA CLIENT SERVICES LLC; ALTRIA
GROUP DISTRIBUTION COMPANY; and PHILIP MORRIS USA, INC.,
Defendants, Case No. 3:22-cv-00655 (N.D. Cal., February 1, 2022) is
a class action against the Defendants for negligence, gross
negligence, and violations of Michigan Public Nuisance Law and the
Racketeer Influenced and Corrupt Organizations Act.
According to the complaint, the Defendants used three tactics to
maintain market dominance in the cigarette industry: (1) product
design to maximize addiction, (2) mass deception, and (3) targeting
of youth. Defendants JUUL Labs and Adam Bowen designed an
e-cigarette device allegedly intended to create and sustain
addiction, but without the stigma associated with cigarettes and
promoted them to vulnerable young population. JUUL Labs and other
Defendants developed and implemented a marketing scheme to mislead
users into believing that JUUL products contained less nicotine
than they actually do and were healthy and safe. The Defendants
enticed newcomers to nicotine with kid-friendly flavors without
ensuring the flavoring additives were safe for inhalation. The
Defendants targeted the youth market by placing vaporized campaigns
on youth-oriented websites and media and using influencers and
affiliates to amplify their message to a teenage audience. The
Defendants have successfully caused more young people to start
using e-cigarettes, creating a youth e-cigarette epidemic and
public health crisis, the suit says.
Warren Consolidated Schools is a public school district in Warren,
Michigan.
JUUL Labs, Inc., formerly known as Pax Labs, Inc., is an American
electronic cigarette company, with its principal place of business
in San Francisco, California.
Altria Group, Inc. is a producer of tobacco products, with its
principal place of business in Richmond, Virginia.
Philip Morris USA, Inc. is a wholly-owned subsidiary of Altria
Group, Inc., with its principal place of business in Richmond,
Virginia.
Altria Client Services LLC is a tobacco company, with its principal
place of business in Richmond, Virginia.
Altria Group Distribution Company is a tobacco company, with its
principal place of business in Richmond, Virginia. [BN]
The Plaintiff is represented by:
Thomas P. Cartmell, Esq.
Jonathan P. Kieffer, Esq.
Tyler W. Hudson, Esq.
WAGSTAFF & CARTMELL LLP
4740 Grand Ave., Ste. 300
Kansas City, MO 64112
Telephone: (816) 701-1100
Facsimile: (816) 531-2372
E-mail: tcartmell@wcllp.com
jpkieffer@wcllp.com
thudson@wcllp.com
- and –
Kirk J. Goza, Esq.
Brad Honnold, Esq.
GOZA & HONNOLD LLC
9500 Nall Ave., Ste. 400
Overland Park, KS 66207
Telephone: (913) 451-3433
E-mail: kgoza@gohonlaw.com
bhonnold@gohonlaw.com
- and –
Andy D. Birchfield, Jr., Esq.
Joseph G. VanZandt, Esq.
BEASLEY ALLEN CROW METHVIN PORTIS & MILES, LLC
234 Commerce Street
Montgomery, AL 36103
Telephone: (334) 269-2343
E-mail: Andy.Birchfield@BeasleyAllen.com
Joseph.VanZandt@BeasleyAllen.com
- and –
Rahul Ravipudi, Esq.
PANISH SHEA & BOYLE LLP
11111 Santa Monica Boulevard, Suite 700
Los Angeles, CA 90025
Telephone: (310) 477-1700
Facsimile: (310) 477-1699
E-mail: ravipudi@psblaw.com
- and –
John P. Fiske, Esq.
BARON & BUDD, P.C.
11440 West Bernardo Court Suite 265
San Diego, CA 92127
Telephone: (858) 251-7424
Facsimile: (214) 520-1181
E-mail: jfiske@baronbudd.com
- and –
Khaldoun Baghdadi, Esq.
WALKUP MELODIA KELLY & SCHOENBERGER, P.C.
650 California Street, 26th Floor
San Francisco, CA 94108
Telephone: (415) 617-1269
E-mail: kbaghdadi@walkuplawoffice.com
JUUL LABS: Faces Edwards-Knox Suit Over Youth E-Cigarette Addiction
-------------------------------------------------------------------
EDWARDS-KNOX CENTRAL SCHOOL DISTRICT, on behalf of itself and all
others similarly situated, Plaintiff v. JUUL LABS, INC. F/K/A PAX
LABS, INC.; JAMES MONSEES; ADAM BOWEN; NICHOLAS PRITZKER; HOYOUNG
HUH; RIAZ VALANI; ALTRIA GROUP, INC.; ALTRIA CLIENT SERVICES LLC;
ALTRIA GROUP DISTRIBUTION COMPANY; and PHILIP MORRIS USA, INC.,
Defendants, Case No. 3:22-cv-00717 (N.D. Cal., February 3, 2022) is
a class action against the Defendants for negligence, gross
negligence, and violations of Public Nuisance Law and the Racketeer
Influenced and Corrupt Organizations Act.
According to the complaint, the Defendants used three tactics to
maintain market dominance in the cigarette industry: (1) product
design to maximize addiction, (2) mass deception, and (3) targeting
of youth. Defendants JUUL Labs and Adam Bowen designed an
e-cigarette device allegedly intended to create and sustain
addiction, but without the stigma associated with cigarettes and
promoted them to vulnerable young population. JUUL Labs and other
Defendants developed and implemented a marketing scheme to mislead
users into believing that JUUL products contained less nicotine
than they actually do and were healthy and safe. The Defendants
enticed newcomers to nicotine with kid-friendly flavors without
ensuring the flavoring additives were safe for inhalation. The
Defendants targeted the youth market by placing vaporized campaigns
on youth-oriented websites and media and using influencers and
affiliates to amplify their message to a teenage audience. The
Defendants have successfully caused more young people to start
using e-cigarettes, creating a youth e-cigarette epidemic and
public health crisis, the suit asserts.
Edwards-Knox Central School District is a unified school district
with its offices located at 2512 County Route 24 in Hermon, New
York.
JUUL Labs, Inc., formerly known as Pax Labs, Inc., is an American
electronic cigarette company, with its principal place of business
in San Francisco, California.
Altria Group, Inc. is a producer of tobacco products, with its
principal place of business in Richmond, Virginia.
Philip Morris USA, Inc. is a wholly-owned subsidiary of Altria
Group, Inc., with its principal place of business in Richmond,
Virginia.
Altria Client Services LLC is a tobacco company, with its principal
place of business in Richmond, Virginia.
Altria Group Distribution Company is a tobacco company, with its
principal place of business in Richmond, Virginia. [BN]
The Plaintiff is represented by:
James Frantz, Esq.
William B. Shinoff, Esq.
FRANTZ LAW GROUP, APLC
402 W. Broadway, Ste. 860
San Diego, CA 92101
Telephone: (619) 233-5945
Facsimile: (619) 525-7672
E-mail: jpf@frantzlawgroup.com
wshinoff@frantzlawgroup.com
JUUL LABS: Faces Lake Forest Suit Over Youth E-Cigarette Campaign
-----------------------------------------------------------------
LAKE FOREST SCHOOL DISTRICT, on behalf of itself and all others
similarly situated, Plaintiff v. JUUL LABS, INC., ALTRIA GROUP,
INC., PHILIP MORRIS USA, INC., ALTRIA CLIENT SERVICES, LLC, ALTRIA
GROUP DISTRIBUTION COMPANY, JAMES MONSEES, ADAM BOWEN, NICHOLAS
PRITZKER, HOYOUNG HUH, and RIAZ VALANI, Defendants, Case No.
3:22-cv-00723 (N.D. Cal., February 3, 2022) is a class action
against the Defendants for negligence, gross negligence, and
violations of Delaware Public Nuisance Law and the Racketeer
Influenced and Corrupt Organizations Act.
According to the complaint, the Defendants used three tactics to
maintain market dominance in the cigarette industry: (1) product
design to maximize addiction, (2) mass deception, and (3) targeting
of youth. Defendants JUUL Labs and Adam Bowen designed an
e-cigarette device allegedly intended to create and sustain
addiction, but without the stigma associated with cigarettes and
promoted them to vulnerable young population. JUUL Labs and other
Defendants developed and implemented a marketing scheme to mislead
users into believing that JUUL products contained less nicotine
than they actually do and were healthy and safe. The Defendants
enticed newcomers to nicotine with kid-friendly flavors without
ensuring the flavoring additives were safe for inhalation. The
Defendants targeted the youth market by placing vaporized campaigns
on youth-oriented websites and media and using influencers and
affiliates to amplify their message to a teenage audience. The
Defendants have successfully caused more young people to start
using e-cigarettes, creating a youth e-cigarette epidemic and
public health crisis, the suit says.
Lake Forest School District is a school district with its offices
located on 5423 Killens Pond Road, Felton, Delaware.
JUUL Labs, Inc., formerly known as Pax Labs, Inc., is an American
electronic cigarette company, with its principal place of business
in San Francisco, California.
Altria Group, Inc. is a producer of tobacco products, with its
principal place of business in Richmond, Virginia.
Philip Morris USA, Inc. is a wholly-owned subsidiary of Altria
Group, Inc., with its principal place of business in Richmond,
Virginia.
Altria Client Services LLC is a tobacco company, with its principal
place of business in Richmond, Virginia.
Altria Group Distribution Company is a tobacco company, with its
principal place of business in Richmond, Virginia. [BN]
The Plaintiff is represented by:
John P. Fiske, Esq.
BARON & BUDD, P.C.
11440 West Bernardo Court, Suite 265
San Diego, CA 92127
Telephone: (858) 251-7424
E-mail: jfiske@baronbudd.com
- and –
Khaldoun A. Baghdadi, Esq.
Conor M. Kelly, Esq.
WALKUP, MELODIA, KELLY & SCHOENBERGER
650 California Street
San Francisco, CA 94108
E-mail: kbaghdadi@walkuplawoffice.com
- and –
Philip C. Federico, Esq.
Brent P. Ceryes, Esq.
Matthew P. Legg, Esq.
SCHOCHOR, FEDERICO & STATON, P.A.
The Paulton
1211 St. Paul Street
Baltimore, MD 21202
E-mail: pfederico@sfspa.com
- and –
Chase T. Brockstedt, Esq.
BAIRD MANDALAS BROCKSTEDT LLC
1413 Savannah Rd., Suite 1
Lewes, DE 19958
E-mail: chase@bmbde.com
JUUL LABS: Faces MSAD Suit Over Youth E-Cigarette Crisis in Maine
-----------------------------------------------------------------
MSAD 15, on behalf of itself and all others similarly situated,
Plaintiff v. JUUL LABS, INC. F/K/A PAX LABS, INC.; JAMES MONSEES;
ADAM BOWEN; NICHOLAS PRITZKER; HOYOUNG HUH; RIAZ VALANI; ALTRIA
GROUP, INC.; ALTRIA CLIENT SERVICES LLC; ALTRIA GROUP DISTRIBUTION
COMPANY; and PHILIP MORRIS USA, INC., Defendants, Case No.
3:22-cv-00713 (N.D. Cal., February 3, 2022) is a class action
against the Defendants for negligence, gross negligence, and
violations of Public Nuisance Law and the Racketeer Influenced and
Corrupt Organizations Act.
According to the complaint, the Defendants used three tactics to
maintain market dominance in the cigarette industry: (1) product
design to maximize addiction, (2) mass deception, and (3) targeting
of youth. Defendants JUUL Labs and Adam Bowen designed an
e-cigarette device allegedly intended to create and sustain
addiction, but without the stigma associated with cigarettes and
promoted them to vulnerable young population. JUUL Labs and other
Defendants developed and implemented a marketing scheme to mislead
users into believing that JUUL products contained less nicotine
than they actually do and were healthy and safe. The Defendants
enticed newcomers to nicotine with kid-friendly flavors without
ensuring the flavoring additives were safe for inhalation. The
Defendants targeted the youth market by placing vaporized campaigns
on youth-oriented websites and media and using influencers and
affiliates to amplify their message to a teenage audience. The
Defendants have successfully caused more young people to start
using e-cigarettes, creating a youth e-cigarette epidemic and
public health crisis, says the suit.
MSAD 15 is a unified school district with its offices located at 14
Shaker Road in Gray, Maine.
JUUL Labs, Inc., formerly known as Pax Labs, Inc., is an American
electronic cigarette company, with its principal place of business
in San Francisco, California.
Altria Group, Inc. is a producer of tobacco products, with its
principal place of business in Richmond, Virginia.
Philip Morris USA, Inc. is a wholly-owned subsidiary of Altria
Group, Inc., with its principal place of business in Richmond,
Virginia.
Altria Client Services LLC is a tobacco company, with its principal
place of business in Richmond, Virginia.
Altria Group Distribution Company is a tobacco company, with its
principal place of business in Richmond, Virginia. [BN]
The Plaintiff is represented by:
James Frantz, Esq.
William B. Shinoff, Esq.
FRANTZ LAW GROUP, APLC
402 W. Broadway, Ste. 860
San Diego, CA 92101
Telephone: (619) 233-5945
Facsimile: (619) 525-7672
E-mail: jpf@frantzlawgroup.com
wshinoff@frantzlawgroup.com
JUUL LABS: Hardeman County Sues Over Youth E-Cigarette Epidemic
---------------------------------------------------------------
HARDEMAN COUNTY SCHOOLS, on behalf of itself and all others
similarly situated, Plaintiff v. JUUL LABS, INC. F/K/A PAX LABS,
INC.; JAMES MONSEES; ADAM BOWEN; NICHOLAS PRITZKER; HOYOUNG HUH;
RIAZ VALANI; ALTRIA GROUP, INC.; ALTRIA CLIENT SERVICES LLC; ALTRIA
GROUP DISTRIBUTION COMPANY; and PHILIP MORRIS USA, INC.,
Defendants, Case No. 3:22-cv-00710 (N.D. Cal., February 3, 2022) is
a class action against the Defendants for negligence, gross
negligence, and violations of Public Nuisance Law and the Racketeer
Influenced and Corrupt Organizations Act.
According to the complaint, the Defendants used three tactics to
maintain market dominance in the cigarette industry: (1) product
design to maximize addiction, (2) mass deception, and (3) targeting
of youth. Defendants JUUL Labs and Adam Bowen designed an
e-cigarette device allegedly intended to create and sustain
addiction, but without the stigma associated with cigarettes and
promoted them to vulnerable young population. JUUL Labs and other
Defendants developed and implemented a marketing scheme to mislead
users into believing that JUUL products contained less nicotine
than they actually do and were healthy and safe. The Defendants
enticed newcomers to nicotine with kid-friendly flavors without
ensuring the flavoring additives were safe for inhalation. The
Defendants targeted the youth market by placing vaporized campaigns
on youth-oriented websites and media and using influencers and
affiliates to amplify their message to a teenage audience. The
Defendants have successfully caused more young people to start
using e-cigarettes, creating a youth e-cigarette epidemic and
public health crisis, says the suit.
Hardeman County Schools is a unified school district with its
offices located at 10815 Old Highway 64 in Bolivar, Tennessee.
JUUL Labs, Inc., formerly known as Pax Labs, Inc., is an American
electronic cigarette company, with its principal place of business
in San Francisco, California.
Altria Group, Inc. is a producer of tobacco products, with its
principal place of business in Richmond, Virginia.
Philip Morris USA, Inc. is a wholly-owned subsidiary of Altria
Group, Inc., with its principal place of business in Richmond,
Virginia.
Altria Client Services LLC is a tobacco company, with its principal
place of business in Richmond, Virginia.
Altria Group Distribution Company is a tobacco company, with its
principal place of business in Richmond, Virginia. [BN]
The Plaintiff is represented by:
James Frantz, Esq.
William B. Shinoff, Esq.
FRANTZ LAW GROUP, APLC
402 W. Broadway, Ste. 860
San Diego, CA 92101
Telephone: (619) 233-5945
Facsimile: (619) 525-7672
E-mail: jpf@frantzlawgroup.com
wshinoff@frantzlawgroup.com
JUUL LABS: Markets E-Cigarette to Youth, Bloomfield Central Claims
------------------------------------------------------------------
BLOOMFIELD CENTRAL SCHOOL DISTRICT, on behalf of itself and all
others similarly situated, Plaintiff v. JUUL LABS, INC. F/K/A PAX
LABS, INC.; JAMES MONSEES; ADAM BOWEN; NICHOLAS PRITZKER; HOYOUNG
HUH; RIAZ VALANI; ALTRIA GROUP, INC.; ALTRIA CLIENT SERVICES LLC;
ALTRIA GROUP DISTRIBUTION COMPANY; and PHILIP MORRIS USA, INC.,
Defendants, Case No. 3:22-cv-00727 (N.D. Cal., February 3, 2022) is
a class action against the Defendants for negligence, gross
negligence, and violations of Public Nuisance Law and the Racketeer
Influenced and Corrupt Organizations Act.
According to the complaint, the Defendants used three tactics to
maintain market dominance in the cigarette industry: (1) product
design to maximize addiction, (2) mass deception, and (3) targeting
of youth. Defendants JUUL Labs and Adam Bowen designed an
e-cigarette device allegedly intended to create and sustain
addiction, but without the stigma associated with cigarettes and
promoted them to vulnerable young population. JUUL Labs and other
Defendants developed and implemented a marketing scheme to mislead
users into believing that JUUL products contained less nicotine
than they actually do and were healthy and safe. The Defendants
enticed newcomers to nicotine with kid-friendly flavors without
ensuring the flavoring additives were safe for inhalation. The
Defendants targeted the youth market by placing vaporized campaigns
on youth-oriented websites and media and using influencers and
affiliates to amplify their message to a teenage audience. The
Defendants have successfully caused more young people to start
using e-cigarettes, creating a youth e-cigarette epidemic and
public health crisis, the suit says.
Bloomfield Central School District is a unified school district
with its offices located at 45 Maple Avenue in Bloomfield, New
York.
JUUL Labs, Inc., formerly known as Pax Labs, Inc., is an American
electronic cigarette company, with its principal place of business
in San Francisco, California.
Altria Group, Inc. is a producer of tobacco products, with its
principal place of business in Richmond, Virginia.
Philip Morris USA, Inc. is a wholly-owned subsidiary of Altria
Group, Inc., with its principal place of business in Richmond,
Virginia.
Altria Client Services LLC is a tobacco company, with its principal
place of business in Richmond, Virginia.
Altria Group Distribution Company is a tobacco company, with its
principal place of business in Richmond, Virginia. [BN]
The Plaintiff is represented by:
James Frantz, Esq.
William B. Shinoff, Esq.
FRANTZ LAW GROUP, APLC
402 W. Broadway, Ste. 860
San Diego, CA 92101
Telephone: (619) 233-5945
Facsimile: (619) 525-7672
E-mail: jpf@frantzlawgroup.com
wshinoff@frantzlawgroup.com
JUUL LABS: Newcomerstown Sues Over Deceptive E-Cigarette Campaign
-----------------------------------------------------------------
NEWCOMERSTOWN EXEMPTED VILLAGE SCHOOL DISTRICT, on behalf of itself
and all others similarly situated, Plaintiff v. JUUL LABS, INC.
F/K/A PAX LABS, INC.; JAMES MONSEES; ADAM BOWEN; NICHOLAS PRITZKER;
HOYOUNG HUH; RIAZ VALANI; ALTRIA GROUP, INC.; ALTRIA CLIENT
SERVICES LLC; ALTRIA GROUP DISTRIBUTION COMPANY; and PHILIP MORRIS
USA, INC., Defendants, Case No. 3:22-cv-00726 (N.D. Cal., February
3, 2022) is a class action against the Defendants for negligence,
gross negligence, and violations of Public Nuisance Law and the
Racketeer Influenced and Corrupt Organizations Act.
According to the complaint, the Defendants used three tactics to
maintain market dominance in the cigarette industry: (1) product
design to maximize addiction, (2) mass deception, and (3) targeting
of youth. Defendants JUUL Labs and Adam Bowen designed an
e-cigarette device allegedly intended to create and sustain
addiction, but without the stigma associated with cigarettes and
promoted them to vulnerable young population. JUUL Labs and other
Defendants developed and implemented a marketing scheme to mislead
users into believing that JUUL products contained less nicotine
than they actually do and were healthy and safe. The Defendants
enticed newcomers to nicotine with kid-friendly flavors without
ensuring the flavoring additives were safe for inhalation. The
Defendants targeted the youth market by placing vaporized campaigns
on youth-oriented websites and media and using influencers and
affiliates to amplify their message to a teenage audience. The
Defendants have successfully caused more young people to start
using e-cigarettes, creating a youth e-cigarette epidemic and
public health crisis, asserts the suit.
Newcomerstown Exempted Village School District is a public school
district with its offices located on 702 S. River Street in
Newcomerstown, Ohio.
JUUL Labs, Inc., formerly known as Pax Labs, Inc., is an American
electronic cigarette company, with its principal place of business
in San Francisco, California.
Altria Group, Inc. is a producer of tobacco products, with its
principal place of business in Richmond, Virginia.
Philip Morris USA, Inc. is a wholly-owned subsidiary of Altria
Group, Inc., with its principal place of business in Richmond,
Virginia.
Altria Client Services LLC is a tobacco company, with its principal
place of business in Richmond, Virginia.
Altria Group Distribution Company is a tobacco company, with its
principal place of business in Richmond, Virginia. [BN]
The Plaintiff is represented by:
James Frantz, Esq.
William B. Shinoff, Esq.
FRANTZ LAW GROUP, APLC
402 W. Broadway, Ste. 860
San Diego, CA 92101
Telephone: (619) 233-5945
Facsimile: (619) 525-7672
E-mail: jpf@frantzlawgroup.com
wshinoff@frantzlawgroup.com
JUUL LABS: Onondaga Central Sues Over E-Cigarette's Risks to Youth
------------------------------------------------------------------
ONONDAGA CENTRAL SCHOOL DISTRICT, on behalf of itself and all
others similarly situated, Plaintiff v. JUUL LABS, INC. F/K/A PAX
LABS, INC.; JAMES MONSEES; ADAM BOWEN; NICHOLAS PRITZKER; HOYOUNG
HUH; RIAZ VALANI; ALTRIA GROUP, INC.; ALTRIA CLIENT SERVICES LLC;
ALTRIA GROUP DISTRIBUTION COMPANY; and PHILIP MORRIS USA, INC.,
Defendants, Case No. 3:22-cv-00729 (N.D. Cal., February 3, 2022) is
a class action against the Defendants for negligence, gross
negligence, and violations of Public Nuisance Law and the Racketeer
Influenced and Corrupt Organizations Act.
According to the complaint, the Defendants used three tactics to
maintain market dominance in the cigarette industry: (1) product
design to maximize addiction, (2) mass deception, and (3) targeting
of youth. Defendants JUUL Labs and Adam Bowen designed an
e-cigarette device allegedly intended to create and sustain
addiction, but without the stigma associated with cigarettes and
promoted them to vulnerable young population. JUUL Labs and other
Defendants developed and implemented a marketing scheme to mislead
users into believing that JUUL products contained less nicotine
than they actually do and were healthy and safe. The Defendants
enticed newcomers to nicotine with kid-friendly flavors without
ensuring the flavoring additives were safe for inhalation. The
Defendants targeted the youth market by placing vaporized campaigns
on youth-oriented websites and media and using influencers and
affiliates to amplify their message to a teenage audience. The
Defendants have successfully caused more young people to start
using e-cigarettes, creating a youth e-cigarette epidemic and
public health crisis, the suit says.
Onondaga Central School District is a unified school district with
its offices located at 4466 South Onondaga Road in Nedrow, New
York.
JUUL Labs, Inc., formerly known as Pax Labs, Inc., is an American
electronic cigarette company, with its principal place of business
in San Francisco, California.
Altria Group, Inc. is a producer of tobacco products, with its
principal place of business in Richmond, Virginia.
Philip Morris USA, Inc. is a wholly-owned subsidiary of Altria
Group, Inc., with its principal place of business in Richmond,
Virginia.
Altria Client Services LLC is a tobacco company, with its principal
place of business in Richmond, Virginia.
Altria Group Distribution Company is a tobacco company, with its
principal place of business in Richmond, Virginia. [BN]
The Plaintiff is represented by:
James Frantz, Esq.
William B. Shinoff, Esq.
FRANTZ LAW GROUP, APLC
402 W. Broadway, Ste. 860
San Diego, CA 92101
Telephone: (619) 233-5945
Facsimile: (619) 525-7672
E-mail: jpf@frantzlawgroup.com
wshinoff@frantzlawgroup.com
JUUL LABS: Rankin Sues Over Youth's Nicotine Addiction in Miss.
