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C L A S S A C T I O N R E P O R T E R
Tuesday, February 15, 2022, Vol. 24, No. 27
Headlines
27 PIZZA: Violates Wage & Hour Laws, Santos Class Suit Alleges
3M COMPANY: AFFF Products Contain Toxic Chemicals, Willis Claims
3M COMPANY: Smith Suit Alleges Exposure to PFAS From AFFF Products
3M COMPANY: Whitwell Suit Claims Complications From AFFF Products
AERO SNOW: Gilmor Sues Over Unpaid OT for Non-Exempt Employees
AGWAY ENERGY: Court Certifies New York Sub-Class in Martinez Suit
AMERICAN TRAFFIC: Class Action Over Credit Card Fees Rejected
AMERIFACTORS FINANCIAL: Career Counseling Appeals TCPA Suit Ruling
APPLE INC: Bryan Sues Over iPad Mini 6 Tablet's LCD Defect
APPLE INC: Court Dismisses Smith Class Suit Without Leave to Amend
APPLE INC: Suit Over Misleading iPhone Water Resistance Dismissed
ARTECH INFORMATION: Settles Class Suit Over Alleged Data Breach
ASTRA SPACE: Faces Artery Suit Over 14% Decline of Stock Price
AYTU BIOPHARMA: Aponowicz Sues Over Breach of Fiduciary Duties
BAPTIST HEALTH: Proskauer Rose Attorneys Discuss Court Ruling
CAPITAL ONE: To Settle MDL Data Breach Lawuit for $190-Mil.
CHEESECAKE FACTORY: To Pay $4.75M Settlement in Privacy Class Suit
CHRIS BARBER: Class Action Lawsuit Over Air Horns Adjourned
CLARIVATE PLC: Faruqi & Faruqi Investigates Securities Claims
CONNECTICUT: Milchin Appeals Habeas Corpus Suit Dismissal
COX COMMUNICATIONS: Appeals Denial of Bid to Intervene in Feltz
DENKA PERFORMANCE: Butler Appeals PI Suit Dismissal to 5th Cir.
ELECTRIC LAST: Bragar Eagel Reminds Investors of April 4 Deadline
ELECTRIC LAST: Kessler Topaz Reminds of April 4 Deadline
ELECTRIC LAST: Robbins Geller Reminds of April 4 Deadline
ELECTRIC LAST: Rosen Law Reminds Investors of April 4 Deadline
ELITE STAFFING: Martinez Appeals RICO Class Action Dismissal
FENNEC PHARMACEUTICALS: Fisher Sues Over 50.41% Drop of Stock Price
FOREST LABS: DPPs, Retailers & End-Payors' Antitrust Suits Tossed
GOAUTO INSURANCE: Appeals Remand Order in Turner Suit
GRAND ISLE: Underpays B-1 Workers, Ortiguerra Class Suit Alleges
GRAPHIC PACKAGING: Emissions Class Action Set to Move Forward
HAWAIIAN AIRLINES: District Court Denies O'Hailpin's Bid for TRO
HYPERSPORT INDUSTRIES: Fails to Pay Proper OT Wages to Repairmen
ILLINOIS: School Districts Scramble After Ruling Over Mask Mandates
ILLINOIS: Won't Enforce Masking Requirements After TRO Ruling
ILUKA RESOURCES: Averts Class Suit Over Corporations Act Violations
INSIGHT PRODUCTIONS: Suit Dismissal Deadline May Delay Due to COVID
JUUL LABS: Indian River Sues Over Deceptive E-Cigarette Youth Ads
LIVE NATION: Hundreds of Cases Over Music Festival Consolidated
MDL 2445: Indivior's Bid to Disqualify Class Rep. Rochester Denied
MDL 3022: Panel Denies Centralization of Four Cases in Maryland
MDL 3023: Six Cases Consolidated in Eye Injury Products Litigation
MIDLAND FUNDING: Denial of Arbitration in Briesmeister Suit Flipped
MITSUBISHI MOTORS: Vehicles Contain Defective Hoods, Rezendes Says
MONDELEZ INTERNATIONAL: Lee Sues Over Mislabeled Dark Chocolate
NATIONAL FOOTBALL: Broncos Named Defendant in Discrimination Suit