---------------------------------------------------------------
RANKIN COUNTY SCHOOL DISTRICT, on behalf of itself and all others
similarly situated, Plaintiff v. JUUL LABS, INC. F/K/A PAX LABS,
INC.; JAMES MONSEES; ADAM BOWEN; NICHOLAS PRITZKER; HOYOUNG HUH;
RIAZ VALANI; ALTRIA GROUP, INC.; ALTRIA CLIENT SERVICES LLC; ALTRIA
GROUP DISTRIBUTION COMPANY; and PHILIP MORRIS USA, INC.,
Defendants, Case No. 3:22-cv-00722 (N.D. Cal., February 3, 2022) is
a class action against the Defendants for negligence, gross
negligence, and violations of Public Nuisance Law and the Racketeer
Influenced and Corrupt Organizations Act.
According to the complaint, the Defendants used three tactics to
maintain market dominance in the cigarette industry: (1) product
design to maximize addiction, (2) mass deception, and (3) targeting
of youth. Defendants JUUL Labs and Adam Bowen designed an
e-cigarette device allegedly intended to create and sustain
addiction, but without the stigma associated with cigarettes and
promoted them to vulnerable young population. JUUL Labs and other
Defendants developed and implemented a marketing scheme to mislead
users into believing that JUUL products contained less nicotine
than they actually do and were healthy and safe. The Defendants
enticed newcomers to nicotine with kid-friendly flavors without
ensuring the flavoring additives were safe for inhalation. The
Defendants targeted the youth market by placing vaporized campaigns
on youth-oriented websites and media and using influencers and
affiliates to amplify their message to a teenage audience. The
Defendants have successfully caused more young people to start
using e-cigarettes, creating a youth e-cigarette epidemic and
public health crisis, says the suit.
Rankin County School District is a unified school district with its
offices located at 1220 Apple Park Place in Brandon, Mississippi.
JUUL Labs, Inc., formerly known as Pax Labs, Inc., is an American
electronic cigarette company, with its principal place of business
in San Francisco, California.
Altria Group, Inc. is a producer of tobacco products, with its
principal place of business in Richmond, Virginia.
Philip Morris USA, Inc. is a wholly-owned subsidiary of Altria
Group, Inc., with its principal place of business in Richmond,
Virginia.
Altria Client Services LLC is a tobacco company, with its principal
place of business in Richmond, Virginia.
Altria Group Distribution Company is a tobacco company, with its
principal place of business in Richmond, Virginia. [BN]
The Plaintiff is represented by:
James Frantz, Esq.
William B. Shinoff, Esq.
FRANTZ LAW GROUP, APLC
402 W. Broadway, Ste. 860
San Diego, CA 92101
Telephone: (619) 233-5945
Facsimile: (619) 525-7672
E-mail: jpf@frantzlawgroup.com
wshinoff@frantzlawgroup.com
JUUL LABS: St. Cloud Area School Sues Over Youth E-Cigarette Crisis
-------------------------------------------------------------------
ST. CLOUD AREA SCHOOL DISTRICT 742, on behalf of itself and all
others similarly situated, Plaintiff v. JUUL LABS, INC. F/K/A PAX
LABS, INC.; JAMES MONSEES; ADAM BOWEN; NICHOLAS PRITZKER; HOYOUNG
HUH; RIAZ VALANI; ALTRIA GROUP, INC.; ALTRIA CLIENT SERVICES LLC;
ALTRIA GROUP DISTRIBUTION COMPANY; and PHILIP MORRIS USA, INC.,
Defendants, Case No. 3:22-cv-00724 (N.D. Cal., February 3, 2022) is
a class action against the Defendants for negligence, gross
negligence, and violations of Public Nuisance Law and the Racketeer
Influenced and Corrupt Organizations Act.
According to the complaint, the Defendants used three tactics to
maintain market dominance in the cigarette industry: (1) product
design to maximize addiction, (2) mass deception, and (3) targeting
of youth. Defendants JUUL Labs and Adam Bowen designed an
e-cigarette device allegedly intended to create and sustain
addiction, but without the stigma associated with cigarettes and
promoted them to vulnerable young population. JUUL Labs and other
Defendants developed and implemented a marketing scheme to mislead
users into believing that JUUL products contained less nicotine
than they actually do and were healthy and safe. The Defendants
enticed newcomers to nicotine with kid-friendly flavors without
ensuring the flavoring additives were safe for inhalation. The
Defendants targeted the youth market by placing vaporized campaigns
on youth-oriented websites and media and using influencers and
affiliates to amplify their message to a teenage audience. The
Defendants have successfully caused more young people to start
using e-cigarettes, creating a youth e-cigarette epidemic and
public health crisis, asserts the suit.
St. Cloud Area School District 742 is a unified school district
with its offices located at 1201 Second Street South in Waite Park,
Minnesota.
JUUL Labs, Inc., formerly known as Pax Labs, Inc., is an American
electronic cigarette company, with its principal place of business
in San Francisco, California.
Altria Group, Inc. is a producer of tobacco products, with its
principal place of business in Richmond, Virginia.
Philip Morris USA, Inc. is a wholly-owned subsidiary of Altria
Group, Inc., with its principal place of business in Richmond,
Virginia.
Altria Client Services LLC is a tobacco company, with its principal
place of business in Richmond, Virginia.
Altria Group Distribution Company is a tobacco company, with its
principal place of business in Richmond, Virginia. [BN]
The Plaintiff is represented by:
James Frantz, Esq.
William B. Shinoff, Esq.
FRANTZ LAW GROUP, APLC
402 W. Broadway, Ste. 860
San Diego, CA 92101
Telephone: (619) 233-5945
Facsimile: (619) 525-7672
E-mail: jpf@frantzlawgroup.com
wshinoff@frantzlawgroup.com
KNIGHT TRANSPORTATION: Can't Compel More Discovery in Sampson Suit
------------------------------------------------------------------
In the case, VALERIE SAMPSON and DAVID RAYMOND, on their own behalf
and on the behalf of all others similarly situated, Plaintiffs v.
KNIGHT TRANSPORTATION, INC., KNIGHT REFRIGERATED, LLC, and KNIGHT
PORT SERVICES, LLC, Defendants, Case No. C17-0028-JCC (W.D. Wash.),
Judge John C. Coughenour of the U.S. District Court for the Western
District of Washington, Seattle, denied the Defendants' motion to
compel further discovery responses.
I. Introduction
Having thoroughly considered the parties' briefing and the relevant
record, Judge Coughenour finds oral argument unnecessary.
After the Defendants filed their motion to compel, the Plaintiffs
supplemented some of their responses to the Defendants' discovery
requests. As a result, the Defendants withdrew a portion of their
motion. Therefore, Judge Coughenour need not address this portion
of the Defendants' motion. Nor will he address the portion mooted
by the Plaintiffs' supplemental response to KPS' Sampson RFA No.
10. He examines the remaining items.
II. Discussion
A. Discovery Subject to Defendants' Motion
1. Knight's Sampson RFA No. 14 and KPS's Raymond RFA No. 8
The Defendants seek supplemental responses to their RFAs regarding
whether their deductions from the Plaintiffs' wages were
"unlawful." The Plaintiffs objected to the request on the basis
that the Defendants sought "an admission on the ultimate legal
conclusion," which is not the proper subject of an RFA.
Judge Coughenour agrees with the Plaintiffs' objection. He says,
the distinction between a request seeking application of law to
facts and a request impermissibly seeking a pure conclusion of law
is not always easy to apply. But in the case, the distinction
appears clear. At its core, the Defendants are asking for the
admission of a legal conclusion that drives the outcome of the case
-- whether a deduction was lawful. This is beyond the scope of a
permissible RFA, whose purpose "is to narrow the range of issues
for trial," not foreclose a trial.
2. KPS' Raymond Interrogatory No. 10 and Sampson Interrogatory No.
22/Knight Refrig.'s Sampson Interrogatory No. 1 and Raymond
Interrogatory No. 15
The Defendants next ask for supplemental responses to
interrogatories seeking "information about thePlaintiffs' responses
to RFAs that were not an unqualified admission." THey assert that
many of the Plaintiffs' initial responses to the interrogatories
were "deficient because they either failed to provide a response
altogether, or failed to respond completely to the interrogatories"
and, therefore, did not satisfy Rule 36(a)(4). After reviewing each
of the RFAs at issue, Judge Coughenour concludes that no further
supplementation is required to satisfy the interrogatories.
a. KPS' Sampson & Raymond RFA No. 1: Named Plaintiffs' Payment for
Rest Periods
After denying the admission, the Plaintiffs responded to the
interrogatory, indicating that they were not employed by the
Defendants on or after the date specified in the RFA. The
Defendants take issue with this statement because it "fails to
state persons who have knowledge or any documents supporting the
responses." While this may be true, it does not make this a
deficiency worthy of the Court's attention. As the Plaintiffs point
out, this information must be contained in the Defendants' own
records, and the Defendants do not deny the Plaintiffs' contention
that its records contain this information. Instead, they rely on an
overly formalistic interpretation of Rule 36(a)(4), for purposes
unknown to the Court.
b. KPS' Sampson RFA No. 2: Class Members' Payment for Rest Periods
Ms. Sampson objected to the admission, indicating that she did not
possess this information for absent class members. Judge Coughenour
holds that it is sufficient to satisfy Rule 36(a)(4). Nothing more
is needed.
c. KPS' Sampson RFAs Nos. 19 & 20: Defendants' Willfulness
Ms. Sampson objected to these admissions on the basis that they
seek legal conclusions. Judge Coughenour agrees. No additional
information need be provided.
d. KPS' Sampson RFA No. 6 & Raymond No. 4: Rate of Pay Received
Equal to Minimum Wage Rate
After initially objecting on the basis that the RFA seeks a legal
conclusion, Mr. Raymond indicated that he did not have access to
all his pay records and could not respond accordingly. Similarly,
Ms. Sampson indicated that the Defendants had not produced all pay
records requisite for her to respond. Judge Coughenour finds it
sufficient to satisfy Rule 36(a)(4). Nothing else is needed.
e. KPS' Sampson RFA Nos. 7, 10, 11, 17: Various Class Allegations
Ms. Sampson lodged a variety of objections, including that she
lacked individualized information on absent class members. Again,
this is sufficient, Judge Coughenour finds. Nothing more is
needed.
f. KPS' Sampson RFA Nos. 14-16 & Raymond RFA Nos. 3, 8, 9: Various
Legal Conclusions re: Rate of Pay
As the Plaintiffs indicated in their objections, these RFAs seek
legal conclusions and are improper. Therefore, nothing more is
needed from the Plaintiffs.
3. Knight Refrig.'s Raymond RFP No. 37 and Knight's Sampson RFP No.
37
Finally, the Defendants ask for supplemental responses to RFPs
supporting the contention that the "they failed to keep true and
accurate time records for all hours worked and failed to furnish
proper payroll documents." As it did at the outset, the Plaintiffs
argue the Court should deny the Defendants' motion on this, and
each of the disputed issues discussed, based on an inadequate meet
and confer. While he finds the meet and confer adequate for those
earlier disputed issues, Judge Coughenour finds the meet and confer
inadequate for this particular issue. Nothing in the record
suggests that the parties engaged in any discussion on this
particular issue, either directly or indirectly. The Defendants'
assertion that such a discussion was unnecessary, is both
unavailing and not supported by the record.
B. Attorney Fees
When the Court rules on a motion to compel discovery, it must award
costs and attorney fees to the prevailing party unless the losing
party's position was substantially justified or other circumstances
make an award of expenses unjust. "Substantial justification"
exists if there is a "genuine dispute" or "if reasonable people
could differ as to the appropriateness of the contested action."
Given the parties' reasonable dispute on at least some the
discovery items described, Judge Coughenour declines to award the
Plaintiffs attorney fees.
III. Conclusion
For the foregoing reasons, Judge Coughenour denied the Defendants'
motion.
A full-text copy of the Court's Jan. 28, 2022 Order is available at
https://tinyurl.com/3bud6xsm from Leagle.com.
LENDINGCLUB CORP: Plaintiff Voluntarily Dismisses Class Action
--------------------------------------------------------------
Peter Hayes, writing for Bloomberg Law, reports that LendingClub
Corp. will avoid a proposed class action alleging the company
illegally recorded borrowers' telephone calls without consent,
after the lead plaintiff voluntarily dismissed the lawsuit filed in
the Northern District of California.
"After further investigation into the facts underlying plaintiff's
claims, including into the likelihood of obtaining any recovery for
the putative class he seeks to represent, plaintiff determined that
LendingClub appears to employ adequate measures to inform consumers
their telephone calls are being recorded," the parties said in a
stipulation of dismissal filed Tuesday in the U.S. District Court
for the Northern District of California. [GN]
LIFE CARE: Dahlstrom Suit Referred to Magistrate Judge Vaughan
--------------------------------------------------------------
Judge Tana Lin of the U.S. District Court for the Western District
of Washington, Seattle, referred the case, RAJU A.T. DAHLSTROM, a
natural person, Plaintiff v. LIFE CARE CENTERS OF AMERICA, INC., a
Tennessee for-profit corporation, et al., Defendant, Case No.
2:21-cv-01465-TL (W.D. Wash.), to Magistrate Judge S. Kate Vaughan
for certain pretrial matters.
The action is assigned to Judge Lin. All future documents filed in
the case must bear the case number 2:21-cv-01465-TL-SKV.
Judge Lin has reviewed the files and records therein and determined
that certain pretrial matters are appropriate to refer to a
Magistrate Judge.
Pursuant to 28 U.S.C. Section 636(b)(1)(A) and Local Rule MJR 3,
Judge Lin refers to Magistrate Judge Vaughan all non-dispositive
pretrial matters, other than those matters excluded by 28 U.S.C.
Section 636(b)(1)(A). Federal Rule of Civil Procedure 72(a) governs
any objections to Magistrate Judge Vaughan's rulings concerning any
non-dispositive motions.
Pursuant to 28 U.S.C. Section 636(b)(1)(B) and (C) and Local Rule
MJR 4, Judge Lin also refers to Magistrate Judge Vaughan for
preparation of a report and recommendation all motions for (1)
injunctive relief, (2) judgment on the pleadings, (3) summary
judgment, (4) dismissal or to permit maintenance of a class action,
(5) dismissal for failure to state a claim upon which relief can be
granted, (6) involuntarily dismissal of an action, and (7) the
pending motion to remand. Federal Rule of Civil Procedure 72(b)
governs any further proceedings in the Court after Magistrate Judge
Vaughan files a report and recommendation.
Judge Lin directs and empowers Magistrate Judge Vaughan to conduct
hearings and make further necessary orders consistent with 28
U.S.C. Section 636, the local rules, and her Order.
A full-text copy of the Court's Jan. 26, 2022 Order is available at
https://tinyurl.com/ms6tvazy from Leagle.com.
LOS ANGELES, CA: Pleads Guilty in Probe of Botched Billing System
-----------------------------------------------------------------
smdp.com reports that a lawyer hired by the City Attorney's Office
pleaded guilty to a federal bribery charge in a scheme involving
$2.2 million in kickbacks and bribes to the top executive at the
Los Angeles Department of Water and Power in exchange for a
lucrative contract.
Paul O. Paradis, who represented the city of Los Angeles following
the botched launch of a DWP billing system in 2013 - but was
simultaneously representing a DWP ratepayer suing the city over the
system - received a $2.2 million kickback from another attorney as
part of the scheme, according to the U.S. Attorney's Office.
Sentencing was set for July 19 in what was the first criminal
charge filed arising out of a federal investigation into the city's
handling of the flawed DWP system and resulting litigation. The
failed system led to many customers receiving wildly inflated
bills.
Paradis, 58, of Scottsdale, Arizona, is cooperating in the ongoing
investigation, federal prosecutors said.
After the faulty billing system went into use, the city and utility
faced multiple class-action lawsuits filed by ratepayers. In
December 2014, the City Attorney's Office retained Paradis and
Beverly Hills lawyer Paul R. Kiesel as special counsel to represent
the city in a lawsuit meant to be used to settle all related claims
on the city's desired terms, according to federal prosecutors.
Kiesel is also cooperating with the investigation and is not
charged with any wrongdoing.
Prosecutors contend that when Paradis began representing the city
as special counsel in the litigation against PricewaterhouseCoopers
over the company's handling of the DWP billing system rollout, city
prosecutors were aware that he was already representing Antwon
Jones, the ratepayer who had a claim against the utility arising
from billing overcharges.
Jones was unaware that his lawyer, Paradis, also represented his
intended adversary, according to court filings.
At a February 2015 meeting with at least one senior member of the
City Attorney's Office, Paradis and Kiesel were authorized and
directed to find an attorney that would be friendly to the city to
supposedly represent Jones, according to court papers.
After the meeting, Paradis recruited an outside lawyer to
supposedly represent Jones in a lawsuit against the city. Paradis
told the lawyer that the city wanted the lawsuit to be
"pre-settled" on the city's desired terms, and that Paradis would
do all or most of the substantive work on the case, prosecutors
said.
In exchange, Paradis and the outside lawyer agreed that Paradis
would receive 20% of that lawyer's fees in the Jones v. City case
as a secret kickback, prosecutors stated.
In March 2015, the city sued PwC in a lawsuit that alleged the
accounting firm was responsible for DWP's billing debacle, claiming
that the firm had caused the city hundreds of millions of dollars
in damages. Paradis and Kiesel represented the city in that
lawsuit, which the city eventually dismissed.
Also in March 2015, Paradis used nonpublic information provided to
him by members of the City Attorney's Office and DWP to draft a
detailed complaint for a class-action lawsuit against the city with
Jones as the named class representative.
Later that month, Paradis provided the draft Jones v. City
complaint to the outside lawyer for filing. That attorney filed the
Paradis-drafted lawsuit the following month.
In June and July of 2015, Paradis and others working on the city's
behalf in the Jones lawsuit participated in four confidential
mediation sessions with the outside lawyer, who purportedly
represented Jones, prosecutors said.
In July 2017, a Los Angeles Superior Court judge issued a final
approval of the $67 million settlement agreed to by the parties in
Jones v. City, including about $19 million in plaintiffs' attorney
fees.
Pursuant to the settlement agreement, the city sent a check to the
outside attorney in the amount of more than $19.2 million. After
disbursing some of those funds in accordance with the terms of the
settlement agreement, the outside lawyer and his firm retained
about $10.3 million in fees.
The outside attorney then secretly paid $2.1 million to Paradis,
disguising the kickback as a real estate investment, and funneling
it through shell companies that Paradis and the lawyer had set up
exclusively for the purpose of transmitting and concealing the
illicit payment, according to Paradis' plea agreement.
As part of his plea, Paradis admitted giving bribes to multiple DWP
officials, including a DWP general manager and an DWP Board member,
in exchange for their help in securing a three-year, $30 million
no-bid contract with the utility in June 2017 for Paradis' downtown
Los Angeles-based cyber-services company, Aventador Utility
Solutions.
At the time it approved the no-bid contract, the DWP Board was not
informed that Paradis had ghostwritten a May 2017 independent
monitor report on the Jones v. City settlement on which the utility
based its decision, prosecutors said.
The Paradis-written report claimed that DWP could not meet its
obligations under the Jones v. City settlement agreement unless it
contracted with Aventador.
The DWP Board also was unaware that the then-DWP general manager
advocating for the award of the $30 million no-bid contract to
Paradis' company had secretly agreed to become its CEO with an
annual salary of $1 million and a luxury company car, prosecutors
say.
Earlier, David H. Wright, 62, of Riverside, a former top DWP
executive pleaded guilty to a federal bribery charge stemming from
the probe. He is expected to be sentenced April 26.
Thomas H. Peters, 55, of Pacific Palisades, a former senior
official at the City Attorney's Office, has agreed to plead guilty
to a federal extortion charge and is cooperating in the probe.
Federal prosecutors have also obtained a plea agreement from David
F. Alexander, 54, of Arcadia, a former senior cyber official at the
utility. He is expected to formally plead guilty on Feb. 8. [GN]
MED-CALL HEALTHCARE: Faces Bass Suit Over Unpaid Wages for Nurses
-----------------------------------------------------------------
SHARLEY BASS, individually and on behalf of all others similarly
situated, Plaintiff v. MED-CALL HEALTHCARE, INC., and RISHER
DUMPIT, Defendants, Case No. 8:22-cv-00244-CEH-TGW (M.D. Fla.,
January 31, 2022) is a class action against the Defendants for
their failure to compensate the Plaintiff and similarly situated
nurses at the statutory minimum wage and overtime rates in
violation of the Fair Labor Standards Act.
The Plaintiff worked as a nurse administering the COVID-19 vaccine
for the Defendants from approximately January 2021 until April
2021.
Med-Call Healthcare, Inc. is an operator of healthcare staffing
projects in the U.S., with its principal place of business in
Illinois. [BN]
The Plaintiff is represented by:
Brandon J. Hill, Esq.
Luis A. Cabassa, Esq.
Amanda E. Heystek, Esq.
WENZEL FENTON CABASSA, P.A.
1110 N. Florida Avenue, Suite 300
Tampa, FL 33602
Telephone: (813) 224-0431
Facsimile: (813) 229-8712
E-mail: bhill@wfclaw.com
lcabassa@wfclaw.com
aheystek@wfclaw.com
gnichols@wfclaw.com
MORTON COUNTY, ND: Dundon Appeals Civil Rights Suit Dismissal
-------------------------------------------------------------
Plaintiffs Vanessa Dundon, et al., filed an appeal from a court
ruling entered in the lawsuit entitled Vanessa Dundon, et al. v.
Kyle Kirchmeier, et al., Case No. 1:16-cv-00406-DMT, in the U.S.
District Court for the District of North Dakota, Western.
Mr. Kyle Kirchmeier is sued in his capacity as the Sheriff of
Morton County, North Dakota.
As previously reported in the Class Action Reporter, the Plaintiffs
in their lawsuit seek damages and injunctive relief arising from
curtailment of their First and Fourth Amendment rights.
On November 20, 2016, the Plaintiffs gathered to pray and to
peacefully protest the continued construction of Dakota Access
Pipeline and the ongoing blockage of the public highway 1806.
Police officers from the Morton County Sheriff's Department, City
of Mandan Police Department and Stutsman County Sheriff's
Department deployed teargas and fired water cannons to disperse
them.
On April 6, 2018, the Defendants filed a motion to dismiss the
case.
The Court entered an Order and Judgment on December 29, 2021 and
December 30, 2021, granting Defendants' motion for summary judgment
and dismissing the case.
The Plaintiffs now seek a review of this order.
The appellate case is captioned as Vanessa Dundon, et al. v. Kyle
Kirchmeier, et al., Case No. 22-1246, in the United States Court of
Appeals for the Eighth Circuit, filed on Feb. 1, 2022.[BN]
Plaintiffs-Appellants Vanessa Dundon, Jade Kalikolehuaokal Wool,
Crystal Wilson, David Demo, Guy Dullknife, III, Mariah Marie Bruce,
Frank Finan, Israel Hoagland-Lynn, Noah Michael Treanor, on behalf
of themselves and all similarly situated persons, are represented
by:
Janine L. Hoft, Esq.
PEOPLE'S LAW OFFICE
1180 N. Milwaukee Avenue
Chicago, IL 60642
Telephone: (773) 235-00710
- and -
Rachel Lederman, Esq.
BEACH & LEDERMAN
P.O. Box 40339
San Francisco, CA 94140-0339
Telephone: (415) 282-9300
E-mail: rlederman@beachledermanlaw.com
- and -
Melinda Longford Power, Esq.
WEST TOWN LAW OFFICE
2502 W. Division Street
Chicago, IL 60622
Telephone: (773) 278-6706
E-mail: melindapower@comcast.net
- and -
Natali Segovia, Esq.
WATER PROTECTOR LEGAL COLLECTIVE
P.O. Box 37065
Albuquerque, NM 87176
Telephone: (602) 796-7034
- and -
Mara E. Verheyden-Hilliard, Esq.
PARTNERSHIP FOR CIVIL JUSTICE FUND
617 Florida Avenue N.W.
Washington, DC 20001
Telephone: (202) 232-1180
Defendants-Appellees Kyle Kirchmeier, Morton County, City of
Mandan, Jason Ziegler, Stutsman County, and Chad Kaiser are
represented by:
Grant Bakke, Esq.
Randall J. Bakke, Esq.
Shawn A. Grinolds, Esq.
Bradley Neuman Wiederholt, Esq.
BAKKE & GRINOLDS
300 W. Century Avenue
P.O. Box 4247
Bismarck, ND 58502-4247
Telephone: (701) 751-8188
E-mail: rbakke@bgwattorneys.com
sgrinolds@bgwattorneys.com
bwiederholt@bgwattorneys.com
NATIONAL EDUCATION: Ninth Circuit Affirms Dismissal of Wilford Suit
-------------------------------------------------------------------
In the case, SCOTT WILFORD, et al., Plaintiffs-Appellants v.
NATIONAL EDUCATION ASSOCIATION OF THE UNITED STATES, et al.,
Defendants-Appellees, and ATTORNEY GENERAL FOR THE STATE OF
CALIFORNIA, Intervenor-Defendant-Appellee, Case No. 19-55712 (9th
Cir.), the U.S. Court of Appeals for the Ninth Circuit affirmed the
district court's judgment dismissing the Plaintiffs' 42 U.S.C.
Section 1983 putative class action.
Scott Wilford, Bonnie Hayhurst, Rebecca Friedrichs, Michael Monge,
Harlan Elrich, Jelena Figueroa, and Gene Gray appeal from the
district court's judgment dismissing their 42 U.S.C. Section 1983
putative class action alleging First Amendment and state law claims
arising out of compulsory agency fees.
The Ninth Circuit reviews de novo a dismissal for failure to state
a claim and for lack of subject matter jurisdiction. It holds that
the district court properly dismissed the Plaintiffs' claim for
retrospective monetary relief because a public sector union can, as
a matter of law, "invoke an affirmative defense of good faith to
retrospective monetary liability under section 1983 for the agency
fees it collected" prior to the Supreme Court's decision in Janus
v. American Federation of State, County & Municipal Employees,
Council 31, 138 S.Ct. 2448, 2486 (2018).
The Ninth Circuit also holds that the district court properly
dismissed as moot the Plaintiffs' claims for prospective relief
because the Defendants stopped deducting and receiving agency fees
after the Supreme Court's decision in Janus disallowed the
deduction or receipt of agency fees in their collective bargaining
agreements, stopped enforcing statutes permitting the deduction of
agency fees, and demonstrated that they are unlikely to rescind the
policy changes.
Lastly, it finds that the district court properly dismissed the
Plaintiffs' state law claims because they failed to allege facts
sufficient to state a plausible claim.
The Ninth Circuit does not consider matters not specifically and
distinctly raised and argued in the opening brief.
A full-text copy of the Court's Jan. 26, 2022 Memorandum is
available at https://tinyurl.com/mrxnns2k from Leagle.com.
NETWORK RECOVERY: Bucci Sues Over Illegal Debt Collection Practices
-------------------------------------------------------------------
CAROLINE BUCCI, individually and on behalf of all others similarly
situated, Plaintiff v. NETWORK RECOVERY SERVICES, INC., Defendant,
Case No. 1:22-cv-00854 (M.D. Fla., February 1, 2022) is a class
action against the Defendant for violation of the Fair Debt
Collection Practices Act.
The case arises from the Defendant's alleged request of insurance
information in its debt collection letter to the Plaintiff on
November 19, 2021. The Plaintiff was led to believe that it was
important to provide the Defendant with the requested information
about her insurance. The Defendant intended to use any information
provided by the Plaintiff in aid of its collection attempts. The
Defendant made its request for employer information under the guise
of being required information that the Plaintiff should provide in
order for a claim to be submitted to insurance. As a result of the
Defendant's misconduct, the Plaintiff has suffered damages and
other harm, says the suit.
Network Recovery Services, Inc. is a debt collector, with its
principal place of business at 100 Jericho Quadrangle, Suite 202,
Jericho, New York. [BN]
The Plaintiff is represented by:
Joseph K. Jones, Esq.
JONES, WOLF & KAPASI, LLC
One Grand Central Plaza
60 East 42nd. Street, 46th Floor
New York, NY 10165
Telephone: (646) 459-7971
Facsimile: (646) 459-7973
E-mail: jkj@legaljones.com
NEW YORK, NY: Faces Rivera Suit Over COVID-19 Vaccine Mandate
-------------------------------------------------------------
MATTHEW RIVERA, individually, and for all others similarly situated
v. THE CITY OF NEW YORK, ERIC L. ADAMS, MAYOR OF NEW YORK CITY IN
HIS OFFICIAL CAPACITY, NEW YORK CITY DEPARTMENT OF HEALTH AND
MENTAL HYGIENE, DAVE A. CHOKSHI, COMMISIONER OF THE NYC DEPARTMENT
OF HEALTH AND MENTAL HYGIENE IN HIS OFFICIAL CAPACITY, CONSOLIDATED
EDISON COMPANY OF NEW YORK, INC., and UTILITY WORKERS UNION OF
AMERICA, AFL-CIO, LOCAL UNION NO. 1-2, Case No.
1:22-cv-00616-PKC-PK (E.D.N.Y., Feb. 2, 2022) is a civil action
seeking a declaratory judgment, injunctive relief, compensatory
damages, and special damages as it relates to the penalty
provisions of the NYC Vaccine Mandate, the Mandate itself and the
Employment Policy of Defendant as it relates to the Mandate.
This action is challenging the authority of the Defendants' in
issuing Executive Orders 316 and 317 (the "NYC Mandate"). However,
this is not a referendum on whether or not a person should be
required to get the vaccine or whether the vaccine is safe. Rather,
it is an application concerning government overreach and, more
specifically, the Executive Branch taking legislative action in
unilaterally suspending and changing the penalty provisions under
the New York City Administrative Code, says the suit.
In doing so, the former Mayor of New York in executing and Mayor
Adams in continuing said NYC Mandate, allegedly exceeded authority
by taking action vested solely in the Legislature's realm, violated
individuals due process rights (bestowed by both the United States
Constitution and New York State Constitution), mandated excessive
fines and created exemptions to the NYC Mandate that were arbitrary
and capricious.
By such action, the NYC Mandate compelled ConEd to act as agents of
the state and comply therewith and in violation of its collectively
bargained contract and without the defense and protection afforded
its employees through Union inaction.
Given the evolving nature of COVID-19 and its ever-changing
variants, infection is likely to occur regardless of whether a
person is fully vaccinated and/or then taken an additional
"booster" shot. Therefore, the very problem that the NYC Mandate is
attempting to solve and prevent is no longer achieved through the
means which were mandated. Even the CDC recently released a study
evidencing that natural immunity gained by people who have suffered
and recovered from COVID-19 Delta variant was six times more
effective at preventing future infection than the vaccine, added
the suit.
This action seeks injunctive and declaratory relief from New York
City Executive Orders 316 and 317 along with the December 13, 2021,
DOHMH order that mandates the COVID-19 vaccination for all
employees working in New York City (the "NYC Mandate").[BN]
The Plaintiff is represented by:
John A. Weber IV, Esq.
Timothy B. Prakope, Esq.
Robert Mehran, Jr., Esq.
LAW FIRM OF VAUGHN , WEBER & PRAKOPE, P.L.L.C.
393 Jericho Turnpike Suite No. 208
Mineola, NY 11501
Telephone: (516) 858-2620
E-mail: Jweber@VaughnWeberLaw.com
TPrakope@VaughnWeberLaw.com
NORTON OUTDOOR: Denial of Shipps' Bid to Certify Class Affirmed
---------------------------------------------------------------
In the case, JERRY L. SHIPP, and CYNTHIA SHIPP,
Plaintiffs-Appellants v. NORTON OUTDOOR ADVERTISING, INC., and LAL
PROPERTIES, LLC, Defendants-Appellees, Appeal No. C-210150 (Ohio
App.), the Court of Appeals of Ohio for the First District,
Hamilton County, affirmed the judgment of the Hamilton County Court
of Common Pleas denying the Plaintiffs' motion for class
certification.
I. Background
At the center of the case are two, 14-feet-tall by 48-feet-wide
LED-billboards located at 130 West Ross Avenue in the Village of
St. Bernard, Cincinnati, Ohio. The billboards are positioned to
face Interstate 75. They are owned by Norton while LAL Properties
owns the land on which the billboards sit. The Shipps live on West
Ross Avenue and allege that the lights emitted from the
color-changing billboards are a nuisance to them and their
neighbors. Specially, they note that the messages on the billboards
change every eight seconds, resulting in frequent flashes of light
in the neighborhood.
Norton has maintained billboards on the site since the 1970s, but
the controversy was not sparked until 2018 when Norton converted
the traditional billboards to variable message LED-billboards.
Shortly after the new billboards began operating, the Shipps filed
a class-action complaint and jury demand against Norton, LAL
Properties, Flora Byrnes, Leesman Lighting, LLC, and the Village of
St. Bernard. The complaint brought claims for nuisance, trespass,
and negligence against Norton, LAL Properties, Byrnes, and Leesman
Lighting, LLC. The complaint also alleged violations of procedural
and substantive due process under both the United States and Ohio
Constitutions against St. Bernard.
On June 22, 2018, the Shipps voluntarily dismissed Leesman
Lighting, LLC. On June 28, 2018, St. Bernard removed the case to
the U.S. District Court for the Southern District of Ohio on the
basis of federal-question jurisdiction. Once there, the Shipps
voluntarily dismissed St. Bernard, along with their trespass
claims. After unsuccessful attempts to settle the matter in federal
court, the case was remanded back to the Hamilton County Court of
Common Pleas.
Once back in state court, the remaining parties again attempted to
settle, but were not successful. Following that attempt, the Shipps
moved for class certification on Oct. 16, 2019. They sought to
certify the following class: "All owners, renters, and occupants of
residential property located within a Five Hundred (500) foot
radius of Norton Outdoor Advertising, Inc.'s Two Electronic,
Variable Message Billboards located at 130 West Ross Avenue,
Village of St. Bernard from January 17, 2018, onward."
The trial court denied the Shipps' motion to certify, finding that
the proposed class failed to satisfy Civ.R. 23(A) in that it lacked
numerosity, typicality, commonality, and adequacy of
representation. Finding none of these prerequisites to be met, the
court opted not to assess the proposed class under Civ.R. 23(B).
II. Discussion
The Court of Appeals holds that the trial court did not abuse its
discretion when it found that the numerosity requirement was
lacking. Civ.R. 23(A)(1) requires a class to be "so numerous that
joinder of all members is impracticable." Numerosity must be
determined based on the facts of each case, though Ohio courts have
provided approximate ranges to guide the analysis. In Warner v.
Waste Mgt. Inc., 36 Ohio St.3d 91, 96-98, 521 N.E.2d 1091 (1988),
the Ohio Supreme Court noted that greater than 40 members likely
satisfies numerosity, but less than 25 likely does not, and that a
gray area exists between 25 and 40 members. Moreover,
"'impracticability of joinder must be positively shown, and cannot
be speculative.'"
While the Shipps correctly note that the Court of Appeals may draw
reasonable inferences in determining class size, the only support
they provide for their proposition that two people per residence is
a suitable approximation is a reference to the 2010 United States
Census which, they claim, found the average household size in St.
Bernard to be 2.2 people. Given that the proposed class includes
only 23 residences within a 500 foot radius of the signs, it was
not unreasonable for the trial court to refuse to speculate as to
the number of people per household, and to find that it would not
be difficult or inconvenient to identify and join all members of
the proposed class.
The Shipps also have not "positively shown" that joinder is
impracticable. Rather, they have broadly alleged that the modest
incomes of some of the proposed class members may make joinder less
practicable, due to the high cost of individual lawsuits and the
low recovery potential. This speculation is not enough to satisfy
Civ.R. 23(A)(1), particularly where the number of proposed class
members is already low.
III. Conclusion
Based on the evidence before it, the Court of Appeals concluded
that the trial court did not abuse its discretion in finding that
the proposed class did not meet the Civ.R. 23(A)(1) numerosity
requirement. It overruled the assignment of error and affirmed the
decision of the trial court, and did not address the other
requirements that the trial court found to be lacking.
A full-text copy of the Court's Jan. 28, 2022 Opinion is available
at https://tinyurl.com/5yjemhh7 from Leagle.com.
Phillips Law Firm, Inc., John H. Phillips --
JHP@phillipslawfirm.com -- and Kyle E. Hackett --
keh@phillipslawfirm.com -- for the Plaintiffs-Appellants.
Robbins, Kelly, Patterson & Tucker, LPA, Michael A. Galasso --
mgalasso@rkpt.com -- and Robert Ernst, for Defendant-Appellee
Norton Outdoor Advertising, Inc.
Cors & Bassett, LLC, and Michael L. Gay -- mlg@corsbassett.com --
for Defendant-Appellee LAL Properties, LLC.
OHIO: Released From Ball v. DeWine Class Action
-----------------------------------------------
Open Minds reports that on January 6, 2022, a federal judge issued
an order releasing the state of Ohio from the class action lawsuit
Ball v. DeWine as part of a settlement agreement approved by the
court in April 2020 to improve access to home- and community-based
services (HCBS) for people with intellectual/developmental
disabilities (I/DD). In the 2020 agreement, the Governor of Ohio,
the Ohio Department of Developmental Disabilities (DODD), the Ohio
Department of Medicaid (ODM), Opportunities for Ohioans with
Disabilities (OOD), and the Ohio Association of County Boards of
Developmental Disabilities (OACBDD) agreed to continue and expand
programs. [GN]
PARSHIP GMBH: Users Can Join Class Action Over Membership Fees
--------------------------------------------------------------
Anderson Y, writing for Latest Page News, reports that from now on,
users can join a lawsuit against the dating portal Parship. Those
affected can hope for hundreds of euros in reimbursement of
membership fees paid.
If you no longer want to parship, you can possibly join a model
declaratory action brought by the Federation of Consumer
Organizations. "Affected Parship users can now become active,"
explained vzbv consultant Henning Fischer. An entry in the register
of complaints at the Federal Office of Justice is now possible.
Background: vzbv had filed a model declaratory action against the
online dating service. This form of action is similar to the
principle of the class action, which is known from the USA, for
example. Those affected can join the lawsuit without any risk.
Consumer advocates have accused Parship of trying to keep consumers
in expensive contracts over the long term. The platform charges
between 46 and 80 euros per month for contracts, depending on the
minimum term.
This can add up to considerable sums, especially if the contracts
are automatically renewed. From the point of view of the Federation
of Consumer Organizations (vzbv), this is not permissible.
According to the vzbv, contracts with Parship can be terminated
without notice, consumer advocates said.
The reason for the possibility of termination without notice is the
special relationship of trust that users must have with an online
dating agency, because this asks for a large number of private
details. According to the German Civil Code, such contracts can be
terminated without notice; this is already the case for offline
dating.
According to vzbv, all consumers who have purchased a paid
membership with Parship can participate in the model declaratory
action before the Hamburg Higher Regional Court. Anyone who has not
yet terminated their contract can still do so before being entered
in the register of claims, the vzbv explained further.
The vzbv also offers a lawsuit check, which those affected can use
to check whether their own case fits the lawsuit. If the lawsuit is
successful, those affected can then file claims for repayments. The
application can be withdrawn before the oral hearing. [GN]
PAYPAL HOLDINGS: Website Launched in 'Moneymaker' Class Action
--------------------------------------------------------------
The prominent class-action lawsuit filed against PayPal and its
allegedly illegal account confiscation policies has been escalated
with the launching of an intake site where purported victims may
register and potentially join the action. The new site, called
paypalclassaction.net, explains the basics of the action filed two
weeks ago while offering PayPal's alleged victims the chance to
submit their own stories and supporting documentation.
The lawsuit, which has yet to receive official certification as a
class action, was inspired by PayPal's seizure of more than $12,000
from 2003 WSOP Main Event champion Chris Moneymaker. As word of
plans for a lawsuit by Moneymaker became public, PayPal quickly
refunded the funds it had previously seized. By that time, however,
numerous other aggrieved parties had contacted Moneymaker's
attorney, Eric Bensamochan, with similar account-seizure stories.
When filed, the revised action featured another poker pro,
California's Lena Evans, as its lead plaintiff. As the complaint
detailed, Evans , the founder of the women's poker group Poker
League of Nations (PLON), asserted that PayPal had confiscated
nearly $27,000 from one of her PLON accounts without any formal
explanation. Evans replaced the money personally and moved to a
different online wallet, assuring that her group's charitable
operations continued without interruption.
The action as filed includes two other plaintiffs besides Evans,
though over a thousand possible victims have contacted Bensamochan
about joining the suit since news of it became public:
Intake site offers glimpses of PayPal's allegedly illegal seizures
The common theme among the PayPal users' complaints is the method
in which the alleged illegal confiscations occurred. First, the
aggrieved users reported their accounts frozen and inaccessible for
months, while PayPal refused to communicate specifics about why the
accounts had been frozen.
Then, after a minimum of a 180-day period, as stipulated in
PayPal's acceptable use policy (AUP), PayPal then confiscated the
account balances without a specific declaration as to what AUP
violation had occurred. "Your PayPal account is limited, you waited
for ~180 days and you see this message?" the paypalclassaction.net
site asks.
Further, in many instances, PayPal had specifically awarded itself
a $2,500 fine from those balances, debiting the withdrawal as
"damages caused by Acceptable Use Policy violation." In all
instances as filed in the proposed class action, however, the
accountholders were stripped of the entirety of their funds.
Moneymaker remains as advisor to other alleged victims
Though his own potential claim was rendered moot by PayPal's
refund, which he stated arrived without explanation, Moneymaker
remains livid at PayPal and its seizure policies. Moneymaker has
Tweeted and re-Tweeted several news items related to the suit.
Those include the Bensamochan Tweet above and another which
declares that lawful daily fantasy sports play - the specific use
for which Moneymaker's funds were seized - should not have to fear
a service such as PayPal:
"[N]ow we ALL coming @PayPal @AskPayPal," Moneymaker Tweeted on
January 17.
PayPal has had a long anti-gambling history. It enjoyed some
unofficial popularity as a transfer channel to some offshore sites
in online gambling's earliest days. Under perceived threats of
prosecution, similar to what later befell sites such as NETeller,
PayPal has long banned all "gambling"-related transactions. The
giant online wallet has for years been accused of overblocking
otherwise legal services.
Bensamochan, the action's lead attorney, told Poker.org that he was
overwhelmed with the initial response from aggrieved PayPal users.
"The response to the filing of the class action lawsuit against
PayPal has been overwhelming. As a result of the demand and for the
need to keep the community updated, we created
www.paypalclassaction.net along with the Twitter account
@ppclassaction. We will be posting regular updates as the case
progresses. All future inquiries should be emailed to
intake@paypalclassaction.net." [GN]
PELOTON INTERACTIVE: Reportedly Owes Workers Money for Unpaid Labor
-------------------------------------------------------------------
engadget.com reports that Peloton owes at least five of its workers
money for unpaid labor, according to a BuzzFeed News report. The
publication says that in recent months, a Minnesota delivery worker
and a Los Angeles salesperson for the company filed lawsuits
seeking class action status against it over unpaid overtime. Aside
from unpaid labor, the LA salesperson, which worked at Peloton for
over five years, also said he wasn't reimbursed for work expenses
and wasn't paid the full wages required upon termination of
employment.
BuzzFeed also talked to three more workers who raised various kinds
of pay issues. They complained about having to go back to work
after clocking out and not being paid for it, having to work
through breaks and not getting expense reimbursements. One worker
said there were multiple instances wherein he showed up to work,
and there was nothing to do. While Peloton told BuzzFeed that it
pays workers for "a minimum of four hours" of work, the person the
publication interviewed said he was sent home without pay.
Peloton exploded in popularity at the beginning of the pandemic
when gyms were closed and people wanted an exercise machine in
their homes. As BuzzFeed News notes, employees at its New York City
HQ thought it was the best place to work, but it was the company's
sales/video production staff, assembly workers and delivery drivers
that raised concerns about missing pay.
A Peloton spokesperson, however, told BuzzFeed that it provides
paid break time, as per labor laws. The spokesperson also said: "We
are committed to creating an inclusive, kind, and productive
culture where all team members are treated respectfully and have
the tools to succeed. Peloton employees are fairly paid, and we are
committed to adhering to all legal requirements in every state in
which we operate."
According to a CNBC report earlier this month, Peloton is
experiencing a significant drop in demand due to several factors,
such as increased competition from rivals. The report claimed that
the company is pausing Bike and Tread production as a result, but
Peloton CEO John Foley denied that in a letter to employees. He
said that rumors the company is halting the production of its
exercise machines are false, but he did say that Peloton is
"resetting [its] production levels for sustainable growth." He also
said that while layoffs are the last resort as a solution to its
its problems, Peloton now needs to "evaluate [its] organization
structure and size of [its] team." [GN]
PEPPERIDGE FARM: Judge Dismisses Consumer Fraud Class Action
------------------------------------------------------------
Courthouse News Service reports that a federal judge dismissed a
consumer fraud class action against Pepperidge Farm claiming its
golden butter crackers are misleading because they contain
vegetable oil as well as butter, ruling that the company was not
required to use only butter in the recipe in order to label its
product a butter cookie. [GN]
PEPPERIDGE FARM: McMillan NJWPL Suit Removed to D. New Jersey
-------------------------------------------------------------
The case styled COLEMAN MCMILLAN, individually and on behalf of all
others similarly situated v. PEPPERIDGE FARM, INCORPORATED, ABC
CORPORATIONS 1-5, and JOHN DOES 1-5, Case No. PAS-L-004049-21, was
removed from the Superior Court of the State of New Jersey, Passaic
County, to the U.S. District Court for the District of New Jersey
on February 3, 2022.
The Clerk of Court for the District of New Jersey assigned Case No.
2:22-cv-00542 to the proceeding.
The case arises from the Defendant's alleged violation of the New
Jersey Wage Payment Law by misclassifying the Plaintiff and
similarly situated distributors as independent contractors and
subjecting them to improper pay deductions.
Pepperidge Farm, Incorporated is an American commercial bakery
firm, headquartered in Norwalk, Connecticut. [BN]
The Defendant is represented by:
Ann Marie Effingham, Esq.
MORGAN, LEWIS & BOCKIUS LLP
502 Carnegie Center
Princeton, NJ 08540-7814
Telephone: (609) 919-6600
E-mail: annmarie.effingham@morganlewis.com
- and –
Benjamin K. Jacobs, Esq.
MORGAN, LEWIS & BOCKIUS LLP
1701 Market Street
Philadelphia, PA 19103
Telephone: (215) 963-5651
E-mail: benjamin.jacobs@morganlewis.com
PRAIRIE COUNTY, AR: Jackson Suit Seeks OT Wages Under FLSA, AMWA
----------------------------------------------------------------
CAYLA JACKSON, Individually and on Behalf of All Others Similarly
Situated v. PRAIRIE COUNTY, ARKANSAS, Case No. 4:22-cv-00093-JM
(E.D. Ark., Feb. 2, 2022) is a collective action under the Fair
Labor Standards Act and the Arkansas Minimum Wage Act for
declaratory judgment, monetary damages, liquidated damages,
interest and costs, including reasonable attorneys' fees, as a
result of the Defendant's policy and practice of failing to pay
Plaintiff and all other similarly situated employees lawful
overtime compensation for hours worked in excess of 40 per week.
The Defendant allegedly classified Plaintiff as nonexempt from the
overtime requirements of the FLSA and the AMWA and paid her an
hourly rate.
The Plaintiff was employed by the Defendant as a jailer from April
of 2020 until October of 2020, and as a dispatcher from October of
2020 until November of 2021.
The Defendant is a geographic and political subdivision of
Arkansas. The Defendant operates the Sheriff's department wherein
Plaintiff was employed within the three years preceding the filing
of this lawsuit.[BN]
The Plaintiff is represented by:
Colby Qualls, Esq.
Josh Sanford, 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: colby@sanfordlawfirm.com
josh@sanfordlawfirm.com
PRATT & WHITNEY: No-Poach Agreement Harms Engineers, Dominguez Says
-------------------------------------------------------------------
ELIAS DOMINGUEZ, on behalf of himself and all others similarly
situated, Plaintiff v. PRATT & WHITNEY DIVISION; QUEST GLOBAL
SERVICES NA, INC.; BELCAN LLC; CYIENT, INC.; PARAMETRIC SOLUTIONS,
INC.; and AGILIS ENGINEERING, INC., Defendants, Case No.
3:22-cv-00175 (D. Conn., January 31, 2022) is a class action
against the Defendants for violation of Section 1 of the Sherman
Act.
According to the complaint, the Defendants entered into a No-Poach
Agreement to restrict the hiring and recruiting of engineers and
other skilled laborers working on aerospace projects among their
respective companies. The No-Poach Agreement did reduce competition
for engineers' services and, as a result, suppressed the job
mobility of and compensation to the Plaintiff and Class members
below the levels that would have prevailed but for the illegal
No-Poach Agreement. As a result of the Defendants' alleged
misconduct, the Plaintiff and Class members have suffered injury
and have been deprived of the benefits of free and fair competition
for their labor on the merits.
Pratt & Whitney, a division of Raytheon Technologies Corporation,
is an aerospace engine manufacturer, with its principal place of
business in East Hartford, Connecticut.
QuEST Global Services-NA, Inc. is an aerospace engineering firm,
with its principal place of business in East Hartford,
Connecticut.
Belcan LLC is an engineering services supplier, with a principal
place of business in East Hartford, Connecticut.
Cyient, Inc. is a technology company that provides outsource
engineering services, with a principal place of business in East
Hartford, Connecticut.
Parametric Solutions, Inc. is an engineering services company that
provides services in the aerospace industry, with its principal
place of business in Jupiter, Florida.
Agilis Engineering, Inc. is an engineering services company that
provides services in the aerospace industry, with a principal place
of business in Palm Beach Gardens, Florida. [BN]
The Plaintiff is represented by:
Garrett A. Denniston, Esq.