NATIONAL FOOTBALL: Commissioner Issues Memo Following Class Action
NATIONAL FOOTBALL: Congressman Calls for Hearing Following Suit
NATIONAL FOOTBALL: Faces Suit Over Alleged Online Sales Conspiracy
NATIONAL FOOTBALL: Flores' Legal Team Responds to Diversity Memo
NATIONAL FOOTBALL: Former Coach's Claims "False," Class Suit Says
OPTIO SOLUTIONS: Nabozny Appeals FDCPA Suit Dismissal
ORACLE CORP: Privacy Class Suit in the Netherlands Dismissed
OVH GROUPE: Faces Class Suit Over Alleged Fire Losses, Damages
PACIFICA SENIOR: Dismissal of Whitehead's Claims Partly Affirmed
PRECIOUS METALS: Lowey Dannenberg Reminds of May 23 Deadline
R.J. REYNOLDS: Fla. Dist. App. Remands Gloger Suit for New Trial
ROBLOX CORP: May Face Class Suit Over Alleged Illegal Gambling
RUTGERS UNIVERSITY: Settles Pandemic-Related Class Suit for $5-Mil.
S&P GLOBAL: Court Partly Compels Discovery in Aviles Class Suit
SAINT-GOBAIN PERFORMANCE: Judge Okays $65MM Hoosick Settlement
SAN JOSE, CA: Class Decertification Order in Plata Suit Affirmed
SANTANDER BANK: Reaches $4.25M Settlement in Labor Class Action
SHATTUCK LABS: Bronstein Gewirtz Reminds of April 1 Deadline
SLIDERS INC: Puzone Sues Over Unpaid Wages for Restaurant Servers
SOCLEAN INC: Jenkins Moved From W.D. Missouri to W.D. Pennsylvania
SOCLEAN INC: Turner Moved From W.D. Missouri to W.D. Pennsylvania
SPIRIT AEROSYSTEMS: Meitav Dash Appeals Securities Suit Dismissal
STYLE MANAGEMENT: Faces Cerrato Wage-and-Hour Suit in S.D.N.Y.
SURFSIDE COFFEE: Campbell Suit Alleges Unpaid OT for Store Managers
T-MAC PIZZA: Jimenez Seeks Minimum Wages for Delivery Drivers
TALKSPACE INC: Pomerantz Law Firm Reminds of June 17 Deadline
TILRAY INC: Moves to Dismiss Cannabis Securities Class Action
TOFTE WASTEWATER: Faces Suit Over Unlawful Wastewater Discharges
TOYOTA MOTOR: Davis Sues Over Venza Vehicle's Windshield Defect
UNITED BEHAVIORAL: Appeals Atty.'s Fees & Costs Awarded in Wit Suit
UNITED BEHAVIORAL: Appeals Atty.'s Fees, Costs Awarded in Alexander
WELLS FARGO: To Pay $40.3MM to Settle Mortgage Class Action Suit
WILLINGBORO, NJ: Faces Suit Over Cancer-Causing Chemicals in Water
ZURICH AMERICAN: Big Red Appeals Insurance Suit Dismissal
[*] Class Action Over Alleged Illegal Background Check Can Proceed
*********
27 PIZZA: Violates Wage & Hour Laws, Santos Class Suit Alleges
--------------------------------------------------------------
DAVID GUEVARA SANTOS, individually and on behalf of all others
similarly situated v. 27 PIZZA CAFE CORP. d/b/a PASTAFINA PIZZA and
HASSAN EBRAHEIM, as an individual, Case No. 1:22-cv-01114-JPC
(S.D.N.Y., Feb. 9, 2022) seeks to recover damages for the
Defendants' egregious violations of state and federal wage and hour
laws arising out of the Plaintiff's employment with the
Defendants.
According to the complaint, although the Plaintiff regularly worked
approximately 90 hours or more per week, the Defendants did not pay
Plaintiff at a wage rate of time and a half (1.5) for his hours
regularly worked over forty (40) in a work week, a blatant
violation of the overtime provisions contained in the Fair Labor
Standards Act and the New York Labor Law.