LYNCH TRAUB KEEFE & ERRANTE, PC
52 Trumbull Street
New Haven, CT 06510
Telephone: (203) 787-0275
E-mail: gdenniston@ltke.com
- and –
Elizabeth A. Fegan, Esq.
FEGAN SCOTT LLC
150 S. Wacker Dr., 24th Floor
Chicago, IL 60606
Telephone: (312) 741-1019
E-mail: beth@feganscott.com
QUAD/GRAPHICS INC: Bid to Toss Shaw Suit Denied Without Prejudice
-----------------------------------------------------------------
In the case, SHARITA SHAW, Plaintiff v. QUAD/GRAPHICS, INC., et
al., Defendants, Case No. 20-cv-1645-pp (E.D. Wis.), Judge Pamela
Pepper of the U.S. District Court for the Eastern District of
Wisconsin denied without prejudice the Defendants filed a motion to
dismiss the Plaintiff's claims.
On Oct. 30, 2020, the Plaintiff filed a class action alleging that
the Defendants had violated the duties of loyalty and prudence
required of ERISA-governed defined plan fiduciaries by, among other
things, failing to monitor fees to ensure that they were
reasonable, failing to monitor investments to ensure that they were
prudent, failing to identify and transfer investments to the most
prudent share classes and failure to disclose fees charged to plan
participants.
In lieu of an answer, on Jan. 15, 2021, the Defendants filed a
motion to dismiss the Plaintiff's claims under Federal Rules of
Civil Procedure 12(b)(1) and 12(b)(6). Their motion relied heavily
relied on the Seventh Circuit's decision in Divane v. Northwestern
University, 953 F.3d 980 (2020), and the Plaintiff's response
focused on what the plaintiff characterized as the Defendants'
misreading of that decision. In opposition, the Plaintiff relied
heavily on the Supreme Court's 2015 decision in Tibble v. Edison
Int'l, 575 U.S. 523 (2015). The motion was fully briefed as of Feb.
16, 2021.
Just shy of five months later -- on July 2, 2021 -- the Supreme
Court granted certiorari to review the Seventh Circuit's decision
in Divane. On Jan. 24, 2022, it vacated the Seventh Circuit's
decision and remanded the case for further proceedings. It cited
its 2015 decision in Tibble, asserting that the "categorical rule"
applied by the Seventh Circuit "is inconsistent with the
content-specific inquiry that ERISA requires and fails to take into
account respondents' duty to monitor all plan investments and
remove any imprudent ones."
Given the Defendants' extensive reliance on Divane and other cases
that applied similar categorical rules, Judge Pepper will deny the
Defendants' motion without prejudice. She will require that by the
deadline she sets, the Defendants must file a notice with the court
indicating whether they either (a) need additional time to evaluate
the Hughes decision and its impact on their position in this
litigation, (b) plan to answer or otherwise respond to the
complaint or (c) propose some other option.
Accordingly, Judge Pepper denied without prejudice the Defendants'
motion to dismiss. By the end of the day on Feb. 11, 2022, the
Defendants must file a status report providing the information she
described.
A full-text copy of the Court's Jan. 26, 2022 Order is available at
https://tinyurl.com/2p9ae798 from Leagle.com.
REPUBLIC SERVICES: Class Action Seeks Trash Service Fee Refund
--------------------------------------------------------------
City News Service reports that a proposed class-action lawsuit has
been filed against garbage hauler Republic Services on behalf of a
Carmel Valley resident who alleges the company continued to bill
customers during the month-long strike while trash services were
suspended in various parts of San Diego County.
The company and unionized sanitation workers reached an agreement
to end the labor dispute and resume trash services in various parts
of San Diego and Chula Vista, where trash piled up for weeks.
Republic Services declined to comment on the suit filed Tuesday in
San Diego federal court, which states that plaintiff Qihai Chen was
billed at the regular rate during the work stoppage and has not
been refunded despite the lack of services.
Chen's attorneys also seek to represent county residents charged
for services while their trash was not picked up.
According to the lawsuit, the company "intentionally charged
Plaintiff's and the Class members' debit and credit cards in the
full amount of recurring fees despite the interruption of services
that occurred between December 2021 and January 2022."
It also states, "at the minimum, Defendants could have used the
funds received to hire others to remove the trash while the strike
was active."
Sanitation services resumed Jan. 18, one day after unionized
employees voted to accept the company's final offer. Union leaders
said the agreement provides for wage increases and some
improvements to health insurance, but fell short of what workers
were seeking. [GN]
RHAPSODY INTERNATIONAL: Appeals Atty. Fee Bid Ruling in Lowery Suit
-------------------------------------------------------------------
Rhapsody International, Inc. filed an appeal from a court ruling
entered in the lawsuit styled DAVID LOWERY, et al., Plaintiff v.
RHAPSODY INTERNATIONAL, INC., Defendant, Case No.
4:16-cv-01135-JSW, in the U.S. District Court for the Northern
District of California, Oakland.
The lawsuit arises from the mechanical royalties of certain
copyright holders. The Plaintiffs allege Rhapsody unlawfully
reproduced and distributed certain copyrighted musical compositions
to Rhapsody's users via its music streaming service.
As reported in the Class Action Reporter, the firm filed in the
U.S. District Court of Northern California on February 15, 2019 a
motion for preliminary approval of a settlement that will get
self-published songwriters $35 for every composition Rhapsody
played that's registered with the U.S. Copyright Office and $1 for
every unregistered composition the service played at least 24
times. Like the case against Spotify settled in 2017, this involves
the service's failure to properly license and pay for songwriters'
mechanical rights -- and bringing it to a close will allow Rhapsody
to move forward with less uncertainty.
On March 21, 2019, Judge Jeffrey S. White granted this motion for
preliminary approval.
On January 20, 2022, the Defendant filed a motion to stay
enforcement of attorney fees award for 90 Days, without bond. On
January 28, 2022, Judge White entered an order granting in part and
denying in part the said Defendant's motion.
The Defendant now seeks a review of this order.
The appellate case is captioned as Rhapsody International, Inc. v.
David Lowery, et al., Case No. 22-15162, in the United States Court
of Appeals for the Ninth Circuit, filed on Feb. 2, 2022.
The briefing schedule in the Appellate Case states that:
-- Appellant Rhapsody International, Inc. Mediation
Questionnaire is due today, February 9, 2022;
-- Transcript shall be ordered by March 3, 2022;
-- Transcript is due on April 4, 2022;
-- Appellant Rhapsody International, Inc. opening brief is due
on May 12, 2022;
-- Appellees David Faragher, Victor Krummenacher, Greg Lisher
and David Lowery answering brief is due on June 13, 2022; and
-- Appellant's optional reply brief is due 21 days after service
of the answering brief.[BN]
Defendant-Appellant RHAPSODY INTERNATIONAL, INC., a Delaware
corporation, is represented by:
Karin Kramer, Esq.
QUINN EMANUEL URQUHART & SULLIVAN, LLP
50 California Street, 22nd Floor
San Francisco, CA 94111
Telephone: (415) 875-6422
E-mail: karinkramer@quinnemanuel.com
- and -
William Balden Adams, Esq.
QUINN EMANUEL URQUHART & SULLIVAN, LLP
51 Madison Avenue, 22nd Floor
New York, NY 10010
Telephone: (212) 849-7000
Plaintiffs-Appellees DAVID LOWERY, VICTOR KRUMMENACHER, GREG
LISHER, and DAVID FARAGHER, individually and on behalf of
themselves and all others similarly situated, are represented by:
Mona Hanna, Esq.
Jennifer A. Mauri, Esq.
MICHELMAN & ROBINSON, LLP
17901 Von Karman Avenue
Irvine, CA 92614
Telephone: (714) 557-7990
E-mail: mhanna@mrllp.com
- and -
Sanford Louis Michelman, Esq.
MICHELMAN & ROBINSON, LLP
15760 Ventura Boulevard, 5th Floor
Encino, CA 91436
Telephone: (808) 783-5530
E-mail: smichelman@mrllp.com
RJ REYNOLDS: Hit With $10-MM Verdict Over Bladder Cancer Case
-------------------------------------------------------------
Arlin Cisco, writing for Courtroom View Network, reports that R.J.
Reynolds was hit with a $10 million total verdict for the role
jurors found the company played in the bladder cancer a Florida man
developed after decades of smoking. Rutkowski v. R.J. Reynolds,
2007-CA-014667.
Jurors in Florida's 13th Judicial Circuit handed down the award,
which includes roughly $5 million in compensatory damages and $5
million in punitives, for the bladder cancer Joseph Rutkowski was
diagnosed with in 1993.
Rutkowski, who began smoking as a teenager in the 1950s and
continued until quitting in 1986, claims Reynolds cigarettes, and
the company's involvement in a decades-long conspiracy to hide the
dangers of smoking, hooked him to nicotine and caused his cancer.
Rutkowski's case is one of thousands of so-called "Engle-progeny"
claims, which are spun from a 1990s class action by Florida smokers
against the nation's cigarette makers. After a trial court verdict
in favor of the plaintiffs, the Florida Supreme Court decertified
the class, ruling individual plaintiffs could recover only if they
proved the smoker at the heart of each case was addicted to
cigarettes and that addiction legally caused their disease.
Reynolds contends Rutkowski chose to smoke and wasn't seriously
interested in quitting cigarettes in time to avoid his cancer.
During closings of the trial's phase on class membership and
compensatory damages last Wednesday, Jones Day's John Walker
highlighted evidence that he said showed that Rutkowski's smoking
decisions were driven by his own preferences. And he said Rutkowski
ignored decades of warnings about cigarettes before he successfully
stopped smoking when he was truly motivated to quit.
"That is the real Mr. Rutkowski: the person who made his own
choices about his smoking, choices no one else could have made for
him," Walker said. "And the person who, in fairness, bears personal
responsibility for the consequences of those same choices."
But Rutkowski's attorney, Gordon & Partners' Gary Paige,
highlighted evidence he said proved Rutkowski's smoking was driven
by addiction.
Rutkowski, Paige said, smoked between 1 and 4 packs of cigarettes a
day for 30 years and became irritable and nervous whenever he did
not smoke.
"It would be almost impossible, it probably is impossible, for
somebody to smoke that much, get that much nicotine to the brain,
and change your brain and nicotinic receptors," Paige said, "and
not be addicted to nicotine." [GN]
ROULAND MANAGEMENT: Faces Suit Over Wrongful Used Association Dues
------------------------------------------------------------------
BLACK CREEK STATION HOMEOWNER ASSOCIATION, INC., on behalf of
itself and all others similarly situated, Plaintiff v. ROULAND
MANAGEMENT SERVICES, LLC; DARRELL ROULAND; AIMEE STATHAM; PACIFIC
WESTERN BANK, a wholly owned subsidiary of PacWest Bancorp; and
MUFG UNION BANK, N.A, Defendants, Case No. 2:22-cv-00132-JHE (N.D.
Ala., February 1, 2022) is a class action against the Defendants
for breach of contract, breach of fiduciary duty, theft, money had
and received, theft by deception, fraud, negligence, and vicarious
liability.
According to the complaint, the Defendants breached their fiduciary
duty to the Plaintiff and Class members by wrongfully used
association dues for purposes other than maintenance of common
areas, payment of common expenses, and general upkeep of the
association. Due to such breach, the Plaintiff and Class members
have been severely damaged in that the monies held are now gone,
wasted, and misappropriated due to unauthorized activity and
unauthorized charges, says the suit.
Black Creek Station Homeowners Association, Inc. is a homeowners
association doing business in Jefferson County, Alabama.
Rouland Management Services LLC is a property management company
located in Pelham, Alabama.
Pacific Western Bank is a wholly owned subsidiary of PacWest
Bancorp that does business in Jefferson County, Alabama.
MUFG Union Bank, N.A. is a bank that does business in Jefferson
County, Alabama. [BN]
The Plaintiffs are represented by:
Joseph "Jay" H. Aughtman, Esq.
AUGHTMAN LAW FIRM, LLC
1772 Platt Place
Montgomery, AL 36117
Telephone: (334) 215-9873
Facsimile: (334) 213-5663
E-mail: jay@aughtmanlaw.com
- and –
Nicholas Cole Hughes, Esq.
Matthew Bruce Alfreds, Esq.
ARGO | HUGHES, LLC
475 Providence Main Street, Suite 303D
Huntsville, AL 35806
Telephone: (334) 279-0088
Facsimile: (334) 279-8830
E-mail: nick@argohughes.com
RUBY JEWEL: Ortega Files ADA Suit in S.D. New York
--------------------------------------------------
A class action lawsuit has been filed against Ruby Jewel, LLC. The
case is styled as Juan Ortega, on behalf of himself and all others
similarly situated v. Ruby Jewel, LLC, Case No. 1:22-cv-00937
(S.D.N.Y., Feb. 2, 2022).
The lawsuit is brought over alleged violation of the Americans with
Disabilities Act.
Ruby Jewel -- https://www.rubyjewel.com/ -- is an ice cream
sandwich manufacturer in Portland, Oregon.[BN]
The Plaintiff is represented by:
Joseph H. Mizrahi, Esq.
MIZRAHI & KROUB LLP
200 Vesey St, 24th Floor
New York, NY 11201
Phone: (212) 595-6200
Email: jmizrahi@mizrahikroub.com
SAFE STREETS: E.D. North Carolina Closes Abramson Class Suit
------------------------------------------------------------
Judge Terrence W. Boyle of the U.S. District Court for the Eastern
District of North Carolina, Western Division, issued an order
closing the case, STEWART ABRAMSON, PAUL JONES and MARK FITZHENRY,
ON BEHALF OF THEMSELVES AND ALL OTHERS SIMILARLY SITUATED,
Plaintiffs v. SAFE STREETS USA LLC, and TEKTIKS INNOVATIVE NETWORK
USA INC., Defendants, Case No. 5:19-CV-394-BO (E.D.N.C.).
By order entered Jan. 12, 2022, the Court granted the motion for
final approval of the class action settlement and for entry of
judgment filed by the Plaintiffs. As Defendant Tektiks was not
expressly named in the settlement agreement, the Court ordered the
Plaintiffs to file a status report as to any remaining claim
against Defendant Tektiks.
The Plaintiffs have complied with the Court's order and have
notified the Court that all claims against Tektiks, as an agent of
Defendant Safe Streets, have been released and that the matter can
be terminated as to all the Defendants. The Clerk is, therefore,
directed to close the case.
A full-text copy of the Court's Jan. 26, 2022 Order is available at
https://tinyurl.com/neextsm2 from Leagle.com.
SAN FRANCISCO HEALTH: Johnson Files Suit in Cal. Super. Ct.
-----------------------------------------------------------
A class action lawsuit has been filed against San Francisco Health
Care and Rehab Inc., et al. The case is styled as Jamie Johnson,
individually, on a representative, basis, and on behalf of all
others similarly situated v. San Francisco Health Care and Rehab
Inc., a, California, Does 1 Through 20, Inclusive, Case No.
CGC22597785 (Cal. Super. Ct., San Francisco Cty., Jan. 24, 2022).
The nature of suit is stated as Other Non-Exempt Complaints (Class
Action Complaints).
San Francisco Health Care and Rehab Inc. -- https://sfhcr.com/ --
is a nursing home in San Francisco, California.[BN]
The Plaintiff is represented by:
Peter J. Carlson, Esq.
LAUBY, MANKIN & LAUBY LLP
4590 Allstate Dr.
Riverside, CA 92501-1702
Phone: 951-320-1444
Fax: Not Available
Email: Peter@LMLfirm.com
SARAYA USA: Ortega Files ADA Suit in S.D. New York
--------------------------------------------------
A class action lawsuit has been filed against Saraya USA, Inc. The
case is styled as Juan Ortega, on behalf of himself and all others
similarly situated v. Saraya USA, Inc., Case No. 1:22-cv-00949
(S.D.N.Y., Feb. 2, 2022).
The lawsuit is brought over alleged violation of the Americans with
Disabilities Act.
Saraya USA, Inc. -- https://saraya.world/ -- produces granola and
other health-food products and sweeteners containing monk-fruit, a
non-glycemic natural sweetener. Saraya also makes hygiene products
and personal protective equipment (PPE).[BN]
The Plaintiff is represented by:
Joseph H. Mizrahi, Esq.
MIZRAHI & KROUB LLP
200 Vesey St, 24th Floor
New York, NY 11201
Phone: (212) 595-6200
Email: jmizrahi@mizrahikroub.com
SCIENTIFIC GAMES: Rider to Protective Order in Reed Suit Approved
-----------------------------------------------------------------
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, approved the Parties' Agreed Rider
To Protective Order Regarding The Use And Disclosure Of Discovery
Produced By Nonparty Amazon.com, Inc.
The Plaintiff and Amazon anticipate that Amazon will produce
documents in the action that contain sensitive consumer
information. Their agreement is intended to supplement the
protective ordered entered by the Court on March 8, 2019. Pursuant
to Rule 26(c) of the Federal Rules of Civil Procedure, Judge Lasnik
finds good cause for the Rider.
Amazon Protected Material designated under the terms of the Rider
will be used by the Class Action Administrator and the Parties
solely for the purpose of providing notice to and verifying and
paying the recovery amount owed to each member of the Settlement
Class. Amazon Protected Material will not be used directly or
indirectly for any other purpose whatsoever.
No Amazon Protected Material provided by Amazon to the Class Action
Administrator under the terms of the Rider may be shared with any
of the Parties, unless specifically authorized by the Rider. It is
the intention of Amazon and the Parties that the Rider will protect
all materials produced by Amazon in the Action unless otherwise
specified.
The protections conferred by the Rider cover not only the Amazon
Protected Material governed by this Rider as addressed therein, but
also any information copied or extracted therefrom, as well as all
copies, excerpts, summaries, or compilations thereof, plus
testimony, conversations, or presentations by the Plaintiff or his
counsel in court or in other settings that might reveal Amazon
Protected Material.
Nothing in the Rider will prevent or restrict Amazon's own
disclosure or use of its own Amazon Protected Material for any
purpose, and nothing in the Rider will preclude Amazon from showing
its Amazon Protected Material to an individual who prepared the
Amazon Protected Material.
Even after the termination of the case, the confidentiality
obligations imposed by the Order will remain in effect until a
Producing Party agrees otherwise in writing or a court order
otherwise directs, subject to the Final Disposition clause
therein.
Unauthorized or inadvertent disclosure does not change the status
of Amazon Protected Material or waive the right to hold the
disclosed document or information as Protected
Not later than 90 days after closure of the Final Disposition of
the case, the Parties and the Class Action Administrator will
return all Discovery Material of a Producing Party to the
respective outside counsel of the Producing Party or destroy such
Material, at the option of Amazon. For purposes of the Order,
"Final Disposition" occurs after an order, mandate, or dismissal
finally terminating the above-captioned action with prejudice,
including all appeals. The counsel for the Plaintiff that has
received any such Discovery Material, as well as the Class Action
Administrator, will certify in writing that all such materials have
been returned to the counsel for Amazon or destroyed.
Amazon represents that it will complete production of emails and
spending amounts, directly to the Settlement Administrator, as
promptly as possible, and on Feb. 11, 2022. Amazon further
represents that it will promptly complete production of names,
physical addresses, and phone numbers for class members who spent
over $100, to the extent Amazon is in possession of such
information, though compiling and producing the Supplemental
Information may require additional time and production may not be
complete as of the Court-ordered deadline. The Class Counsel agrees
to further meet and confer in good faith with Amazon regarding
timing of the production of the Supplemental Information, but
reserve their right to pursue appropriate remedies should Amazon
not timely produce the Supplemental Information.
A full-text copy of the Court's Jan. 28, 2022 Order is available at
https://tinyurl.com/yc53bt6b from Leagle.com.
Rafey S. Balabanian -- rbalabanian@edelson.com -- Todd Logan --
tlogan@edelson.com -- Brandt Silver-Korn -- bsilverkorn@edelson.com
-- EDELSON PC, in San Francisco, California.
TOUSLEY BRAIN STEPHENS PLLC Cecily C. Jordan -- cshiel@tousley.com
-- in Seattle, Washington, Plaintiff's Attorneys and Class Counsel
Admitted pro hac vice.
DAVIS WRIGHT TREMAINE LLP, James Howard -- jimhoward@dwt.com --
Ramie Snodgrass -- ramiesnodgrass@dwt.com -- in Seattle,
Washington, Attorneys for Nonparty Amazon.com, Inc.
SERENDIPITY BRANDS: Ortega Files ADA Suit in S.D. New York
----------------------------------------------------------
A class action lawsuit has been filed against Serendipity Brands
LLC. The case is styled as Juan Ortega, on behalf of himself and
all others similarly situated v. Serendipity Brands LLC, Case No.
1:22-cv-00939 (S.D.N.Y., Feb. 2, 2022).
The lawsuit is brought over alleged violation of the Americans with
Disabilities Act.
Serendipity -- https://serendipitybrands.com/ -- in NYC serves up
delicious treats on the daily and deliver nationwide.[BN]
The Plaintiff is represented by:
Joseph H. Mizrahi, Esq.
MIZRAHI & KROUB LLP
200 Vesey St, 24th Floor
New York, NY 11201
Phone: (212) 595-6200
Email: jmizrahi@mizrahikroub.com
SHANGHAI CITY CORP: Huang Reply to Class Cert Opposition Due Feb 18
-------------------------------------------------------------------
In the class action lawsuit captioned as Huang, et al., v. Shanghai
City Corp., et al., Case No. 1:19-cv-07702 (S.D.N.Y.), the Hon.
Judge Lewis J Liman entered an order granting the motion for
extension of time to reply Defendants' opposition to Plaintiffs'
motion for Rule 23 Class Certification.
-- Replies are due by Feb. 18, 2022.
The suit alleges violation of the Fair Labor Standards Act.[CC]
SHAREFAX CREDIT: Class Certification Denial in Jones Suit Reversed
------------------------------------------------------------------
In the case, EILEEN JONES, as substituted Plaintiff-Appellant, for
BRADLEY ENSINGER, and LYNN M. McGOWAN-RUSSELL, Plaintiff v.
SHAREFAX CREDIT UNION, INC., Defendant-Appellee, Appeal No.
C-210260 (Ohio App.), the Court of Appeals of Ohio, First District,
Hamilton County, reversed the judgment of the trial court denying
class-action certification.
I. Introduction
Plaintiff-Appellant Jones, as substituted for Bradley Ensinger, has
appealed from the trial court's judgment denying class-action
certification. Jones argues: (1) the trial court erred in failing
to perform a rigorous analysis of the Civ.R. 23
class-action-certification requirements; (2) the trial court abused
its discretion to the extent it denied class certification on the
basis of Defendant-Appellee Sharefax mootness argument; and (3)
assuming arguendo that the trial court did conduct a rigorous
analysis of the Civ.R. 23 requirements, its decision denying class
certification was an abuse of discretion.
II. Background
Plaintiffs Ensinger and McGowan-Russell purchased vehicles in 2011
and 2015, respectively, from local automotive dealerships. They
financed their purchases through separate retail installment sales
contracts, which were assigned to Sharefax. The Plaintiffs
defaulted on their loans and Sharefax repossessed both vehicles in
December 2017. After repossession, Sharefax sent the Plaintiffs
notices of sale and notices of deficiency.
On June 13, 2018, the Plaintiffs filed a class-action suit,
contending, inter alia, that Sharefax engaged in commercially
unreasonable sales and sent them deficient notices of sale and
deficiency in violation of the Retail Installment Sales Act
("RISA") and the Ohio Uniform Commercial Code (OUCC").
The Plaintiffs alleged that Sharefax's notices of sale violated
RISA because the notices did not state the amount, by itemization,
required to cure the default. They claimed the notices of sale also
violated the OUCC because the notices did not advise them they
could attend the sale and bring bidders. The Plaintiffs alleged
that the notices of deficiency violated the OUCC because the
notices failed to explain the calculation of the deficiency in the
specific order required by R.C. 1309.616(C). Finally, the
Plaintiffs alleged that the sale of the vehicles was commercially
unreasonable because Sharefax failed to notify them of their right
to attend the sale and bring bidders, and then sold the vehicles
for substantially less than the minimum bid price stated in the
notices of sale.
The Plaintiffs claimed that Sharefax had issued the same defective
"form" notices and engaged in commercially unreasonable sales in
other repossession cases involving retail installment sales
contracts. Therefore, they requested class-action certification of
three classes of debtors similarly situated: The RISA class, the
notice-of-sale class, and the notice-of-deficiency class.
The Plaintiffs also requested the following forms of relief:
declaratory judgment, actual damages, an injunction prohibiting
Sharefax from collecting any deficiency and from continuing its
improper practices, statutory damages, restitution/disgorgement of
fees, costs and deficiency balances unlawfully collected, an order
requiring removal of adverse credit information reported by
Sharefax to outside credit reporting agencies, interest, and
attorney fees.
Several of the claims for relief were settled prior to the
class-certification hearing. Through discovery, it became apparent
the Plaintiffs had not paid any repossession fees or deficiency
balances. On Oct. 29, 2019, Sharefax submitted an "Automated
Universal Data" form to the credit reporting agencies requesting
that all negative reporting regarding the Plaintiffs' credit be
removed.