As a result of the alleged violations, the Plaintiff seeks
compensatory damages and liquidated damages in an amount exceeding
$100,000.00. The Plaintiff also seeks interest, attorneys' fees,
costs, and all other legal and equitable remedies this Court deems
appropriate.
Plaintiff Santos employed by the Defendants from August 2009 until
December 2021.
27 PIZZA CAFE CORP., d/b/a PASTAFINA PIZZA, is a pizza restaurant
in 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
Facsimile: (718) 263-9598
3M COMPANY: AFFF Products Contain Toxic Chemicals, Willis Claims
----------------------------------------------------------------
HUBERT WILLIS, individually and on behalf of all others similarly
situated, Plaintiff v. 3M COMPANY fka MINNESOTA MINING &
MANUFACTURING CO.; BUCKEYE FIRE EQUIPMENT CO.; CHEMGUARD, INC.;
CORTEVA, INC.; DUPONT DE NEMOURS, INC.; DYNAX CORPORATION; E.I.
DUPONT DE NEMOURS & CO.; KIDDE-FENWALL, INC; KIDDE FIRE FIGHTING,
INC; KIDDE PLC INC.; NATIONAL FOAM, INC.; THE CHEMOURS CO.; THE
CHEMOURS COMPANY FC, LLC; TYCO FIRE PRODUCTS, LP; UTC FIRE &
SECURITYAMERICA'S, INC; and DOES 1 to 100, inclusive, Defendants,
Case No. 2:22-cv-00401-RMG (D.S.C., February 9, 2022) is a class
action against the Defendants for negligence, strict liability,
defective design, failure to warn, fraudulent concealment, medical
monitoring trust, and violation of the Uniform Voidable
Transactions Act.
According to the complaint, the Defendants have failed to use
reasonable and appropriate care in the design, manufacture,
labeling, warning, instruction, training, selling, marketing, and
distribution of aqueous film forming foam (AFFF) products
containing synthetic, toxic per- and polyfluoroalkyl substances
collectively known as PFAS. The Defendants' AFFF products are
dangerous to human health because PFAS are highly toxic and
carcinogenic chemicals and can accumulate in the blood and body of
exposed individuals. The Defendants have also failed to warn public
entities and military members, including the Plaintiff, who they
knew would foreseeably come into contact with their AFFF products.
The Plaintiff used the Defendants' PFAS-containing AFFF products in
their intended manner, without significant change in the products'
condition due to inadequate warning about the products' danger. The
Plaintiff relied on the Defendants' instructions as to the proper
handling of the products, the suit says.
As a result of the Defendants' alleged omissions and misconduct,
the Plaintiff was diagnosed with thyroid cancer.
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.
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.
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.
Corteva, Inc. is an American agricultural chemical and seed company
based in Wilmington, Delaware.
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-Fenwall, Inc. is a manufacturer of fire protection systems
based in Ashland, Massachusetts.
Kidde Fire Fighting, Inc. is a manufacturer of fire safety products
based in Mebane, North Carolina.
Kidde PLC is a manufacturer of fire safety products based in
Mebane, North 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.
The Chemours Company FC, LLC is a manufacturer of titanium
technologies, fluoroproducts and chemical solutions based in
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.
UTC Fire & Security America's Inc. is a manufacturer of security
and fire control systems based in Bradenton, Florida. [BN]
The Plaintiff is represented by:
Jeremy C. Shafer, Esq.
BANNER LEGAL
445 Marine View Avenue, Suite 100
Del Mar, CA 92014
Telephone: (760) 479-5404
E-mail: jshafer@bannerlegal.com
- and –
S. James Boumil, Esq.
BOUMIL LAW OFFICES
120 Fairmount Street
Lowell, MA, 01852
Telephone: (978) 458-0507
E-mail: sjboumil@boumil-law.com
- and –
Konstantine Kyros, Esq.