On Nov. 1, 2019, Sharefax filed notices waiving its right to
collect any deficiencies owed by the Plaintiffs. Sharefax also sent
two checks to the Plaintiffs on Oct. 29, 2019 -- one to Ensinger
for $5,500 and one to McGowan-Russell for $9,500 -- but the
Plaintiffs returned the checks without cashing them. Sharefax filed
for summary judgment on the ground of mootness, arguing they had
provided complete relief to the Plaintiffs. The motion was denied
by a judge who retired from the bench shortly thereafter.
On Nov. 11, 2019, the Plaintiffs filed their motion for class
certification. The newly-elected judge held a hearing and denied
certification without explanation by a written entry filed March
23, 2021.
III. Discussion
A. Mootness
Before it addresses Jones' assignments of error, the Court of
Appeals must address the mootness issue raised by Sharefax in its
motion for summary judgment, in opposition to class-action
certification, and on appeal. It argues the case is moot because it
has provided complete relief to the Plaintiffs.
Ms. Jones argues that if the trial court considered the mootness
question at the class-certification stage, that was improper
because the question was already decided by the previous trial
judge when he denied Sharefax's motion for summary judgment.
However, the Court of Appeals notes that the trial court did not
contradict the previous judge's order denying summary judgment
because it specifically did not hold that the case was moot. The
court simply held, without explanation, that the motion for class
certification was denied and allowed the case of the individual
plaintiffs to proceed. Nevertheless, the trial court was free to
revisit the issue of mootness. Therefore, the prior judge's denial
of summary judgment on the basis of mootness did not preclude the
trial court from considering the mootness question at the
class-certification stage.
Next, Jones argues that (1) complete relief was not provided
because Ensinger rejected the check sent by Sharefax, and (2) the
potential recovery of the class representative incentive payment
gives Jones a continuing interest in the litigation. The Court of
Appeals finds that Jones' rejection of the check is dispositive of
the issue, so it does not address whether the potential recovery of
the class representative incentive payment provides Jones with the
requisite interest in the litigation. Jones does not claim the
amount of the check was inadequate. Rather, she argues the
rejection of the check equated to a rejection of Sharefax's offer
to settle the case.
Ms. Jones agrees that the amount of the check sent by Sharefax
would fully satisfy her monetary demands. But Ensinger rejected the
offer and returned the check. The parties are in the same position
monetarily as they were before the offer was made. Therefore,
Jones' claim for monetary damages is still "live" and the case is
not moot.
B. First Assignment of Error
In her first assignment of error, Jones contends the trial court
abused its discretion by not conducting a rigorous analysis of the
Civ.R. 23 factors. Sharefax argues that despite the lack of written
findings, the record demonstrates the trial court did undertake a
rigorous analysis because the court stated that it had read the
parties' briefs thoroughly, held a hearing during which the parties
articulated their arguments on certification and the court asked
questions, and the court did not issue its ruling until 20 days
after the hearing. Additionally, Sharefax contends that the
majority of the Civ.R. 23 factors are not in dispute, which narrows
the grounds upon which the trial court could have denied
certification. Sharefax only challenges the following Civ.R. 23
requirements: Class membership, representative adequacy, and the
predominance and superiority factors under Civ.R. 23(B).
First, the Court of Appeals holds that this is not one of those
"rare" cases where certification is clearly improper. Next, the
fact that the trial court reviewed the briefs and conducted a
hearing does not mean it conducted a rigorous analysis. Finally,
this is not a case where the defendant opposed certification on a
single basis. Because several of the Civ.R. 23 requirements are
disputed, the Court of Appeals is left to guess upon which basis
the trial court denied certification.
The Court of Appeals holds that because the record does not
demonstrate that the trial court conducted a rigorous analysis, it
is unable to properly review for an abuse of discretion. Therefore,
it sustains the first assignment of error.
IV. Conclusion
The Court of Appeals' disposition of the first assignment of error
renders the second and third assignments of error moot. The
judgment of the trial court is reversed and the cause is remanded
for further proceedings consistent with the law and the Opinion.
A full-text copy of the Court's Jan. 26, 2022 Opinion is available
at https://tinyurl.com/2swhsvbu from Leagle.com.
Frederick & Berler, L.L.C., Ronald I. Frederick --
info@clevelandconsumerlaw.com -- Michael L. Berler and Stephen A.
Bailey -- steve@baileylawyer.com -- for the Plaintiff-Appellant.
Bricker & Eckler, L.L.P., and Daniel C. Gibson --
dgibson@bricker.com -- for the Defendant-Appellee.
SHIN'S TRADING: Paguada Files ADA Suit in S.D. New York
-------------------------------------------------------
A class action lawsuit has been filed against Shin's Trading Co.,
Inc. The case is styled as Josue Paguada, on behalf of himself and
all others similarly situated v. Shin's Trading CO., Inc., Case No.
1:22-cv-00928 (S.D.N.Y., Feb. 2, 2022).
The lawsuit is brought over alleged violation of the Americans with
Disabilities Act.
Shin's Trading Co., Inc. doing business as Cala Products --
https://www.calaproduct.com/ -- offers unique variety of skincare,
makeup accessories, and personal care items.[BN]
The Plaintiff is represented by:
Edward Y. Kroub, Esq.
MIZRAHI KROUB LLP
200 Vesey Street, Ste. 24th Floor
New York, NY 10281
Phone: (212) 595-6200
Email: ekroub@mizrahikroub.com
SHIRE US: $1.8M Attys.' Fees, Costs Given in Intuniv Antitrust Suit
-------------------------------------------------------------------
In the case, In re INTUNIV ANTITRUST LITIGATION. This Document
Relates to All Indirect Purchaser Actions, Lead Case No.
16-cv-12396-ADB (D. Mass.), Judge Allison D. Burroughs of the U.S.
District Court for the District of Massachusetts granted the
Indirect Purchaser Plaintiffs' Motion for Attorneys' Fees, Costs,
and Service Awards.
The Court previously approved a Settlement in the action between
the named Plaintiffs who were acting on behalf of a settlement
class of Indirect Purchaser Plaintiffs ("Plaintiffs") and
Defendants Shire U.S., Inc., Shire, LLC, Actavis LLC, Actavis
Elizabeth, LLC, and Actavis Holdco US, Inc., but reserved the issue
of attorneys' fees, costs, and service awards pending additional
submissions by the parties.
In their original motion for fees, costs, and service awards, the
Class Counsel requested: (1) $1,066,177.45 in costs and
expenditures; (2) attorneys' fees totaling 25% of the Settlement
fund, or $737,500; and (3) $20,000 in service awards, which is
$5,000 for each of the four named Plaintiffs.
At the hearing on the Settlement, the Court indicated that the
Plaintiffs' fee request and service awards were reasonable, but
that it was concerned about the costs in proportion to the total
recovery and wanted more detail about the costs (mostly expert
fees). Following the hearing, as requested by the Court, the Class
Counsel submitted supplemental information for in camera review in
support of their costs request, which included information about
the rates charged by their twelve expert witnesses, the number of
hours each expert worked on the case, the allocation of expert
costs between the Plaintiffs in the case and the Direct Purchaser
Plaintiffs in the companion litigation, and Class Counsel's travel
and lodging arrangements.
Judge Burroughs now formally finds that, under the facts of the
case, a fee of 25% of the Settlement fund is reasonable. She notes
that no class members objected to the fee request, and recognizes
the diligent efforts of the Class Counsel in their lengthy and
successful prosecution of the litigation. As such, she is satisfied
that the fee award requested is fair and appropriate. This
conclusion is reinforced by the fact that the 25% represents less
than the lodestar approximation provided by the Class Counsel.
Judge Burroughs additionally approves the service awards for the
four named Plaintiffs, which are appropriate reimbursements for
their level of participation the litigation.
This leaves the issue of costs. The Settlement established a common
fund in the amount of $2.95 million. The requested costs and
expenditures total $1,066,177.45, or more than a third of the total
Settlement amount. Together with the fee percentage and service
awards, the $1,066,177.45 sought by the Class Counsel would, if
allowed, reduce the amount available to the class members from
$2.95 million to $860,710.36, meaning that the costs could
significantly exceed the benefit to the class.
Following a close review of the supplemental materials provided,
Judge Burroughs approves the request for costs, albeit somewhat
reluctantly. She does not intend to diminish the time and effort
expended by the Class Counsel over the four and a half years of the
litigation, including on significant motion practice, extensive
expert and fact discovery involving challenging legal and
cross-disciplinary issues, and negotiating a complex resolution to
this complicated case. She is satisfied that reimbursing the costs
incurred in successfully litigating and resolving the matter to the
benefit of the class is fair and appropriate. She nevertheless
takes this occasion to remind litigants to endeavor to keep costs
under control and to reiterate that the common fund approach does
not give them "carte blanche to spend freely" with the expectation
that they will be reimbursed.
Thus, following a careful review of the supporting documentation
submitted by the counsel, Judge Burroughs finds that the expenses
were reasonably incurred. The motion for fees, costs, and service
awards is granted as follows: (i) the Class Counsel is awarded
$1,066,177.45 in costs from the Settlement fund; (ii) the Class
Counsel are awarded 25% of the Settlement fund in the amount of
$737,500; and (iii) each named Plaintiff is awarded a service award
in the amount of $5,000 from the Settlement fund, totaling
$20,000.
A full-text copy of the Court's Jan. 26, 2022 Order is available at
https://tinyurl.com/3k5hteth from Leagle.com.
SKANSKA AB: Files Appeal in Pensacola Bay Bridge Lawsuit
--------------------------------------------------------
Emma Kennedy, writing for Pensacola News Journal, reports that
Skanska has filed a federal court appeal aiming to overturn a local
judge's ruling that the company was negligent in its actions before
Hurricane Sally, a move that could delay adjacent lawsuits filed by
homeowners, commuters and businesses that are still suffering.
When the storm hit in September 2020, 27 of 55 Skanska barges being
used to construct the Pensacola Bay Bridge broke loose, causing
significant damage to the bridge, as well as some shoreside
property.
U.S. District Court Judge Lacey Collier ruled in December that
Skanska should have done more to prepare for the storm than to tie
its barges to pilings in the Pensacola Bay, and that its executives
should have known based on weather reports that there was a chance
the storm would directly impact Pensacola.
The crux of the federal case was an attempt by Skanska to exonerate
itself from any financial liability for the barges' destruction, or
to limit to the value of the barges at about $1.2 million. Skanska
claimed the impact of the storm was stronger than predicted and
they did as much as possible to prepare, so they should not be held
financially liable for the damage the loose barges caused.
The appeal document filed is not a surprise as Skanska had
indicated soon after the ruling it would seek review, but it does
cast doubt over whether a class action lawsuit and the cases of
more than 1,000 plaintiffs can move ahead in state court while the
appeal is ongoing.
The plaintiffs are made up of people like business owners,
commuters, government entities and residents who experience either
physical damage -- such as a barge washing up on their land -- or
economic impacts when the nine-month closure of the Pensacola Bay
Bridge impacted travel times and passerby traffic to businesses.
Many of the businesses who filed suits in the months after
Hurricane Sally went out of business soon after or are still
struggling to recover financially from the loss.
Yoko McKnight, who owns Flowers by Yoko in Gulf Breeze, is one of
the lawsuit plaintiffs who said she's still struggling from the
impacts of the bridge outage.
Her business is directly at the foot of the bridge and while it's
not the type of business that would get a lot of passerby traffic
like, say, a fast food store, the bridge outage was enough for her
to briefly consider relocating the business if it wasn't for such
high rental prices elsewhere.
"It was a nightmare," she said. "Anything (north) of Gulf Breeze
High School was just dead. I've been surviving, barely surviving,
and it's just enough to pay the rent some months."
McKnight said during the bridge's outage, she'd have to frequently
make the longer commute around the Garcon Point Bridge to her
flower wholesaler in Pensacola, a usually 15-minute trip that
turned into sometimes hours during peak traffic times.
"If somebody said, 'Hey, Yoko, can you send me one dozen pink roses
today?' I'd have to go around the bay and come to Pensacola, which
would take me an hour and a half to do," she said.
The commute times have been back to normal for a while now, but she
said she hopes the lawsuits can move forward quickly as she is
still seeing other businesses neighboring her closing or
rebuilding.
McKnight and the hundreds of other plaintiffs who filed suit in the
months after the storm had their cases put on hold as the issues of
Skanska's alleged negligence played out in federal court this last
year.
Collier's ruling in December freed those cases to resume, but it
will be up to Collier or a federal appeals judge to decide whether
the state court plaintiffs can move ahead in seeking financial
compensation from the construction company while the appeal is
pending.
Skanska representatives did not comment on the appeal filing, but
referred to their previous statement saying the company was
"extremely disappointed" by the ruling.
"Skanska remains adamant that it took all appropriate measures with
the information available at the time to prepare for the storm,"
the statement reads.
Sam Geisler, an Aylstock, Witkin, Kreis and Overholtz attorney
representing the plaintiffs in both federal and state courts, said
Wednesday that he expects the appeal won't have any significant
action until at least this summer.
"The big question is whether that will stop the state court
litigation or not," Geisler said.
The next step in the state court cases would be to certify a class
action status for commuters, an endeavor Geisler said he's
confident in because it's relatively straightforward to calculate
the financial impact of a commuter by factoring in their home,
their work address and the frequency they took alternate routes
during the bridge's outage.
There is not yet a timeline for when the federal court will decide
on the motion to halt the state court cases during appeal. [GN]
SUAVS LLC: Paguada Files ADA Suit in S.D. New York
--------------------------------------------------
A class action lawsuit has been filed against Suavs, LLC. The case
is styled as Josue Paguada, on behalf of himself and all others
similarly situated v. Suavs, LLC, Case No. 1:22-cv-00923 (S.D.N.Y.,
Feb. 2, 2022).
The lawsuit is brought over alleged violation of the Americans with
Disabilities Act.
Suavs, LLC -- https://www.suavshoes.com/ -- offers comfortable
shoes in the world for people on the go.[BN]
The Plaintiff is represented by:
Edward Y. Kroub, Esq.
MIZRAHI KROUB LLP
200 Vesey Street, Ste. 24th Floor
New York, NY 10281
Phone: (212) 595-6200
Email: ekroub@mizrahikroub.com
SUAVS LLC: Paguada Files ADA Suit in S.D. New York
--------------------------------------------------
A class action lawsuit has been filed against Suavs, LLC. The case
is styled as Josue Paguada, on behalf of himself and all others
similarly situated v. Suavs, LLC, Case No. 1:22-cv-00922 (S.D.N.Y.,
Feb. 2, 2022).
The lawsuit is brought over alleged violation of the Americans with
Disabilities Act.
Suavs, LLC -- https://www.suavshoes.com/ -- offers comfortable
shoes in the world for people on the go.[BN]
The Plaintiff is represented by:
Edward Y. Kroub, Esq.
MIZRAHI KROUB LLP
200 Vesey Street, Ste. 24th Floor
New York, NY 10281
Phone: (212) 595-6200
Email: ekroub@mizrahikroub.com
TARGET CORPORATION: Maybaum Consumer Suit Goes to C.D. California
-----------------------------------------------------------------
The case styled LAURA MAYBAUM, individually and on behalf of all
others similarly situated v. TARGET CORPORATION and DOES 1 through
10, inclusive, Case No. 21STCV46229, was removed from the Superior
Court of California for the County of Los Angeles to the U.S.
District Court for the Central District of California on January
31, 2022.
The Clerk of Court for the Central District of California assigned
Case No. 2:22-cv-00687 to the proceeding.
The case arises from the Defendant's alleged negligent
misrepresentation and violations of the California's Unfair
Competition Law, the California's Consumer Legal Remedies Act, and
the California's False Advertising Law by engaging in false,
deceptive and misleading advertising and offering of free gift
cards with purchase of products.
Target Corporation is an American big box department store chain
headquartered in Minneapolis, Minnesota. [BN]
The Defendant is represented by:
Ana Tagvoryan, Esq.
Harrison Brown, Esq.
Nicole N. Wentworth, Esq.
BLANK ROME LLP
2029 Century Park East, 6th Floor
Los Angeles, CA 90067
Telephone: (424) 239-3400
Facsimile: (424) 239-3434
E-mail: ana.tagvoryan@blankrome.com
harrison.brown@blankrome.com
nicole.wentworth@blankrome.com
TITAN SENQUEST: Fails to Properly Pay Nurses, Howatae Suit Claims
-----------------------------------------------------------------
ELLY HOWATAE, individually and on behalf of all others similarly
situated, Plaintiff v. TITAN SENQUEST MANAGEMENT, INC., Defendant,
Case No. 1:22-cv-00163-JG (N.D. Ohio, January 31, 2022) is a class
action against the Defendant for its failure to compensate the
Plaintiff and similarly situated nurses overtime pay for all hours
worked in excess of 40 hours in a workweek in violation of the Fair
Labor Standards Act and the Ohio Revenue Code.
The Plaintiff was employed as a nurse in the Defendant's Wadsworth,
Ohio facility.
Titan Senquest Management, Inc. is an operator of senior living
centers in the U.S. [BN]
The Plaintiff is represented by:
Hans A. Nilges, Esq.
7034 Braucher Street, N.W., Suite B
North Canton, OH 44720
Telephone: (330) 470-4428
Facsimile: (330) 754-1430
E-mail: hans@ohlaborlaw.com
- and –
Robi J. Baishnab, Esq.
1360 E. 9th Street, Suite 808
Cleveland, OH 44114
Telephone: (216) 230-2955
Facsimile: (330) 754-1430
E-mail: rbaishnab@ohlaborlaw.com
TRIPAT LLC: Laufer Files ADA Suit in N.D. New York
--------------------------------------------------
A class action lawsuit has been filed against Tripat, LLC. The case
is styled as Deborah Laufer, individually, on her behalf and on
behalf of all other individuals similarly situated v. Tripat, LLC,
Case No. 5:22-cv-00064-BKS-ML (N.D.N.Y., Jan. 24, 2022).
The lawsuit is brought over alleged violation of the Americans with
Disabilities Act.
TRIPAT, LLC is corporation filed with the New York State Department
of State and is in the Hotels (except Casino Hotels) and Motels
industry.[BN]
The Plaintiff is represented by:
Tristan Wade Gillespie
600 Blakenham Court
Johns Creek, GA 30022
Phone: (404) 276-7277
Email: gillespie.tristan@gmail.com
TURNKEY MERCHANDISE: Ortega Files ADA Suit in S.D. New York
-----------------------------------------------------------
A class action lawsuit has been filed against Turnkey Merchandise
Programs, LLC. The case is styled as Juan Ortega, on behalf of
himself and all others similarly situated v. Turnkey Merchandise
Programs, LLC, Case No. 1:22-cv-00935 (S.D.N.Y., Feb. 2, 2022).
The lawsuit is brought over alleged violation of the Americans with
Disabilities Act.
Turnkey Merchandise Programs (TMP) -- https://www.tmpcompany.com/
-- is a full service merchandising and marketing agency based in
Battle Creek, Michigan.[BN]
The Plaintiff is represented by:
Joseph H. Mizrahi, Esq.
MIZRAHI & KROUB LLP
200 Vesey St, 24th Floor
New York, NY 11201
Phone: (212) 595-6200
Email: jmizrahi@mizrahikroub.com
ULTA SALON: E.D. California Tosses Kabasele's 2nd Amended Complaint
-------------------------------------------------------------------
In the case, DORCAS-COTHY KABASELE, an individual, Plaintiff v.
ULTA SALON, COSMETICS & FRAGRANCE, INC.; and DOES 1-100, inclusive,
Defendants, Case No. 2:21-cv-01639-WBS-CKD (E.D. Cal.), Judge
William B. Shubb of the U.S. District Court for the Eastern
District of California granted the Defendant's motion to dismiss
the Plaintiff's Second Amended Complaint.
I. Background
Plaintiff Kabasele brought the putative class action against
Defendant Ulta Salon, alleging various violations of the California
Labor and Business and Professions Code. The Plaintiff was a
non-exempt, hourly employee at one of the Defendant's stores in San
Ramon, California, from June 2019 to March 2021.
The SAC contains five "causes of action" based upon: (1) failure to
provide meal breaks, Cal. Lab. Code Sections 226.7, 512; (2)
failure to provide rest breaks, id. Sections 226.7, 512; (3)
failure to pay all wages due upon cessation of employment, Sections
201 et seq.; (4) violations of California's Unfair Competition Law,
Cal. Bus. & Prof. Code Sections 17200 et seq.; and (5) violation of
the Private Attorney General Act (PAGA), Cal. Lab. Code Section
2698, et seq.
The Defendant has moved to dismiss the Plaintiff's SAC in its
entirety for failure to state a claim under Federal Rule of Civil
Procedure 12(b)(6).
II. Discussion
A. Claim One & Two: Failure to Provide Meal Breaks
Judge Shubb holds that the Plaintiff's first and second claim for
the Defendant's failure to provide meal and rest breaks will be
dismissed. He finds that the Plaintiff fails to identify even one
specific occasion when she was deprived of a meal or rest break in
compliance with the California Labor Code. The Plaintiff's SAC
contains only conclusory and vague allegations regarding the
Defendant's failure to meet its obligation to provide rest breaks,
stating that she and other employees were "unable to take meal and
rest breaks at all because their store was too busy or
understaffed.
The SAC further fails to allege how the busy and understaffed
nature of the store manifested in lost meal and rest breaks. The
Plaintiff fails to describe whether breaks were not given through
explicit instruction or implicitly due to the busy and understaffed
nature of the store. Judge Shubb cannot assume why the Plaintiff's
breaks were interrupted, even "drawing all reasonable inferences in
their favor." The Plaintiff does not include factual allegations to
describe what the Defendant actually told her or did to impede or
discourage breaks, if anything.
B. Claim Three: Failure to Pay all Wages due Upon Cessation of
Employment
The Plaintiff's third claim alleges that she and other former
employees are entitled to waiting time penalties under California
Labor Code Section 203 for premium pay of "one additional hour of
pay at the employee's regular rate of compensation for each workday
that the meal or rest is not provided," pursuant to Cal. Lab. Code
Section 226.7(c).
Because the Defendant did not pay the premium pay to the Plaintiff
upon discharge, the Plaintiff argues she is entitled to waiting
time penalties. However, as discussed, the meal and rest break
claims will be dismissed. Because the Plaintiff's claim for waiting
time penalties is derivative of the above dismissed claims, it will
also be dismissed.
C. Claim Four: Violation of Unfair Competition Law
The Plaintiff's fourth claim alleges that the above-described
statutory violations are unfair business practices, as defined by
the California Business and Professions Code Section 17200. As he
discussed, Judge Shubb holds that the underlying statutory
violations will be dismissed, and therefore, the Plaintiff's Unfair
Competition Law claim will also be dismissed.
D. Claim Five: PAGA Claims for Labor Code Violations
The Plaintiff has brought claims under PAGA for violations of the
California Labor Code. She alleges that the Defendant "failed to
include commissions, non-discretionary bonuses, and other items of
compensation when determining the aggrieved employees' regular rate
of pay for purposes of overtime, meal and rest break premiums, and
sick pay" and furnished inaccurate wage statements. However, the
SAC provides no details about the "policy and practice," nor which
bonuses, commissions, and other items of compensation were given to
plaintiff that should have been included in the rate of pay.
The Plaintiff argues that "whether or not she specifically
identifies the nature of the bonuses is irrelevant, as there is no
dispute that a commission must be included." But nowhere in her SAC
does she identify any commission that should have been included
beyond stating that "the aggrieved employees were eligible for and
at times received commissions." The Plaintiff alleges her claim in
a general and conclusory manner, which is insufficient to state a
PAGA claim to the extent it relies on a regular rate of pay theory
of liability.
Finally, the Plaintiff alleges that the wage statements furnished
to her and other aggrieved employees inaccurately stated the gross
and net wages earned. She argues these wages are inaccurately
stated in part because defendant failed to pay meal and rest period
premiums. As Judge Shubb discussed, the underlying meal and rest
periods claims will be dismissed, and therefore, the wage statement
claims which are derivative of those claims will also be dismissed.
Plaintiff does not sufficiently allege facts to support any other
theory for the inaccurate wage statement claim, but only makes
conclusory statements regarding the subsections of Section 226 that
were violated. The Plaintiff has not sufficiently alleged a PAGA
claim based on inaccurate wage statements.
Hence, the Plaintiff's fifth claim under PAGA for violations of the
California Labor Code will therefore be dismissed.
III. Disposition
Judge Shubb granted the Defendant's motion to dismiss the
Plaintiff's second amended complaint. The Plaintiff has 20 days
from the date of the Order to file a third amended complaint, if
she can do so consistent with the Order.
A full-text copy of the Court's Jan. 26, 2022 Memorandum & Order is
available at https://tinyurl.com/2mfmrt82 from Leagle.com.