KYROS LAW
17 Miles Rd.
Hingham, MA 02043
Telephone: (800) 934-2921
E-mail: kon@kyroslaw.com
3M COMPANY: Smith Suit Alleges Exposure to PFAS From AFFF Products
------------------------------------------------------------------
SHARON SMITH, individually and as personal
representative/administrator/executor of the estate of HAROLD
SMITH, deceased, 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-00398-RMG
(D.S.C., February 9, 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, wantonness, per quod claim, and survival and wrongful
death claims.
The case arises from severe personal injuries sustained by the
Decedent 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 Decedent, 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 Decedent was exposed to toxic chemicals
and was diagnosed with leukemia. The Decedent's diagnosis caused
and/or contributed to his death and/or injuries, trauma and pain
and suffering while alive, 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 Plaintiffs are represented by:
Stephen T. Sullivan, Jr., Esq.
John E. Keefe, Jr., Esq.
WILENTZ, GOLDMAN & SPITZER P.A.
125 Half Mile Road, Suite 100
Red Bank, NJ 07701
Telephone: (732) 855-6060
Facsimile: (732) 726-4860
3M COMPANY: Whitwell Suit Claims Complications From AFFF Products
-----------------------------------------------------------------
LISA WHITWELL, individually and as personal
representative/administrator/executor of the estate of GEORGE
WHITWELL, deceased, 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-00400-RMG
(D.S.C., February 9, 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, wantonness, per quod claim, and survival and wrongful
death claims.
The case arises from severe personal injuries allegedly sustained
by the Decedent 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 Decedent, 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 Decedent was exposed
to toxic chemicals and was diagnosed with skin cancer and chronic
kidney disease. The Decedent's diagnosis caused and/or contributed
to his death and/or injuries, trauma and pain and suffering while
alive, 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 Plaintiffs are represented by:
Stephen T. Sullivan, Jr., Esq.
John E. Keefe, Jr., Esq.
WILENTZ, GOLDMAN & SPITZER P.A.
125 Half Mile Road, Suite 100
Red Bank, NJ 07701
Telephone: (732) 855-6060
Facsimile: (732) 726-4860
AERO SNOW: Gilmor Sues Over Unpaid OT for Non-Exempt Employees
--------------------------------------------------------------
SCOTT GILMOR, individually and on behalf of all others similarly
situated, Plaintiff v. AERO SNOW REMOVAL LLC d/b/a AERO SNOW
REMOVAL TEMP PERSONNEL, LLC, Defendant, Case No. 2:22-cv-00727
(E.D.N.Y., February 9, 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 overtime wages, failure
to furnish accurate wage notice, and failure to furnish accurate
wage statements.
The Plaintiff worked for the Defendant as a non-exempt employee
from December 12, 2020, through November 13, 2021.
Aero Snow Removal LLC, doing business as Aero Snow Removal Temp
Personnel, LLC, is a snow removal company, with its principal place
of business at 165 Cantiague Rock Road, Westbury, New York. [BN]
The Plaintiff is represented by:
Frank J. Tantone, Esq.
Laura R. Reznick, Esq.
BELL LAW GROUP, PLLC
100 Quentin Roosevelt Boulevard, Suite 208
Garden City, NY 11530
Telephone: (516) 280-3008
E-mail: ft@Belllg.com
AGWAY ENERGY: Court Certifies New York Sub-Class in Martinez Suit
-----------------------------------------------------------------
In the case, ANTONIO MARTINEZ, in his capacity as executor of Naomi
Gonzales' estate, Plaintiff v. AGWAY ENERGY SERVICES, LLC,
Defendant, Case No. 5:18-CV-00235 (MAD/ATB) (N.D.N.Y.), Judge Mae
A. D'Agostino of the U.S. District Court for the Northern District
of New York entered her Memorandum-Decision and Order:
1. granting in part and denying in part the Plaintiff's motion
for class certification;
2. granting in part and denying in part the Defendant's motion
for summary judgment or, in the alternative, to strike the
Plaintiff's proposed expert;
3. granting in part and denying in part the Defendant's motion
to deny class certification;
4. denying the Plaintiff's motion to strike the Defendant's
motion to deny class certification; and
5. denying the Defendant's motion to strike the Plaintiff's
statement of additional material facts.