UNCOMMON JAMES: Weekes Files ADA Suit in S.D. New York
------------------------------------------------------
A class action lawsuit has been filed against Uncommon James, LLC.
The case is styled as Robert Weekes, individually, and on behalf of
all others similarly situated v. Uncommon James, LLC, Case No.
1:22-cv-00938 (S.D.N.Y., Feb. 2, 2022).
The lawsuit is brought over alleged violation of the Americans with
Disabilities Act.
Uncommon James, LLC -- https://uncommonjames.com/ -- is located in
Nashville, Tennessee and is part of the Jewelry, Luggage, and
Leather Goods Stores Industry.[BN]
The Plaintiff is represented by:
Edward Y. Kroub, Esq.
MIZRAHI KROUB LLP
200 Vesey Street, Ste. 24th Floor
New York, NY 10281
Phone: (212) 595-6200
Email: ekroub@mizrahikroub.com
UNITED STATES: Deadline to File Joint Report Extended
-----------------------------------------------------
In the class action lawsuit captioned as LUCAS CALIXTO, et. al., v.
UNITED STATES DEPARTMENT OF THE ARMY, et. at., Case No.
1:18-cv-01551-PLF (D.D.C.), the Hon. Judge Paul L. Friedman entered
an order granting the Parties' joint motion for an extension of
time.
The Parties shall meet and confer in accordance with Rule 16.3 of
the Local Civil Rules and shall file a Joint Status Report and
Defendants shall file the certified administrative record on or
before February 15, 2022.
The Plaintiffs shall file their reply in support of Plaintiffs'
renewed motion for class certification and appointment of class
counsel on or before March 1, 2022.
The United States Department of the Army is one of the three
military departments within the Department of Defense of the U.S.
A copy of the Court's order dated Feb. 1, 2021 is available from
PacerMonitor.com at https://bit.ly/34bV6ev at no extra charge.[CC]
UNITED STATES: DOJ's Summary Judgment Bid in Majuc Suit Granted
---------------------------------------------------------------
In the case, JOHNMARK MAJUC and JOSEPH JOK, Plaintiffs v. U.S.
DEPARTMENT OF JUSTICE, Defendant, Case No. 18-cv-566(APM) (D.D.C.),
Judge Amit P. Mehta of the U.S. District Court for the District of
Columbia granted the Defendant's Motion for Summary Judgment.
I. Background
In this Freedom of Information Act ("FOIA") case, the Court
previously held that Defendant Department of Justice had failed to
support its categorical withholdings of all responsive records
pursuant to Exemption 7(A). It denied summary judgment. The
Defendant now tries again.
The records sought in the case relate to a criminal investigation
of BNP Paribas, S.A. ("BNPP") and its affiliates for evading
economic sanctions against various countries, including Sudan. BNPP
pleaded guilty to conspiracy to violate the International Emergency
Economic Powers Act and Trading with the Enemy Act. It completed a
five-year term of probation in 2020.
The Plaintiffs are two Sudanese refugees who are members of a class
action lawsuit against BNPP, which seeks to hold the bank
responsible for its role in human rights abuses committed by the
Sudanese government from 1997 to 2009. In November 2016, the
Plaintiffs submitted a FOIA request to the Defendant for 33
categories of records. Broadly speaking, the request sought all
documents "gathered" or "created" in connection with the
Defendant's investigation of BNPP's violations of law "with respect
to BNPP's dealings with Sudan." The Defendant resisted producing
any records in response. It invoked a variety of exemptions but
asserted Exemption 7(A) as to all records. s noted, after an
initial round of summary judgment briefing, in September 2019, the
Court rejected as inadequate the Defendant's categorical invocation
of Exemption 7(A).
After the Court's decision, the parties reached agreement on search
terms and other aspects of the Plaintiffs' request. One search term
produced nearly 70,000 records, which the Defendant estimated might
entail close to one million pages. The parties then agreed to
narrow the scope of the search and prioritize certain records. That
winnowing still produced over 100,000 pages, which the Defendant
then began to process over the course of months.
Eventually, the Defendant produced two "interim" responses. On
Sept. 22, 2020, the Defendant advised that it had reviewed 888
pages of records but intended to withhold all of them based on
Exemptions 3, 4, 6, 7(A), and 7(C). Then, on Nov. 20, 2020, the
Defendant informed Plaintiffs that it had reviewed an additional
825 pages but that, as before, it intended to withhold all records
pursuant to Exemptions 4, 6, and 7(C).
These non-disclosures prompted the instant round of summary
judgment briefing. The parties agreed that the Defendant would
suspend processing of additional documents and that they would
proceed to contest the exemptions asserted in the two interim
responses.
The Defendant then moved for summary judgment. It took a
categorical approach, organizing the withheld records into eight
groups: (1) "Interview Summary Memoranda," (2) "BNPP Transactional
Data Chart," (3) "Emails," (4) "Document Production Indices," (5)
"Presentation to Government," (6) "Internal BNP Presentations," (7)
"Compliance Memoranda," and (8) "Advice Memoranda from Outside
Counsel." The Defendant asserted various exemptions to justify the
withholdings, including Exemptions 3, 4, 6, 7(A), and 7(C).
II. Discussion
A.
Before turning to the withholdings, Judge Mehta takes up two
threshold contentions made by the Plaintiffs. First, the Plaintiffs
contest the categorical approach taken by the Defendant. They
contend that the "categories are -- on their face -- impermissibly
overinclusive," the "descriptions of each category do little more
than echo the language of FOIA's exemptions in conclusory fashion,"
and the index "lacks both substantive detail and the metadata
typically included in a comprehensive Vaughn Index."
Judge Mehta disagrees. He explains that when "the FOIA litigation
process threatens to reveal the very information the agency hopes
to protect," the agency may limit the information in its affidavits
to just "brief or categorical descriptions of the withheld
information." In the case, an agency takes a categorical approach
with respect to law enforcement records, it "has a three-fold task.
First, it must define its categories functionally. Second, it must
conduct a document-by-document review in order to assign documents
to the proper category. Finally, it must explain to the court how
the release of each category would interfere with enforcement
proceedings."
The Vaughn Index in the case satisfies each of these requirements.
The Vaughn Index consists of five documents: (1) the publicly filed
Declaration of Courtney J. O'Keefe; (2) a spreadsheet attached to
the O'Keefe Declaration that describes the records withheld
("Records Index"); (3) the Ex Parte Declaration of Courtney J.
O'Keefe; (4) the Supplemental Declaration of Courtney J. O'Keefe;
and (5) the Second Ex Parte Declaration of Courtney J. O'Keefe. By
any measure, the Vaughn Index in the case is detailed and
comprehensive. It easily satisfies the requirements of a
categorical approach.
Second, the Plaintiffs challenge the sufficiency of the publicly
filed O'Keefe Declaration. They maintain that the Declaration is
"conclusory and short on detail" and "lacks an evidentiary
foundation for key factual assertions." In particular, the
Plaintiffs complain that O'Keefe has no "personal knowledge of
BNPP's commercial interests" and therefore her representations
regarding BNPP and Exemption 4 "have no probative value."
Neither argument has merit, Judge Mehta opines. To the extent the
O'Keefe Declaration is "conclusory and short on detail" -- and the
court is not suggesting it is either -- he holds that the ex parte
submission more than fills in the gaps. As for their complaint that
O'Keefe lacks personal knowledge when asserting BNPP's commercial
interests, O'Keefe states that the statements made are "on the
basis of personal knowledge" and "on information provided to me by
others within the Criminal Division with knowledge of the search
and documents at issue in the case and on information acquired by
me in the course of performing my official duties in the FOIA/PA
Unit." Courts routinely have held that declarants in FOIA cases can
rely on information obtained through inter-agency consultations
without running afoul of hearsay rules. O'Keefe therefore cannot be
characterized to lack "personal knowledge" of the statements set
forth in her various declarations.
B.
Judge Mehta now turns to the exemptions asserted to withhold all
records. As noted, at issue are Exemptions 3, 4, 6, 7(A), and 7(C).
The agency withheld the first six of eight categories under both
Exemptions 3 and 7(A), among others; it withheld the last two
categories under Exemptions 4, 6, and 7(C) only.
Because he finds that the agency properly withheld the first six
categories under Exemption 7(A), Judge Mehta does not reach
Exemption 3 or any other exemption as to those categories. He also
finds that, with one exception, the agency appropriately invoked
Exemptions 4, 6, and 7(C) as to the last two categories. The
exception pertains to the names of BNPP outside counsel, as to
which the agency has not established any valid personal privacy
interest.
C.
Next, Judge Mehta considers the invocation of Exemptions 6 and 7(C)
to withhold certain information appearing within the last two
categories of records. This includes the "names and identifying
information of BNPP employees" and the "names and identifying
information of outside counsel hired by BNPP."
Exemption 6 exempts from disclosure "personnel and medical files
and similar files the disclosure of which would constitute a
clearly unwarranted invasion of personal privacy." 5 Exemption 7(C)
permits withholding of "records or information compiled for law
enforcement purposes" where disclosure "could reasonably be
expected to constitute an unwarranted invasion of personal
privacy."
As Judge Mehta agrees that Exemption 7(C) applies, there is no need
to consider the more stringent standard under Exemption 6.
D.
Next, Judge Mehta considers the Plaintiffs' global argument that
some records or portions of records must be released because they
are in the public domain. He explains that a plaintiff asserting a
claim of prior disclosure must bear the initial burden of pointing
to specific information in the public domain that appears to
duplicate that being withheld." Perhaps with one exception, the
Plaintiffs have not met their burden. The Plaintiffs have only
pointed to generic descriptions in the Records Index that they
suspect match documents identified in the factual proffer.
The only exception is to a memorandum that is quoted, in part, in
BNPP's factual proffer. But O'Keefe has attested that "none of the
records withheld in the September and November 2020 interim
responses" -- which are the only responses presently at issue --
"match those quoted in the Statement of Facts" associated with
BNPP's plea agreement. She also has represented that "none of the
names listed in Plaintiffs' opposition appear within the records
withheld by the Criminal Division that are at issue in this
briefing."
Judge Mehta accepts these representations and therefore finds that
the agency has met its ultimate burden of persuasion that none of
the withheld records are in the public domain.
5.
And finally, Judge Mehta finds that the Defendant has met its
segregability obligations. O'Keefe has sufficiently established
that there is no segregable information within the withheld
records.
III. Conclusion
For the foregoing reasons, Judge Mehta granted the Defendant's
Motion for Summary Judgment. The parties will submit a Joint Status
Report by Feb. 11, 2022, which proposes a course for further
proceedings in the matter, if required.
A full-text copy of the Court's Jan. 28, 2022 Memorandum Opinion is
available at https://tinyurl.com/bddevbxv from Leagle.com.
UNITED STATES: Reconsideration Bid Denial Appealed in Joelson Case
------------------------------------------------------------------
Plaintiff MAXWELL RANGEL JOELSON filed an appeal from a court
ruling entered in the lawsuit entitled MAXWELL JOELSON, and JUAN
VALDEZ, on behalf of all others similarly situated, Plaintiffs v.
UNITED STATES OF AMERICA, Defendant, Case No.
3:20-cv-01568-TWR-KSC, in the U.S. District Court for the Southern
District of California, San Diego.
On August 13, 2020, Plaintiffs, proceeding pro se, filed a putative
class action against Defendant United States of America and
numerous federal judges and prosecutors. The Plaintiffs asserted 19
causes of action under the Federal Tort Claims Act and the Alien
Tort Claims Act, alleging misconduct in the post-trial and habeas
process by the named federal judges and prosecutors.
On November 3, 2020, the Court issued an Order granting Plaintiffs'
Motion to Proceed in Forma Pauperis. In the Order, the Court
screened the Complaint sua sponte, as required by 28 U.S.C. Section
1915(a). The Court found that Plaintiffs' claims were predicated on
the actions of federal prosecutors and judges, who were absolutely
immune from liability. The Court further found that a judgment in
favor of Plaintiffs would necessarily imply the invalidity of their
convictions or sentences, which had not been reversed, expunged, or
invalidated, and therefore Plaintiffs' claims were barred by Heck
v. Humphrey, 512 U.S. 477 (1994). The Court granted Plaintiffs'
leave to amend the Complaint.
After filing a First Amended Complaint, the Plaintiffs then filed a
Second Amended Complaint on August 26, 2021. Although Plaintiffs
did not request or receive leave to amend the First Amended
Complaint, on November 12, 2021, the Court granted Plaintiffs leave
to file the Second Amended Complaint pursuant to Federal Rule of
Civil Procedure 15(a)(2), which the Court then dismissed with
prejudice on the same grounds as the original Complaint pursuant to
28 U.S.C. Section 1915(e)(2)(B). The Clerk entered judgment
accordingly.
On November 30, 2021, the Plaintiffs, contending that the Court
"misapplied and misapprehended federal law," raised arguments for
reconsideration of the Court's dismissal of their Second Amended
Complaint.
On December 9, 2021, Judge Todd W. Robinson entered an order
denying Plaintiff Joelson's Motion for Reconsideration.
The Plaintiff seeks a review of this ruling.
The appellate case is captioned as Maxwell Joelson, et al. v. USA,
Case No. 22-55122, in the United States Court of Appeals for the
Ninth Circuit, filed on Feb. 1, 2022.
The briefing schedule in the Appellate Case states that Appellants
Maxwell Rangel Joelson and Juan Valdez opening brief is due on May
5, 2022.
Plaintiff-Appellant MAXWELL RANGEL JOELSON, and on behalf of all
others similarly situated, appears pro se.[BN]
UNITED STATES: Robert Appeals Mandatory Vaccine Suit Dismissal
--------------------------------------------------------------
Plaintiffs DAN ROBERT, et al., filed an appeal from a court ruling
entered in the lawsuit entitled DAN ROBERT, SSG, U.S. Army, HOLLIE
MULVIHILL, SSgt, U.S. Marine Corps, and other similarly situated
individuals, v. LLOYD AUSTIN, in his official capacity as Secretary
of Defense, U.S. Department of Defense, XAVIER BACERRA, in his
official capacity as Secretary of the U.S. Department of Health and
Human Services, and JANET WOODCOCK, in her official capacity as
Acting Commissioner of the U.S. Food and Drug Administration, Case
No. 1:21-cv-02228-RM-STV, in the United States District Court for
the District of Colorado - Denver.
The Plaintiffs are members of the military who were stationed in
North Carolina when they brought this action on behalf of
themselves as well as all other similarly situated active-duty
National Guard and Reserve service members who are subject to
Department of Defense regulations and have been ordered by the
Secretary of Defense, Defendant Austin, to take a Covid-19
vaccine.
As "documented survivors of Covid-19," they assert that they have
acquired immunity that is "at least as effective" as that achieved
via vaccination, and they seek temporary and permanent injunctive
relief preventing their forced vaccination.
In addition to asserting class action allegations, the Amended
Complaint asserts claims for (1) violation of the Administrative
Procedure Act, (2) violation of 10 U.S.C. section 1107, (3)
violation of 10 U.S.C. section 1107a, (4) violation of 50 U.S.C.
section 1520, and (5) violation of the Fourteenth Amendment.
As reported in the Class Action Reporter on Jan. 24, 2022, the Hon.
Judge Raymond P. Moore entered an order:
1. denying the Plaintiffs' motion for preliminary injunction;
2. granting Defendants' motion to dismiss; and
3. denying the motion for leave.
The Plaintiffs seek a review of this ruling.
The appellate case is captioned as Robert, et al. v. Austin, et
al., Case No. 22-1032, in the United States Court of Appeals for
the Tenth Circuit, filed on Feb. 2, 2022.
The briefing schedule in the Appellate Case states that:
-- Docketing statement, transcript order form, and notice of
appearance are due on February 16, 2022 for Hollie Mulvihill and
Dan Robert; and
-- Notice of appearance is due on February 16, 2022 for Lloyd J.
Austin, Xavier Becerra, and Janet Woodcock.[BN]
Plaintiffs-Appellants DAN ROBERT, SSGT, U.S. Army; and HOLLIE
MULVIHILL, SSGT, USMC and other similarly situated individuals, are
represented by:
Todd Samson Callender, Esq.
DISABLED RIGHTS ADVOCATES
600 17th Street, Suite 2800 South
Denver, CO 80202
Telephone: (303) 228-7065
E-mail: todd@dradvocates.com
- and -
Dale F. Saran, Esq.
DALE F. SARAN, ATTORNEY AT LAW
19744 116th Terrace
Olathe, KS 66061
Telephone: (508) 415-8411
E-mail: dalesaran@gmail.com
Defendants-Appellees LLOYD J. AUSTIN, in his official capacity as
Secretary of Defense, U.S. Department of Defense; XAVIER BECERRA,
in his official capacity as Secretary of the U.S. Department of
Health and Human Services; and JANET WOODCOCK, in her official
capacity as Acting Commissioner of the U.S. Food and Drug
Administration, are represented by:
Andrew Erin Carmichael, Esq.
U.S. DEPARTMENT OF JUSTICE CILVIL DIVISION
20 Massachusetts Avenue, Northwest
Washington, DC 20530
Telephone: (202) 514-3346
- and -
Courtney D. Enlow, Esq.
U.S. DEPARTMENT OF JUSTICE CIVIL DIVISION
1100 L Street Northwest
Washington, DC 20530
Telephone: (202) 616-8467
UNIVERSITY OF MICHIGAN: 1,000+ Students Sexually Abused, Says Suit
------------------------------------------------------------------
Amy Woodyatt at CNN reports that throughout the bitter winter,
during rain and snow, Jon Vaughn has alternated between sleeping in
a tent or a campervan outside former University of Michigan
President Mark Schlissel's house.
A former University of Michigan and NFL football player, Vaughn is
one of more than 1,000 people - mostly men - who says they were
abused by athletics doctor Robert Anderson, who worked for the
university from 1966 to 2003 treating students across sports
including football, track, and wrestling.
Anderson, who died in 2008, subjected students, 90% of whom were
men, to "sexually abusive conduct" and invasive exams, including
unnecessary genital and rectal examinations, according to a 2021
independent report commissioned by the university. Many of
Anderson's victims were Black - and survivors say this has played a
part in why the abuse was allowed to continue for decades.
In his roles at the university, including director of its health
service, team physician for the athletic department and a clinical
instructor at the university's medical school, Anderson abused men
and women from different racial backgrounds, undergraduate and
graduate students, student athletes - including a two-time Super
Bowl champion and former world-class wrestler - and members of the
lesbian, gay, bisexual, transgender, and queer community, the
report found.
The university missed numerous opportunities to stop him over his
37 year long career, it concluded.
This month the university announced a $490 million settlement with
over a thousand victims of Anderson's alleged sexual abuse, pending
approval by the Michigan Board of Regents and the claimants.
But despite the settlement, the University is still facing calls to
take responsibility for its role in the abuse, which spanned more
than three decades - as well as the university's failures to
address alleged present day sexual misconduct and abuse by and of
students and university staff.
Victims say that despite knowledge of Dr. Anderson's predatory
behavior, U of M failed to take any action, and instead chose to
continue enabling Dr. Anderson's abuse of vulnerable young men
until his voluntary retirement in 2003.
"They've shown that over the last half century… [they're]
uninterested in student safety as a priority," Vaughn, who played
for U of M from 1988 to 1990 said.
"They've shown the inability to police themselves on a consistent
basis, as pertains to sexual assault," he said.
Schlissel - who was fired this month from his position as President
following an anonymous complaint suggesting that he "may have been
involved in an inappropriate relationship with a University
employee" - has apologized for Anderson's "tragic misconduct," and
said in a statement that the university is committed to resolving
victims' claims.
But Vaughn, 51, who was recently diagnosed with thyroid cancer and
has been protesting for more than 100 days says he will continue to
sleep outside the university president's house until the University
of Michigan addresses historic and alleged present day abuse, after
realizing how "acute" issues of sexual assault, violence and rape
are on campus.
Vaughn is also one of many involved in hundreds of individual
lawsuits and a class-action lawsuits filed against the University
and the Board of Regents by survivors.
Black men treated differently
The allegations against Anderson mirror those against disgraced USA
Gymnastics doctor Larry Nassar at Michigan State University and
Richard Strauss at Ohio State University. They too were doctors who
abused their trusted positions to sexually exploit college students
and athletes.
With more than a thousand people - mostly men - coming forward to
say they were abused by Anderson, attorneys representing the
victims say it may be the largest case of sex abuse by a single
person in the US. The scale of the alleged abuse surpasses that at
Michigan State, Ohio State, and similar incidents at other US
universities.
But the case has received nowhere near as much media coverage as
that of the abuse of Nassar.
A disproportionate number of the victims are African American,
Vaughn told CNN.
"I don't think the world right now is ready to complete that
spectrum of the face of abuse and include African-American men,"
Vaughn told CNN.
Attorney Mike Cox, who is representing 174 victims in confidential
federal court mediation with the University of Michigan told CNN
that some 40% of the 1000 Anderson victims are African American
men.
"We have not done a formal analysis because all are victims and
viewed equally in that sense. But clearly the amount of African
American victim survivors is much, much higher than their numbers
in American society," Cox told CNN over email.
Black Americans represent just 13.4% of the American population.
The percentage of African American survivors is also "dramatically
higher" than their percentages as part of the UM student base, Cox
said.
The University of Michigan agreed to work toward a goal of 10%
African American enrollment by 1973, but did not reach this goal:
Black student enrollment had declined by 1987 to 5.3% of the
student body from the high of 7.7% in 1976 and never reached the
10% goal targeted by administrators in the early '70's.
From the 1980s until 1996, there was a 10% increase in African
American student enrollment. However, efforts to increase African
American enrollment to reflect the Michigan state's 14% Black
population have been unsuccessful, according to the university.
Vaughn said it took years for him to even recognize what had
happened to him as abuse, and that in communities of color, "for
men to even discuss their abuse is seen as a weakness. In those
communities, you're forced to be tough and strong."
"We've been fighting to have a voice, just typically in this
country, for over 400 years, we're constantly and have historically
been marginalized, or dehumanized in so many ways. So I really
think those two factors create this perfect storm," he said.
Attorney Parker Stinar, who represents around 200 of the survivors,
agreed, adding that Anderson's case has not received anywhere near
as much media coverage or public recognition as other sex abuse
cases because the vast majority of survivors are older, Black men.
"For Larry Nassar, you had prominently White, 30-year-old women,
whereas for Dr. Anderson, the vast majority of the survivors are
Black and in their 50s, 60s and 70s. This case is overlooked in
part because of that," he told CNN.
"I think our society looks down on men who are sexually abused, let
alone big, strong, athletic, Black men who are sexually abused,
compared to female survivors of abuse," Stinar added. "Because they
have this societal influence that asks men: How can they allow
themselves to be sexually abused?"
Rebecca Wanzo, professor of Women, Gender, and Sexuality Studies at
Washington University, St. Louis, told CNN that race plays a
significant part in whether or how violence and abuse is reported
by the media.
"If you don't have someone who's the face of something that they
[the media] put forward, or seems like an ideal victim that people
want to tell a story about, historically, that is something that
can really affect the ability of a story to travel," she
explained.
This, she said, is often an issue when it comes to reporting issues
like sexual abuse and murder.
"Systemic violence often tends to get less attention, which is why
violence against people of color, systemic violence in general, in
terms of class and other factors, isn't reported," she said.
Racist stereotypes
"We don't have a language to talk about Black as rapeable in the
US, because the racist stereotypes of Black men as the rapist and
as violent stops us from looking at data that's been collected by
the CDC for the last decade," Tommy Curry, professor of philosophy
and personal Chair of Africana Philosophy and Black Male Studies at
The University of Edinburgh told CNN.
Nearly 1 in 5 (19.4%) non-Hispanic Black men have experienced
contact sexual violence - which includes rape, being made to
penetrate someone else, sexual coercion, and unwanted sexual
contact - in their lifetime, according to the CDC's National
Intimate Partner and Sexual Violence Survey 2010-2012, which is the
latest published data broken out by race or ethnicity.
Social psychology data shows "Black men are always perceived as
being taller, more aggressive, or violent, more prone to conflict,
more athletic than they actually are," Curry said.
"And it's those social perceptions that have been linked to forms
of dehumanization - likening them to apes, sorts of primal beasts
and animals - that fit into how we think of Black men, both as
athletes and as kind of super predators, as superhuman."
Former gymnast Trinea Gonczar, who testified against Larry Nassar,
told CNN that in her work supporting victims of sexual abuse, she
has learned "that most men, no matter what, if they've been
assaulted, they won't report based on more shame."
Nassar, the longtime doctor for the USA Gymnastics team and
Michigan State University, is serving a 60-year sentence in federal
prison on child pornography charges, and was also sentenced to a
40-to-175 year state prison sentence in Michigan after pleading
guilty to seven counts of criminal sexual conduct.
Gonczar has been spending time with Vaughn in his protest to show
solidarity with abuse survivors at the University of Michigan.
"In my case, as a privileged woman, my perpetrator is in jail, we
received a settlement. I'm White, and I come from an expensive, per
se, sport: you have to have money to have to be in that sport,"
Gonczar said.