I. Background
Naomi Gonzales ("Decedent") commenced the putative class action
against the Defendant on Dec. 6, 2017, in the U.S. District Court
for the District of Delaware. The Decedent purported to bring the
action on her own behalf and on behalf of (1) a class consisting of
the Defendant's New York and Pennsylvania customers charged a
variable rate for residential electricity services from November
2011 to the present (the "New York/Pennsylvania Class"); and (2) a
sub-class of the Defendant's New York customers charged a variable
rate for residential electricity services from November 2011 to the
present (the "New York Sub-Class").
The Plaintiff asserted five claims against the Defendant: (1)
violations of New York General Business Law ("GBL") Section 349 on
behalf of the New York Sub-Class; (2) violations GBL Section 349-d
on behalf of the New York Sub-Class; (3) breach of contract on
behalf of the New York/Pennsylvania Class; (4) breach of implied
covenant of good faith and fair dealing on behalf of the New
York/Pennsylvania Class; and (5) unjust enrichment on behalf of the
New York/Pennsylvania Class.
On Jan. 29, 2018, the Defendant filed a motion to dismiss and the
case was transferred to the U.S. District Court for the Northern
District of New York by stipulation of the parties. On Oct. 22,
2018, the Court granted the Defendant's motion to dismiss in part
and denied it in part, dismissing the Plaintiff's breach of implied
covenant of good faith and fair dealing and unjust enrichment
claims. The Decedent subsequently passed away and, on April 1,
2021, U.S. Magistrate Judge Andrew T. Baxter granted a motion to
substitute Antonio Martinez, in his capacity as the executor of the
Decedent's estate, as the Plaintiff.
Currently before the Court is (1) the Plaintiff's motion for class
certification; (2) the Defendant's motion for summary judgment or,
in the alternative, to strike the Plaintiff's proposed expert; (3)
the Defendant's motion to deny class certification; (4) the
Plaintiff's motion to strike the Defendant's motion to deny class
certification; and (5) the Defendant's motion to strike the
Plaintiff's statement of additional material facts.
II. Discussion
A. Class Certification
Rule 23(a) sets forth four threshold requirements for class
certification: (1) the class is so numerous that joinder of all
members is impracticable, (2) questions of law and fact are common
to the class, (3) the claims or defenses of the representative
parties are typical of the claims of defenses of the class, and (4)
the representative parties will fairly and adequately protect the
interests of the class.
After the threshold requirements in Fed. R. Civ. P. 23(a), "the
district court must also determine whether the action can be
maintained under Rule 23(b)(1), (2), or (3)." Additionally, "courts
have written a third, 'implied requirement' into the Rule: a party
seeking certification must demonstrate that the proposed class is
'ascertainable.'
In sum, class certification is appropriate where the proposed class
meets, by a preponderance of the evidence following a court's
"rigorous analysis," the requirements of Rule 23(a) and the
proposed class constitutes one of the types of classes enumerated
in Rule 23(b).
Judge D'Agostino finds that (i) the Defendant "had many thousands
of residential electricity customers on a variable rate during the
relevant class period"; (ii) the entire New York Sub-Class shares
the claim that Defendant made deceptive representations,
statements, and omissions about its variable rate in violation of
GBL Sections 349 and 349-d; (iii) the Plaintiff's GBL claims are
typical of the claims of the New York Sub-Class; and (iv) the
Plaintiff will fairly and adequately protect the interests of the
New York Sub-Class.
Judge D'Agostino also finds that Rule 23(b)(2) applies only when a
single injunction or declaratory judgment would provide relief to
each member of the class. She holds that the certification of a New
York Sub-Class for injunctive relief is appropriate. The injunctive
relief sought by the Plaintiff -- an order enjoining the Defendant
from undertaking any further unlawful conduct under GBL Sections
349 and 349-d with respect to its variable rate -- would apply to
all or none of the New York Sub-Class. Accordingly, she certifies a
New York Sub-Class solely for injunctive relief under Rule
23(b)(2).
Addressing the New York Sub-Class for damages under Rule 23(b)(3),
Judge D'Agostino finds that common questions of law and fact
predominate in the New York Sub-Class for Damages. As she
discussed, the GBL claims depend on generalized, objective evidence
(e.g., the standardized customer agreements and representations
made to the Defendant's customers), and depend on common questions
of law (e.g., whether the Defendant's representations were likely
to mislead a reasonable consumer acting reasonably under the
circumstances). Although some individualized issues may arise with
respect to calculating damages, they do not predominate over the
issues of law and fact that are common across the class.
Judge D'Agostino also finds that a class action is a superior means
of adjudication for these claims. Due to the predominating common
questions of law and fact, she will foster economies of time,
effort, and expense by prosecuting the action as a class, and avoid
the risk of inconsistent or varying adjudications.
Finally, Judge D'Agostino holds that the Plaintiff has satisfied
the ascertainability requirement. She finds that the members of the
class are readily identifiable pursuant to objective criteria,
including, but not limited to, the records maintained by the
Defendants.
Accordingly, the Plaintiff's motion for class certification is
granted to the extent it sought class certification for a New York
Sub-Class, and the New York Sub-Class is divided into the New York
Sub-Class for Damages and a New York Sub-Class for Injunctive
Relief. The Plaintiff's motion for class certification is otherwise
denied. The Defendant's motion to deny class certification is
accordingly granted in part and denied in part.
B. Defendant's Motion to Strike Plaintiff's Statement of Additional
Material Facts
In its reply brief, the Defendant asks the Court to strike portions
of the Plaintiff's Statement of Additional Material Facts because
those portions "completely disregard Local Rule 56.1 to the point
that they cannot remotely be considered good faith compliance."
Local Rule 56.1 states that the "Statement of Material Facts will
set forth, in numbered paragraphs, a short and concise statement of
each material fact about which the moving party contends there
exists no genuine issue."
Although the Plaintiff's lengthy Statement of Additional Material
Facts does contain some disputed opinions and legal arguments,
Judge D'Agostino does not believe that the drastic measure sought
by the Defendant is warranted in the case. Instead, she will
disregard any improper assertions and consider the statements in
the Plaintiff's Statement of Additional Material Facts only to the
extent they are supported by the record. Accordingly, the
Defendant's motion to strike the Plaintiff's Statement of
Additional Material Facts is denied.
C. Defendant's Motion for Summary Judgment
1. Plaintiff's Breach of Contract Claim
The Defendant argues that it is entitled to summary judgment on the
Plaintiff's breach of contract claim because he cannot, as a matter
of law, show that there is a triable issue of fact. In opposition,
the Plaintiff argues that there are questions of fact concerning
whether the Defendant (1) breached the contract's promise to
"charge 'competitive' rates that reflect market costs" when it set
the variable rates "substantially higher than the utilities, who
are the primary competitors in the electricity market"; and (2)
violated "the terms of the contract" by charging "additional
amounts to customers for the EnergyGuard service" when "nothing in
the contract permits the Defendant to charge extra for the
EnergyGuard service."
"To prevail on a breach-of-contract claim in New York, a plaintiff
must prove: '(1) the existence of a contract, (2) performance by
the party seeking recovery, (3) nonperformance by the other party,
and (4) damages attributable to the breach.'" The initial
interpretation of a contract "is a matter of law for the court to
decide."
After drawing all reasonable inferences in the Plaintiff's favor as
the nonmoving party, Judge D'Agostino concludes that there is no
genuine issue of material fact as to whether the Defendant breached
the contract when setting the variable rate. Initially, nothing in
the contract precludes the Defendant from including the cost of the
EnergyGuard Program in the variable rate. Furthermore, the
Plaintiff cannot create a triable issue of fact by showing that the
Defendant's rates are not "competitive" compared solely against
those of the incumbent utilities. Dr. Felder also has not
demonstrated that there is a genuine issue of material fact
concerning the competitiveness of the Defendant's variable rates.
Accordingly, the Defendant's motion for summary judgment on the
Plaintiff's breach of contract claim is granted.