Gonczar now works as director of development at the Avalon Healing
Center, which provides support for victims of sexual abuse.
"I've had to learn that I am a privileged, White person, and all
abuse is not the same," she said.
There are several reasons why Black men choose not to report abuse,
Curry told CNN.
"We know from interviews with Black male victims that it's not only
the pressures of not being believed - but it's also being perceived
as the aggressor," he explained.
Curry said that his research had shown that in domestic violence
cases, Black men would stay in situations of abuse, or they would
not report victimization.
"They fear that the police or the criminal justice system or
society is going to view them as the perpetrator and they'll be
criminalized even harsher than the kinds of abuse and violence that
they suffer," Curry said.
When Black men report that they have been victimized by others,
"different stereotypes activate", Curry added.
"A lot of racists would say, 'No, he was really the aggressor, he
tried to rape me, I wouldn't rape a man. It wasn't me. This person
was violent or aggressive, or he's a drug dealer, a thief.'
"All these racial stereotypes are utilized to undercut the
credibility of Black men who are victims in ways that other groups
don't have to deal with," he said.
Conditions that enable abuse
Attorney Stephen Estey told CNN that Anderson was easily able to
take advantage of his victims. "Some of these men, they came from
the inner city [which had] not the best healthcare in the back of
the day," Estey, who represents some 80 survivors, said.
"Some of them never had a physical [examination], and so they
didn't know what a physical should have been. And Dr. Anderson
would tell them, if you want to play football, it's part of the
process," Estey told CNN.
Wanzo said that a nationwide commitment to protecting athletic
programs "particularly makes Black people vulnerable in the US
because they are disproportionately often in some of these
programs."
Anderson first served as a University Health Services doctor and
was moved to the Athletic Department in 1981 after "credible
reports of misconduct" were relayed to the then Assistant Vice
President of Student Services Thomas Easthope in late 1978 or 1979,
according to the WilmerHale report.
"The fact that they switched him out of general care to the
athletic program as if they [athletes] were sort of disposable
people says a lot about how the institution thought about how to
deal with the problem person: they value athletics as institution,
but the people who participate in athletics and make some money are
disposable."
Vaughn told CNN that there are a "number of dynamics" aside from
race that help perpetuate "this culture of abuse in sport."
"I think it is the athlete's dedication to this specific sport, and
the overwhelming trust that they tend to have in their coaches and
trainers because of the focus that it takes to be successful in
sport," Vaughn said.
Coaches and medical staff are often the most powerful people in a
child and student athlete's life, he added.
If sports create the perfect conditions for abuse, then
institutions are failing to regulate themselves, survivors say.
"It's really the institutions that are protecting their brands, and
the position that they hold within that sport, because they really
want that sport to be a catalyst for their financial gain instead
of taking concern about their sports doctors who are actually
predators," Gonczar, a gymnast who was treated by Nassar for 15
years, and who estimates that she was molested some 856 times,
said.
A number of the women said they had reported Nassar's abuse
previously but that the systems of authority, including USA
Gymnastics, the US Olympic and Paralympic Committee and Michigan
State University, did not take their concerns seriously.
"Absolutely not enough has changed," Gonczar said.
"In the US it's taking so long to just simply get these big
institutions to be aware and to be willing to be accountable and
transparent, and to have people in the leadership roles that are
willing to facilitate that," Gonczar warned.
Campus abuse between students ongoing issue
The University of Michigan finalized a new sexual and gender based
misconduct policy in September, but critics say abuse and assault
between students and by university staff still isn't being dealt
with well enough.
Vaughn said that since he has been protesting, he has been
approached by students who have told him of their own experiences
of sexual assault and abuse at the university.
There were 157 allegations of sexual assault reported to the
University's Office for Institutional Equity (OIE) from July 1,
2019 through June 30, 2020, according to its yearly report.
The University's Division of Public Safety and Security, which
records incidents reported to the DPSS, law enforcement agencies
and campus security authorities, described 18 on campus rapes and
31 reports of fondling not associated with Anderson in 2020.
Some 106 reports of sexual assault were made to the University's
Sexual Assault Prevention and Awareness Center (SAPAC) in 2020,
down from 151 in 2019 and 168 in 2018.
There were 77 reported instances of sexual harassment and 57
reports of stalking, according to the University's Division of
Public Safety and Security, which provided the data as "additional
information regarding crime reports on campus."
Campus enrollment in 2019 stood at 48,090 students, and 47,907
enrolled in 2020.
"All the reporting agencies within the university have essentially
failed all the students and all the student athletes, because
they've done nothing to support in any consistent manner, or
protect in any consistent manner," Vaughn said.
"Professors have said if you support or even help report a
student's standpoint, it's like a career suicide," he added.
Some 42.4 percent of Michigan students said they had experienced at
least one type of harassing behavior since entering school, and
more than a quarter (26.9 percent) of undergraduate women reported
nonconsensual sexual contact, according to a campus climate survey
regarding sexual misconduct.
Out of women who say they experienced harassment, 8.9 percent of
Michigan undergraduates reported the person was a teacher, advisor,
boss, supervisor, or co-worker compared to an average of 4.8
percent of undergraduates and across the 33 schools surveyed in the
overall survey, which looked at responses from a total of 181,752
students from 33 colleges and universities.
Some 31.8 percent of graduate or professional Michigan students
reported their harasser to be a teacher, advisor, boss, supervisor,
or co-worker, compared to an average 16.5 percent in the overall
survey.
The overall survey found that the 33 schools surveyed, more than
half of undergraduate women (59.2%) and transgender, genderqueer,
and non-binary students (65.1%) reported experiencing at least one
harassing behavior.
"I speak to a lot of students, many of them feel like with the
assaults that have happened to them, that the university has not
been able to deal with it properly," Charlie Kolean, chairman of
Michigan Students Against Sexual Assault told CNN.
"Typically, a case will not be criminally referred. And
additionally, a lot of survivors from assault, they don't want to
go through the university's process reporting the assault, because
it is fairly arduous," he added.
Emma Sandberg, a former student and founder of activism group Roe
v. Rape told CNN: "Overall, it is very difficult to be a survivor
at U of M. The sexual assault prevention center doesn't provide any
real resources, university leadership has engaged in sexual
misconduct themselves, and those who go through the all-consuming
Title IX process are traumatized by it and rarely receive justice,
support, or validation.
"We need a supportive center for survivors, not just a preventative
one, and we need more effective prevention methods at all levels,"
Sandberg, who graduated in in 2021, said.
In addition to Anderson, at least five current and former
university professors and officials have faced accusations of
sexual harassment or abuse in the last few years.
In a statement to CNN, Rick Fitzgerald, associate vice president of
Public Affairs and Internal Communications at the University of
Michigan said: "We encourage every incident of misconduct to be
reported and we take action," pointing towards the university's
annual report for further details.
"SAPAC has a 30-year history of supporting and advocating for
survivors of sexual misconduct, through a range of supportive
services, based on individual needs," he said, pointing towards the
university's confidential resources for students and staff.
He added: "The University of Michigan always has taken sexual
misconduct seriously and we have been increasing our efforts
steadily," and that a Sexual Assault Prevention and Awareness
Center has been on campus for almost 40 years.
Fitzgerald added that any case that involves criminal behavior is
"first turned over to police and the ECRT investigation is put on
hold so that criminal activity can always be addressed first."
Vaughn wants the university to overhaul its approach to
misconduct.
"You cannot only celebrate parts of your history, you must deal
with your entire history in order to root it out and change that
culture," he said.
"Because the longer you ignore it, the more you perpetuate it and
the more it empowers other predators, because they're watching the
lack of discipline, or consequences for serial predators and
rapists that then gives others the green light to make those
decisions and prey on young men and young women."
Co-lead class counsel attorney E. Powell Miller told CNN his team
is seeking "class action relief for reforms, policies and
procedures to prevent an Anderson problem from occurring again."
Attorney Jonathan Selbin, co-lead class counsel in a class action
suit against the University, told CNN: "While paying money to the
victims is a critical first step, U of M must also commit to
system-wide changes that bring all of the stakeholders together to
reform the campus and institutional culture and prevent abuses like
this from ever occurring again."
Vaughn wants the university to create programs that empower
students to report instances of sexual violence, and strengthen
mechanisms to protect students.
Last July, the university announced revisions to how it will
address sexual misconduct, including the creation of a new office
with "significant" new resources for support, education and
prevention. The office was launched in August.
"I knew that there was nothing that I could do in my protest to
change what happened to me. But we could uncover the truth here at
Michigan, and also make this place safer for now, and in the
future, so that these atrocities don't continue to happen," Vaughn
said.
"We want to change the narrative, as well as the culture. So until
that's done, I won't be leaving." [GN]
USF REDDAWAY: Rodriguez Labor Suit Removed to E.D. California
-------------------------------------------------------------
The case styled CARLOS RODRIGUEZ, individually and on behalf of all
others similarly situated v. USF REDDAWAY INC., YRC WORLDWIDE,
INC., YELLOW CORPORATION, and DOES 1 through 100, inclusive, Case
No. STK-CV-UOE-2021-11198, was removed from the Superior Court of
California for the County of San Joaquin to the U.S. District Court
for the Eastern District of California on January 31, 2022.
The Clerk of Court for the Eastern District of California assigned
Case No. 2:22-at-00123 to the proceeding.
The case arises from the Defendants' alleged violations of the
California Labor Code including failure to pay overtime wages,
failure to provide meal periods, failure to provide rest periods,
failure to pay minimum wages, failure to pay timely wages at
termination, failure to timely pay wages during employment, failure
to provide complete and accurate wage statements, failure to keep
complete and accurate payroll records, and failure to reimburse
necessary business-related expenses and costs.
USF Reddaway Inc. is an American less than truckload trucking
company based in Tualatin, Oregon.
YRC Worldwide, Inc. is a less-than-truckload shipping company,
headquartered in Overland, Kansas.
Yellow Corporation is an American transportation holding company,
headquartered in Overland Park, Kansas. [BN]
The Defendant is represented by:
Ronald J. Holland, Esq.
Pankit J. Doshi, Esq.
Saniya Ahmed, Esq.
MCDERMOTT WILL & EMERY LLP
415 Mission St., Suite 5600
San Francisco, CA 94105-2533
Telephone: (628) 218-3800
Facsimile: (628) 877-0107
E-mail: rjholland@mwe.com
pdoshi@mwe.com
sahmed@mwe.com
VOLT MANAGEMENT: Ramirez Wage-and-Hour Suit Removed to E.D. Cal.
----------------------------------------------------------------
The case styled BEATRIZ RAMIREZ, individually and on behalf of all
others similarly situated v. VOLT MANAGEMENT CORP.; IKEA
DISTRIBUTION SERVICES, INC.; and DOES 1 through 100, inclusive,
Case No. BCV-21-102735, was removed from the Superior Court of the
State of California for the County of Kern to the U.S. District
Court for the Eastern District of California on February 1, 2022.
The Clerk of Court for the Eastern District of California assigned
Case No. 1:22-cv-00132-DAD-BAK 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 pay minimum wage for all hours worked,
failure to pay overtime wages for daily overtime worked, failure to
provide meal periods, failure to provide rest periods, failure to
timely pay earned wages during employment, failure to provide
complete and accurate wage statements, failure to timely pay all
earned wages at time of separation of employment, and unfair
business practices.
Volt Management Corp. is a provider of recruitment and staffing
services based in California.
IKEA Distribution Services, Inc. is a home furnishing company based
in New Jersey. [BN]
The Defendant is represented by:
Shareef S. Farag, Esq.
Vartan S. Madoyan, Esq.
Vivian Y. Shen, Esq.
BAKER & HOSTETLER LLP
11601 Wilshire Boulevard, Suite 1400
Los Angeles, CA 90025-0509
Telephone: (310) 820-8800
Facsimile: (310) 820-8859
E-mail: sfarag@bakerlaw.com
vmadoyan@bakerlaw.com
vshen@bakerlaw.com
WEMAGINE.AI LLP: N.D. Illinois Dismisses Gutierrez BIPA Class Suit
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In the case, RICARDO GUTIERREZ, ON BEHALF OF HIMSELF AND OTHERS
SIMILARLY SITUATED, Plaintiff v. WEMAGINE.AI LLP, Defendant, Case
No. 21 C 5702 (N.D. Ill.), Judge Thomas M. Durkin of the U.S.
District Court for the Northern District of Illinois, Eastern
Division, granted Wemagine's motion to dismiss for lack of personal
jurisdiction.
I. Background
Plaintiff Gutierrez brought the putative class action against
Defendant Wemagine, alleging violations of the Illinois Biometric
Information Privacy Act ("BIPA"), 740 Ill. Comp. Stat. 14/1, et
seq.
Wemagine is a limited liability partnership incorporated in Canada.
Ricardo Gutierrez is an Illinois citizen. It develops and owns a
mobile application, Voila AI Artist, which uses artificial
intelligence to extract a person's face from a photo and transform
it to look like a cartoon. Wemagine collects the facial geometry
and biometric data of Voila users.
On Sept. 23, 2021, Gutierrez filed a two-count class action
complaint against Wemagine, alleging violations of BIPA.
Specifically, Gutierrez alleges Wemagine violated Sections 15(b)
and 15(d) of BIPA when it collected, captured, used, and stored
Gutierrez's biometric data without first obtaining a written
release and by disclosing or otherwise disseminating his biometric
information without obtaining written consent, as is required by
the statute.
Wemagine filed its motion to dismiss on Nov. 1, 2021, arguing this
Court lacks jurisdiction over Wemagine.
II. Analysis
Mr. Gutierrez argues Wemagine has sufficient minimum contacts with
Illinois because it has over 5,000 Viola users in Illinois, which,
Gutierrez contends, shows Wemagine purposefully availed itself and
directed its data collection efforts in the forum state. Gutierrez
further argues that his claims arise out of or relate to Wemagine's
Illinois conduct -- namely, the collection of Illinois residents'
biometric data from their use of Viola.
Wemagine contends it has not purposefully availed itself to the
privilege of conducting business in Illinois, as it is essentially
an interactive website and did not specifically direct any business
to Illinois. It points to ample case law from the circuit and
district which is in line with its position -- e.g., be2LLC v.
Ivanov, 642 F.3d 555, 558-59 (7th Cir. 2011) (explaining that a
defendant must "in some way target the forum state's market" beyond
"simply operating an interactive website that is accessible from
the forum state"); Gullen v. Facebook, 2016 WL 245910, *6 (N.D.
Ill. Jan. 21, 2016) ("[The Seventh Circuit has rejected the notion
that an online merchant's operation of an interactive website is
sufficient to confer specific jurisdiction on it in every state
from which it can be accessed.").
Judge Durkin agrees with Wemagine. The only connection between
Wemagine and Illinois is Gutierrez. Gutierrez chose to download the
Viola app. There was no directed marketing specific to Illinois,
and the fact that Viola is used by Illinois residents does not, on
its own, create a basis for personal jurisdiction over Wemagine.
Put simply, there must be a stronger connection between Illinois
and Wemagine to subject Wemagine to court proceedings in this
district.
This holding is in line with recent holdings in the circuit and
district -- those Courts that found personal jurisdiction were
presented with a more significant connection to Illinois than
Gutierrez has shown. The Seventh Circuit found personal
jurisdiction in Curry v. Revolution Labs., LLC, where online
purchasers selected an Illinois shipping address, received a
confirmation email confirming their Illinois address, and received
products in the mail. Similarly, in King v. PeopleNet Corp.,
personal jurisdiction existed where the defendant had provided
products and services to the plaintiff's employer. The defendant in
King entered into business contracts with multiple Illinois
businesses and shipped devices to them. The district court found
that the defendant purposefully availed itself when it "sought out
the Illinois timekeeping market."
Mr. Gutierrez only alleges that Viola is available and used by
Illinois residents. Unlike the defendants in King and Curry, there
is no evidence that Wemagine purposefully directed any of its
conduct toward Illinois, did any Illinois-specific shipping,
marketing, or advertising, or sought out the Illinois market in any
way. Indeed, Wemagine is not registered to do business in Illinois,
has no employees in Illinois, and any alleged harm in this case was
occasioned by Gutierrez's conduct of downloading and using the
Viola App.
Due process requires that a defendant be haled into the forum state
based on its own affiliation with the state, not "random,
fortuitous, or attenuated" contacts made by interacting with
persons affiliated with the state. Judge Durkin opines that the
only contact with the forum state is Gutierrez (and other members
of the putative class) downloading an app and using it. This
attenuated contact is not sufficient for the Court to exercise
personal jurisdiction over Wemagine, and to do so would essentially
be to hold that Wemagine is subject to personal jurisdiction in the
entire United States, because Viola is available nationwide (as
well as internationally).
Because Gutierrez has not demonstrated that Wemagine has minimum
contacts with Illinois or directed its suit-related actions at
Illinois so as to subject it to the Court's jurisdiction, Judge
Durkin must dismiss his complaint for lack of personal
jurisdiction.
III. Conclusion
For the reasons he set forth, Judge Durkin granted Wemagine's
motion to dismiss for lack of personal jurisdiction. If Gutierrez
wishes to seek leave to file an amended complaint, he must do so no
later than 21 days from the entry of the Order. Any motion for
leave to amend must include a copy of the proposed amended
complaint, a redline version showing changes from the original
complaint, and a brief of no more than five pages explaining how
the proposed amended complaint cures the deficiencies identified in
the Opinion.
A full-text copy of the Court's Jan. 26, 2022 Memorandum Opinion &
Order is available at https://tinyurl.com/bdz5fytw from
Leagle.com.
WESTGATE PALACE: Steines Sues Over Financing Violations Under MLA
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ADAM U. STEINES and MIRANDA L. STEINES, individually and on behalf
of all others similarly situated, Plaintiffs v. WESTGATE PALACE,
L.L.C., WESTGATE RESORTS, INC., WESTGATE RESORTS, LTD., L.P.,
CENTRAL FLORIDA INVESTMENTS, INC., WESTGATE VACATION VILLAS, LLC,
and CFI RESORTS MANAGEMENT, INC., Defendants, Case No.
8:22-cv-00283-CEH-JSS (M.D. Fla., February 2, 2022) is a class
action against the Defendants for violation of the Military Lending
Act (MLA) and unjust enrichment.
According to the complaint, the Defendants violated the MLA by: (a)
failing to determine whether the Plaintiffs were covered borrowers
in connection to the financing they obtained from Westgate Palace
to purchase a Time Share Accommodation at the Westgate Palace
resort in Orlando, Florida; (b) failing to calculate an accurate
interest rate pursuant to the MLA; (c) failing to disclose a
Military Annual Percentage Rate (MAPR) orally; (d) failing to
provide MLA disclosures in a separate writing; and (e) requiring
covered borrowers to agree to mandatory arbitration clauses. As a
result of Westgate's numerous violations of the MLA, the agreements
between Westgate and the Plaintiffs were void from their inception,
making it inequitable for Westgate to retain the benefits it
received based upon the void agreements, and requiring it to
disgorge to the Plaintiffs all amounts they paid in connection with
or pursuant to the illegal and void agreements, says the suit.
Westgate Palace, L.L.C. is a company that sells and finances
timeshare interests throughout the United States, headquartered in
Orlando, Florida.
Westgate Resorts, Inc. is a resort owner and operator, with its
principal place of business in Orlando, Florida.
Westgate Resorts, Ltd., L.P. is a resort owner and operator, with
its principal place of business in Orlando, Florida.
Central Florida Investments, Inc. is a resort owner and operator,
with its principal place of business in Orlando, Florida.
Westgate Vacation Villas, LLC is the general manager of Westgate
Resorts, Ltd., with its principal place of business in Orlando,
Florida.
CFI Resorts Management, Inc. is a resort owner and operator, with
its principal place of business in Orlando, Florida. [BN]
The Plaintiffs are represented by:
Janet R. Varnell, Esq.
Brian W. Warwick, Esq.
Matthew T. Peterson, Esq.
Erika R. Willis, Esq.
VARNELL & WARWICK, P.A.
1101 E. Cumberland Ave., Ste. 201H, #105
Tampa, FL 33602
Telephone: (352) 753-8600
Facsimile: (352) 504-3301
E-mail: jvarnell@vandwlaw.com
bwarwick@vandwlaw.com
mpeterson@vandwlaw.com
ewillis@vandwlaw.com
kstroly@vandwlaw.com
- and –
Craig E. Rothburd, Esq.
Dylan J. Thatcher, Esq.
CRAIG E. ROTHBURD, P.A.
320 W. Kennedy Blvd., #700
Tampa, FL 33606
Telephone: (813) 251-8800
Facsimile: (813) 251-5042
E-mail: craig@rothburdpa.com
dylan@rothburdpa.com
maria@rothburdpa.com
- and –
Scott R. Jeeves, Esq.
Kyle W. Woodford, Esq.
JEEVES LAW GROUP, P.A.
2132 Central Avenue
St. Petersburg, FL 33712
Telephone: (727) 894-2929
E-mail: sjeeves@jeeveslawgroup.com
kwoodford@jeeveslawgroup.com
rmandel@jeevesmandellawgroup.com
khill@jeeveslawgroup.com
- and –
Roger L. Mandel, Esq.
JEEVES MANDEL LAW GROUP, P.C.
2833 Crockett St., Suite 135
Fort Worth, TX 76107
Telephone: (214) 253-8300
E-mail: rmandel@jeevesmandellawgroup.com
WHOLE FOODS: Loses Bid to Dismiss Franklin Discrimination Suit
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In the case, HENRY FRANKLIN, on behalf of himself and others
similarly situated, Plaintiff v. WHOLE FOODS MARKET GROUP, INC.,
AMAZON.COM, INC., CORNUCOPIA LOGISTICS, LLC. Defendants, Case No.
20-CV-4935 (VEC) (S.D.N.Y.), Judge Valerie Caproni of the U.S.
District Court for the Southern District of New York denied the
Defendants' motion to dismiss the Plaintiff's amended complaint.
I. Background
In the putative class action, Henry Franklin sued Whole Foods,
Amazon, and Cornucopia, for employment discrimination based on his
criminal history in violation of (1) the New York State Human
Rights Law ("NYSHRL"), N.Y. Exec. Law Section 292, et seq.; (2) the
New York City Human Rights Law ("NYCHRL") as amended by the Fair
Chance Act, N.Y.C. Admin. Code Section 8-101, et seq.; and (3) the
New York State Fair Credit Reporting Act ("NY FCRA"), N.Y. Gen.
Bus. Law Section 380, et seq.
In April 2019, Franklin applied for a job as a delivery worker with
Cornucopia, a vendor that has a contract with Amazon to provide
delivery workers for its subsidiary Whole Foods. Franklin has a
criminal history; he was paroled from prison in 2018 after serving
nearly 25 years on a conviction for second-degree murder. He
contends that the job application, which was posted by Cornucopia
on a recruiting website, stated that applicants must consent to a
background check as part of the job application process. Amazon and
Whole Foods claim Franklin answered "no" when asked as part of his
application whether he had any prior convictions.
Shortly after Franklin completed the online application, he alleges
that he received a letter from Amazon informing him that Amazon had
performed a background check and would make a final decision on his
application in 10 days. The letter further invited him to contact
the screening company, Accurate Background, Inc., if he wanted to
dispute the accuracy of the Background Report. Franklin alleges
that he received another letter from Amazon two weeks later,
informing him that his application had been denied "in whole or in
part" due to information contained in the Background Report.
On June 26, 2020, Franklin filed the action against Amazon and
Whole Foods. On Sept. 25, 2020, he amended his complaint and added
Cornucopia as a Defendant. Franklin alleges that the Defendants
unlawfully discriminated against him based on his criminal history
and that they used discriminatory screening policies and practices
in violation of the NYSHRL, the NYCHRL, and the NY FCRA.
The Defendants moved to dismiss the FAC for failure to state a
claim pursuant to Rule 12(b)(6) and for lack of standing pursuant
to Rule 12(b)(1).
II. Discussion
A. Defendants' Motion to Dismiss for Failure to State a Claim
To survive a motion to dismiss under Rule 12(b)(6), "a complaint
must allege sufficient facts, taken as true, to state a plausible
claim for relief." A claim is facially plausible when the factual
content pleaded allows a court "to draw the reasonable inference
that the defendant is liable for the misconduct alleged." When
considering a Rule 12(b)(6) motion to dismiss, the Court draws all
reasonable inferences in the light most favorable to the
plaintiff.
1. Franklin Has Adequately Alleged that Whole Foods and Amazon Were
His Prospective Employers
Judge Caproni opines that while he may have a very tough row to hoe
on this point at the summary judgment stage, Franklin has pled
adequately, although just barely, that Amazon and Whole Foods were
prospective employers. He finds that the Plaintiff's complaint is
largely conclusory. Franklin alleges, with no factual support, that
"Amazon controls every aspect of Cornucopia's employees'
employment, including supervising their work and training them to
utilize Amazon proprietary technology to perform their work."
Although it is a very close question, Judge Caproni finds that the
Plaintiff has barely alleged adequately that Amazon and Whole Foods
have sufficient control over Cornucopia's employees that they can
be considered Franklin's employer, alongside Cornucopia. Whether
the Plaintiff can sustain that position at summary judgment remains
to be seen.
2. Franklin Has Stated a Claim of Employment Discrimination Under
the NYSHRL
The Defendants do not appear to contest that Franklin has
adequately alleged the first three elements of a prima facie case:
His criminal history puts him in a protected category; he is
qualified to work as a delivery worker; and he suffered an adverse
employment action when he was not hired. They assert that he has
not adequately alleged because he has not alleged facts that "give
plausible support to a minimal inference of discriminatory
motivation."
First, Judge Caproni opines that construing the allegations in the
complaint in the light most favorable to Franklin, he has pled
adequately that this exception does not apply. Franklin has also
pled adequately that the second exception, that the employment
would involve an unreasonable risk to persons or property, does not
apply. In short, because Franklin has adequately alleged that
neither of the Article 23-A exceptions apply, he has adequately
alleged facts from which the Court can infer a minimal inference of
discriminatory motivation.
Second, Judge Caproni finds that Franklin has stated a claim that
the adverse employment action (failure to hire) was related to his
protected class (criminal history). Accordingly, because the
Defendants have cited no relevant case law to support their
contention that it is appropriate to consider their alleged
legitimate reason for not hiring Franklin on a motion to dismiss,
Judge Caproni declines to do so. In short, because Franklin has
pled a prima facie case of discrimination, the Defendants' motion
to dismiss Franklin's NYSHRL claim is denied.
3. Franklin Has Stated a Claim of Employment Discrimination
Pursuant to the NYCHRL
NYCHRL utilizes a more liberal standard to assess employment
discrimination claims than NYSHRL. Because Franklin has stated a
claim pursuant to the more stringent standards of the NYSHRL, he
has necessarily stated a claim under NYCHRL.
B. Franklin Has Adequately Alleged that He Has Standing as to His
Procedural Claims
To have standing pursuant to Article III of the Constitution, a
plaintiff must adequately allege: (1) a concrete, particularized,
actual, or imminent injury-in-fact; (2) a causal connection between
the injury and the conduct complained of such that the injury is
"fairly traceable to the challenged action of the defendant;" and
(3) it must be likely, as opposed to merely speculative, that the
injury will be redressed by a favorable decision from the Court. At
the pleading stage, "general factual allegations of injury
resulting from the defendant's conduct may suffice," although the
factual allegations must be sufficient to put injury-in-fact into
the realm of the plausible,.
Franklin alleges that the Defendants violated several statutory
procedural requirements enacted to safeguard against employment
discrimination on the basis of criminal history. The alleged
violations include: (1) failure to provide Franklin with an
opportunity to submit evidence of rehabilitation and good conduct
in violation of the NYCHRL; (2) an unlawful inquiry into Franklin's
criminal history prior to making him a conditional offer of
employment in violation of the NYCHRL; (3) failure to provide
Franklin with a copy of the Defendants' analysis of the Article
23-A factors and an opportunity to respond in violation of the
NYCHRL89; and (4) reliance on a consumer report revealing
Franklin's criminal background without first providing him with a
copy of his rights under Article 23-A in violation of the NY FCRA.
The Defendants argue that Franklin lacks standing to assert those
"bare procedural violations." But a plaintiff has standing to
assert a procedural violation when she alleges a concrete interest
affected by the violation of that procedural right. In the case,
there is no question that Franklin has alleged violations of
procedural interests tied to his concrete interest of participating
in an employment application process that is free from
discrimination based on criminal history. Franklin has stated a
claim of employment discrimination based on his criminal history.
At this stage of the proceedings, that concrete interest is enough
to confer standing over the alleged procedural violations.
First, Judge Caproni holds that Franklin has alleged that the
Defendants' failure to adhere to the required procedures has
facilitated Defendants' discrimination against him based on his
criminal history. Accordingly, Franklin is not alleging bare
procedural violations wholly untethered to a concrete injury.
With respect to causation, the Defendants argue that Franklin has
failed to connect the injury-in-fact with their conduct. They,
however, focus on only one of the concrete injuries alleged by
Franklin: that he was not hired. Although it is true that Franklin
has not alleged adequately that he would have been hired had the
hiring process complied fully with Article 23-A, he has plausibly
alleged that was denied the opportunity to participate in a fully
compliant Article 23-A process.
Moreover, Judge Caproni finds that injury is plausibly connected to
the Defendants' actions because they allegedly engaged in the
discriminatory process and allegedly failed to comply fully with
Article 23-A. Accordingly, Franklin has adequately alleged that the
injury is "fairly traceable to the challenged action of the
Defendants." In short, the Plaintiff has standing to pursue his
procedural claims.
III. Conclusion
For the reasons she discussed, Judge Caproni denied the Defendants'
motion to dismiss. She will refer the parties to the Court-annexed
Mediation Program by separate order. The Clerk of Court is
respectfully directed to terminate the open motions at docket
entries 33 and 42.
A full-text copy of the Court's Jan. 26, 2022 Opinion & Order is
available at https://tinyurl.com/2p8dfbfp from Leagle.com.
WIDENER UNIVERSITY: E.D. Pennsylvania Tosses Brezinski Class Suit
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In the case, SARA BREZINSKI, individually and on behalf of all
others similarly situated v. WIDENER UNIVERSITY, Civil Action No.
20-cv-4939-JMY (E.D. Pa.), Judge John Milton Younge of the U.S.
District Court for the Eastern District of Pennsylvania granted the
Defendant's Motion to Dismiss.
I. Introduction
In reaction to government mandated closures and the
life-threatening consequences of the novel coronavirus outbreak, in
early 2020, Widener University shuttered its campuses. Rather than
come to a grinding halt, however, Widener moved its classes online.
Many would agree that these measures were prudent and unavoidable.
But how Widener has managed the financial aspects of the process
has become a central concern for Plaintiff Brezinski and the other
students, who have paid thousands of dollars in tuition and fees.
What followed is a putative class action complaint alleging the
inability of Widener, with brick-and-mortar locations, to deliver
services as promised as it transitioned from in-person courses to
an online learning model. The Plaintiff has alleged that because
Widener cancelled all in-person activities and instruction, that
she and other similarly situation students were deprived of the
benefit of their bargain. In particular, the Plaintiff argues that
she received a materially different education of reduced value than
what she and other students were promised.
The case, like many similar actions filed against educational
institutions throughout the country, present novel legal issues
about what happens when the unexpected occurs, and the only written
expression of the parties' agreement -- such as course catalogs,
registration materials and student handbooks -- hardly look like a
comprehensive contract.
II.
Plaintiff Brezinski was a full-time graduate student pursuing a
Master's of Education in Human Sexuality Studies at Widener
University. On Jan. 13, 2020, classes for the spring semester began
at Widener and were scheduled to end on May 8, 2020. For the spring
semester, the Plaintiff paid $5,800 out-of-pocket to the Defendant
in tuition and certain mandatory fees, such as a technology,
graduate student and health fee.
Prior to enrolling in Widener's spring 2020 semester and paying
tuition and fees, the Plaintiff consulted Widener's course catalog
and the course registration process. The online registration
process at Widener permitted students to pick classes that were
"On-Line" or at the "Main Campus" location. For the classes the
Plaintiff registered for, none made any mention of online learning.
Indeed, course specific syllabi included information regarding the
on-campus class location such as the building and classroom number
along with meeting dates and times. Widener's class attendance
policy emphasized that "regular attendance and class participation
are important factors in student learning," and that faculty are
"expected to articulate this idea and to monitor student progress
and attendance regularly," but nothing implied in-person learning.
The Plaintiff alleges that her understanding and belief was that
every course she was enrolled in, was to be taught in-person. She
also alleges that she "would not have paid as much, if any, tuition
for the Spring 2020 semester at Widener had she known that the
courses would not, in fact, be taught in-person." The Plaintiff
states in her Complaint that Widener's tuition and fees for
in-person learning are higher than for online courses and
programs.
The Plaintiff asserts that the on-line learning options offered by
Widener, and which she received, was in no way equivalent to the
in-person education she paid for, depriving her of the opportunity
for collaborative learning and in-person dialogue, feedback, and
critique. She also alleges that she has not received a refund for
any portion of her tuition or fees paid for this semester, despite
the fact that in-person classes were shut down.
As a result, on Oct. 6, 2020, the Plaintiff brought thr action on
behalf of herself, and others similarly situated, seeking a partial
refund of tuition and fees paid to Widener University, asserting
breach of contract, unjust enrichment, conversion and money had and
received common law claims. On Nov. 30, 2020, the Defendant filed
its Motion to Dismiss.
III. Discussion
A. Breach of Contract
In its Motion, the Defendant argues that the Plaintiff's
allegations are tantamount to an educational malpractice claim,
which is not cognizable under Pennsylvania law. Under Pennsylvania
law, which applies in the diversity action, there is a distinction
between an action for breach of a contractual obligation and one
for educational malpractice; while the former may be maintained,
the latter may not. The prohibition on educational malpractice
claims stems from the court's recognition of the subjective nature
of what constitutes a quality education, the lack of a workable
standard of care, and the need to afford flexibility to educational
institutions.
The Plaintiff's Complaint, however, is not challenging the quality
of Widener's education. Rather, she simply argues that the value of
in-person classes and the on-campus experience that Defendant
allegedly promised is greater than the remote learning that she
experienced. In other words, the Plaintiff alleges Widener retained
payment for services that were not delivered. As the majority of
courts, including within the District, have concluded, this type of
claim is grounded in contract, not educational malpractice, and
therefore, is justiciable.
Judge Younge holds that the Plaintiff's breach of contract claim
boils down to her belief that the traditional model of in-person
education is implied for brick-and-mortar educational institutions.
But the only Pennsylvania case law permitting an implied theory
supports the right to an education and degree, not the method and
means. And while there are other courts holding that there is
implied right to an in-person education, there is nothing in
Pennsylvania law supporting that contention. Therefore, Judge
Younge grants the Defendant's Motion to Dismiss as to the
Plaintiff's breach of contract claim.
B. Unjust Enrichment
In the alternative to a breach of contract claim, the Plaintiff
brings a claim for unjust enrichment. Under Pennsylvania law, a
plaintiff may not recover under a theory of unjust enrichment if
the parties' relationship is governed by a written contract.
Nevertheless, "a party may plead alternative theories of breach of
contract and unjust enrichment when there is a dispute about the
existence or validity of the contract in question."
In the case, however, Judge Younge finds that both the Plaintiff
and Widener agree that there is a contract that governs the
parties' relationship. Widener does not argue that there was no
valid contract, it simply alleges that the contract did not
obligate Widener to provide an in-person education. In such
circumstances, even when pled in the alternative, it is appropriate
to dismiss a claim for unjust enrichment. Therefore, Judge Younge
will dismiss the Plaintiff's unjust enrichment claim.
C. Conversion
The Plaintiff is also suing for conversion. Widener argues that her
claim for conversion is barred by the gist of the action and
economic loss doctrines. Conversion is a tort by which the
defendant deprives the plaintiff of his right to a chattel or
interferes with the plaintiff's use or possession of a chattel
without the plaintiff's consent and without lawful justification.
The doctrine prevents a plaintiff from recovering under a tort
theory when the plaintiff's only loss is purely economic.
In the case, the contract between the Plaintiff and Widener is not
incidental to the wrong complained of -- the Plaintiff alleges that
the Defendant was contractually obligated to provide an in-person
education. The gravamen of the Plaintiff's allegations is that
Widener provided a materially different service when it shifted
classes online, than what was promised. Further, the Plaintiff
seeks solely economic damages for the alleged loss of the benefit
of a bargain with Widener. Thus, the gist of action and economic
loss doctrines squarely bar Plaintiff's claim for conversion. Judge
Younge, therefore, will grant the Defendant's Motion as to the
Plaintiff's conversion claim.
D. Money Had and Received
The Plaintiff's final common law claim is "for money had and
received." A cause of action for money had and received exists
where money is wrongfully diverted from its proper use and falls
into the hands of a third person who, in equity and good
conscience, has an inferior right to it, the law implies a promise
to pay over the funds to the person who has the greater right to
them. It requires that money be paid by mistake, under compulsion,
and where consideration is insufficient.
Judge Younge holds that none of these conditions exists in the
case. The Plaintiff's claim is not that her tuition was diverted to
a third person, or that she paid under compulsion or where there
was no consideration. Rather, she questions the manner in which
educational services were provided, not that they were never
provided. Thus, the Plaintiff has no cognizable claim for money had
and received and Judge Younge will grant the Defendant's Motion as
to this claim.
IV. Conclusion
For the reasons he discussed, Judge Younge granted the Defendant's
Motion to Dismiss. An appropriate Order will follow.
A full-text copy of the Court's Jan. 28, 2022 Memorandum is
available at https://tinyurl.com/2p8fc8zb from Leagle.com.
WILLIAMS-SONOMA INC: Coats Sues Over Unpaid Wages for Retail Staff
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ERENNE COATS and JUSTIN SMITH, individually and on behalf of all
others similarly situated, Plaintiffs v. WILLIAMS-SONOMA, INC. and
WILLIAMS-SONOMA DIRECT, INC., Defendants, Case No.
3:22-cv-00019-MPM-RP (N.D. Miss., January 31, 2022) is a class
action against the Defendants for their failure to compensate the
Plaintiffs and similarly situated workers at statutory minimum wage
rate in violation of the Fair Labor Standards Act and the common
law of contract.
Plaintiffs Coats and Smith worked for the Defendants as a selector
and as a seasonal merchandise processor in Williams-Sonoma's
distribution facility in Olive Branch, Mississippi from November
26, 2021 to December 15, 2021 and from November 19, 2021 to
December 15, 2021, respectively.
Williams-Sonoma, Inc. is a home retailer with its principal office
address located at 3250 Van Ness, San Francisco, California.
Williams-Sonoma Direct, Inc. is a warehousing and storage business
of Williams-Sonoma, Inc. [BN]
The Plaintiffs are represented by:
William B. Ryan, Esq.
DONATI LAW, PLLC
1545 Union Avenue
Memphis, TN 38104
Telephone: (901) 278-1004
Facsimile: (901) 278-3111
E-mail: Billy@donatilaw.com
- and –
Matt Dunn, Esq.
GETMAN, SWEENEY & DUNN, PLLC
260 Fair Street
Kingston, NY 12401
Telephone: (845) 255-9370
Facsimile: (845) 255-8649
E-mail: mdunn@getmansweeney.com
WISDOM NATURAL: Ortega Files ADA Suit in S.D. New York
------------------------------------------------------
A class action lawsuit has been filed against Wisdom Natural
Brands. The case is styled as Juan Ortega, on behalf of himself and
all others similarly situated v. Wisdom Natural Brands, Case No.
1:22-cv-00950 (S.D.N.Y., Feb. 2, 2022).
The lawsuit is brought over alleged violation of the Americans with
Disabilities Act.
Wisdom Natural Brands -- https://www.wisdomnaturalbrands.com/ -- is
an Arizona Corporation manufactures health care products.[BN]
The Plaintiff is represented by:
Joseph H. Mizrahi, Esq.
MIZRAHI & KROUB LLP
200 Vesey St, 24th Floor
New York, NY 11201
Phone: (212) 595-6200
Email: jmizrahi@mizrahikroub.com
[*] Ky. BIPA Copycat Bill May Bring Several Class Action Lawsuits
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Law360 reports that for three years now, Illinois' Biometric
Information Privacy Act has maintained its status as the hottest
new class action trend, spurring an onslaught of bet-the-company
litigation fueled by the law's minimal requirements for
establishing liability and high statutory damages awards.
Taking note of the increased commercial use of biometric
technologies today, lawmakers in Kentucky started out the 2022
legislative session with the introduction of H.B. 32 -- a carbon
copy of BIPA.
If enacted, Kentucky's BIPA copycat bill would bring with it an
avalanche of class actions similar to those companies have been
facing in connection with Illinois' biometric privacy statute.
And from a broader perspective, if successful, H.B. 32 would likely
generate further momentum for other states and cities to enact
similar biometrics laws of their own.
The Current Biometric Privacy Legal Landscape
While BIPA filings continued their torrid pace of years past, 2021
was also marked by the enactment of a number of new laws and
ordinances placing greater requirements and restrictions over the
commercial use of biometric data.
In particular, both Portland, Oregon, and Baltimore enacted
first-of-their-kind ordinances prohibiting the use of facial
recognition across the board by the private sector.
In addition -- for a second year in a row -- companies saw the
introduction of a new type of biometric privacy regulation not seen
in prior years, this time taking the form of regulation singling
out and targeting specific industries and sectors of the economy.
The first of these laws is New York City's biometrics-focused
ordinance regulating commercial establishments, which encompasses
all places of entertainment, retail stores, and food and drink
establishments.
Later in the year, the New York City Council enacted its Tenant
Data Privacy Act, which regulates owners and landlords of buildings
that utilize biometric data and other forms of advanced digital
technology as a method of access control.
Breakdown of Kentucky's BIPA Copycat Bill
The first state to propose new biometric privacy legislation in
2021 is Kentucky, with the introduction of its proposed H.B. 32.
The bill is a carbon copy of Illinois' BIPA and would require
companies to adhere to the following requirements:
-- Privacy policies and guidelines for retaining and destroying
of biometric data;
-- Notice;
-- Written consent;
-- A ban on selling or profiting from biometric data;
-- Limitations on the disclosure and dissemination of biometric
data; and
-- Data security requirements.
In addition, H.B. 32 would -- like BIPA -- provide a private right
of action for any individual aggrieved by a violation of the law to
recover $1,000 for each negligent violation and $5,000 for each
intentional or reckless violation, as well as attorney fees.
In January 2019, the Illinois Supreme Court issued its seminal
decision in Rosenbach v. Six Flags Entertainment Corp.,[1]
interpreting the term "aggrieved" to mean a mere violation of an
individual's privacy rights -- without more -- was sufficient to
pursue a class litigation. In doing so, Rosenbach eliminated the
essential requirement of having to demonstrate actual injury or
harm for alleged BIPA violations.
Not surprisingly, Rosenbach opened the floodgates to a tremendous
wave of bet-the-company litigation against Illinois companies, as
well as many located beyond the borders of the Prairie State, with
damages figures greatly exceeding the nature and extent of the
violations at issue.
As just one example, in 2020, tech giant Facebook Inc. agreed to
pay $650 million to settle a longstanding BIPA lawsuit, In re:
Facebook Biometric Information Privacy Litigation, involving its
allegedly improper use of facial recognition technology as part of
its photo-tagging feature.
What This Means for Companies That Use Biometric Data
Lawmakers' recent success in putting in place new biometrics
regulation has provided strong encouragement for other state and
municipal legislatures to push forward with their own strict
regulation covering the collection and use of biometric data --
just as Kentucky has done with its introduction of H.B. 32.
Moreover, the use of a private right of action as H.B. 32's sole
enforcement mechanism continues the significant trend that has
emerged in recent years with lawmakers clearly favoring the
inclusion of provisions that allow class actions to be pursued for
noncompliance as an integral component of this new wave of
biometric privacy proposals, many of which have successfully made
their way into law.
Consequently, a real possibility now exists that the same tsunami
of class actions that has been generated in connection with
Illinois' BIPA may soon make its way to other parts of the country
-- sooner than later.
At the same time, should Kentucky prevail in enacting its new
biometric privacy legislation, it may trigger a domino effect
whereby other states and cities quickly follow suit.
Practical Compliance Tips
While H.B. 32 represents the first BIPA copycat bill to be
introduced by state lawmakers in 2022, it will almost certainly not
be the last piece of biometric privacy legislation modeled after
Illinois' BIPA to be introduced this year.
As such, companies are well-advised to take proactive steps to
implement flexible, adaptable biometric privacy programs that will
enable them to adeptly respond to the ever-changing legal landscape
of biometric privacy.
Specifically, companies that use biometric data in their operations
-- even if they conduct business exclusively in parts of the
country that do not yet have any type of biometric privacy law on
the books -- should consider implementing the following compliance
practices:
Privacy Policy
Develop a publicly available, detailed, biometrics-specific privacy
policy providing clear notice that biometric data is being
collected, as well as information regarding the purposes for which
the data is used and the applicable schedule and guidelines for the
retention and permanent destruction of this data.
Written Notice
Provide written notice -- prior to the time during which any
biometric data is collected -- clearly informing individuals that
biometric data is being used; how that data will be used and/or
shared; and the length of time over which the data will be retained
until it is destroyed.
Written Release
Obtain a signed written release from all individuals prior to the
time any biometric data is collected permitting the collection and
use of the individual's biometric data, as well as the disclosure
of that data to third parties for business purposes.
Data Security
Maintain data security measures safeguarding biometric data that
satisfy the reasonable standard of care applicable to the company's
given industry. The measures should also protect biometric data in
a manner that is the same or more protective that in which other
forms of sensitive personal information are safeguarded against
improper disclosure or acquisition.
Explicit Prohibition on Selling or Otherwise Profiting From
Biometric Data
Enforce a strict ban that prohibits selling or any other form of
profiting from individuals' biometric data.
Conclusion
Kentucky's BIPA copycat bill is in the very early stages of the
legislative process; however, if enacted, the law will go into
effect July 14.
The trend toward favoring private right of action provisions over
administrative enforcement by both state and municipal legislatures
is gaining momentum and should be cause for concern for those
entities that use biometrics where no targeted biometric privacy
laws currently exist.
More than that, it is only a matter of time before biometric
privacy laws are the norm, and not the exception, across the
country.
Companies can get ahead of the compliance curve by taking proactive
measures to develop and implement biometric privacy compliance
programs that encompass the principles and practices described
above.
In doing so, businesses can ensure continued, ongoing compliance
not just with current biometrics regulation, but with future laws
as well -- allowing them to always stay a step ahead of today's
constantly evolving biometric privacy regulation. [GN]
[*] West Australian AG Raises Concerns Over Class Action Reforms
----------------------------------------------------------------
Ronald Mizen, writing for Australian Financial Review, reports that
the West Australian Attorney-General has raised a long list of
concerns with Treasurer Josh Frydenberg about the Commonwealth's
controversial class action reforms but has received silence from
Canberra.
WA's first law officer, John Quigley, told The Australian Financial
Review that despite writing to Mr Frydenberg in October and again
in December, he had not had a response, and called for "meaningful
consultation in good faith".
"We have our own bill before the Parliament at the moment to
institute class actions in Western Australia," Mr Quigley said.
"The WA government is concerned about the impact the Commonwealth
bill will have on legislated class action regimes in all states and
territories."
The issues raised include the imposition of nationalised funding
requirements and the introduction of a 30 per cent cap on the
amount of money litigation funders and lawyers can claim from class
action payouts.
"The issues I raised in that correspondence remain outstanding," Mr
Quigley said.
The government's reforms are stuck in the Senate and face
opposition from Labor and the Greens, as well as a handful of
crossbench senators.
Former Liberal party candidate Warren Mundine also lashed the
reforms, saying they would limit access to justice for Indigenous
and disadvantaged Australians.
Mr Mundine, who is a director of Litigation Lending, wrote to
federal Attorney-General Michaelia Cash in May warning of adverse
outcomes, documents released under freedom of information
revealed.
Mr Mundine said the payment cap would have serious "consequences of
access to justice for those that are disadvantaged, First Nation's
Peoples and other minority groups", with many class actions not
able to proceed.
Regional Australians worse off
When asked about the correspondence on Thursday, Mr Mundine said
there were many aspects of the government's reforms to class
actions that he supported, but the cap was a step too far.
"We do need reforms, especially these overseas companies that come
here, make a lot of money and then bugger off," he said. "We're an
Australian company, we pay our taxes and we're committed to social
justice."
Litigation Lending has backed multiple class actions against state
governments over stolen wages and is also backing a class action
launched on behalf of stolen generations people removed from their
families.
In a major win in 2019, the Queensland government settled a class
action over stolen wages between 1939 and 1972 for $190 million.
"We were able to get a really good outcome in that case," Mr
Mundine said, and while more than 70 per cent of the payout in that
case went to more than 10,000 indigenous people, that was not
always possible.
"This rule really gives more power to the defendant. And a lot of
those are government and large corporations, and all they've got to
do is keep holding out and holding out until you can't continue."
Ms Cash has also been warned by Bundaberg-based lawyer Tom Marland
the change would leave regional Australians worse off.
Marland Law is working on two major proposed class actions against
the Queensland government over its alleged mismanagement of
Paradise Dam and a Linc Energy gas plant.
Mr Marland said the bill risked the cases' viability, which would
leave "over 1000 landholders and farmers in Queensland without
recourse against the negligence of their own state government".
A parliamentary committee ordered the Attorney-General's Department
to produce evidence that the government has the constitutional
power to enact the changes, but in an extraordinary step, Ms Cash
claimed public interest immunity over the information. [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.
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