2. Plaintiff's N.Y. General Business Law Sections 349 and 349-d
Claims
First, Judge D'Agostino finds that not only does the Defendant fail
to identify an ambiguity in the meaning of a statute, the NYSPC
orders themselves are not relevant to the Plaintiff's GBL Sections
349 and 349-d claims. Indeed, those orders -- to the extent they
were provided by the parties -- did not "unequivocally endorse" the
Defendant's "business model"; nor did they determine the Defendant
could never engage in deceptive acts or practices in the marketing
of its EnergyGuard service. Rather, the NYSPC orders merely held
out Defendant's EnergyGuard service as an example of an
energy-related value-added product or service that an ESCO could
permissibly offer at a price above the utility default supply rate,
"without the requirement of being paired with a compliant
guaranteed savings, fixed-rate, or renewably sourced product."
Second, Judge D'Agostino finds that the Plaintiff's allegation of
injury in the "form of an overpayment or 'price premium,' whereby
he pays more than she would have but for the deceptive practice,"
is sufficient to establish he suffered injury under the GBL. It is
not a requirement under New York law that "any monetary GBL injury
must be independent of alleged breach of contract damages."
Accordingly, the Defendant's motion for summary judgment on the
Plaintiff's GBL Sections 349 and 349-d claims is denied.
D. Defendant's Motion to Strike Plaintiff's Proposed Expert
The Defendant argues that the opinion of the Plaintiff's expert,
Dr. Felder, should be deemed inadmissible under Rule 702 of the
Federal Rules of Evidence. Broadly stated, it asserts that Dr.
Felder's report "presents numerous opinions that are completely
unsupported" and, therefore, his methodology lacks a reliable
foundation. In opposition, the Plaintiff argues that Dr. Felder's
opinions are reliable and, "even if there were merit to any of
Defendant's contentions, they would constitute 'disputes regarding
an expert's use or application of his methodology and would
accordingly 'go to the weight, not the admissibility of Dr.
Felder's testimony.'"
Judge D'Agostino holds that Dr. Felder's opinion is inadmissible
under Rule 702 because its conclusions are not the product of
reliable principles or grounded in sufficient data. Dr. Felder's
report primarily consists of a calculation of the amount of money
Defendant is alleged to have overcharged its customers, based on a
comparison between Defendant's revenues and the cost to Defendant
from purchasing electricity from the relevant public utilities. The
soundness of this calculation rests on the Plaintiff's and Dr.
Felder's argument that the proper comparison for the Defendant's
variable rate is solely the rates of the incumbent utilities.
However, as addressed in the breach of contract section, allowing
the Plaintiff to make this comparison would be in direct conflict
with "the entire point of electricity deregulation." Dr. Felder's
report does not attempt to make any comparison against the rates
charged by Defendant's ESCO competitors. Thus, Dr. Felder's opinion
and report is "simply inadequate to support the conclusions
reached."
Accordingly, the Defendant's motion to strike Plaintiff's proposed
expert, Dr. Felder, is granted.
III. Conclusion
After carefully reviewing the entire record in the matter, the
parties' submissions and the applicable law, and for the stated
reasons, Judge D'Agostino granted in part and denied in part the
Plaintiff's motion for class certification. The New York Sub-Class
is divided into a New York Sub-Class for Damages and a New York
Sub-Class for Injunctive Relief.
Judge D'Agostino denied the Plaintiff's motion to strike
Defendant's motion to deny class certification. She granted in part
and denied in part the (i) the Defendant's motion to deny class
certification and (ii) its motion for summary judgment.
Judge D'Agostino granted the Defendant's motion to strike
Plaintiff's proposed expert. She denied the Defendant's motion to
strike the Plaintiff's Statement of Additional Material Facts.
The Clerk of the Court will serve a copy of the Memorandum-Decision
and Order on the parties in accordance with the Local Rules.
A full-text copy of the Court's Feb. 2, 2022 Memorandum-Decision &
Order is available at https://tinyurl.com/2p8t7smh from
Leagle.com.
TODD S. GARBER, ESQ. -- tgarber@fbfglaw.com -- CHANTAL KHALIL, ESQ.
-- ckhalil@fbfglaw.com -- DOUGLAS G. BLANKINSHIP, ESQ. --
gblankinship@fbfglaw.com -- FINKELSTEIN, BLANKINSHIP, FREI-PEARSON
& GARBER, LLP, in White Plains, New York, Attorneys for the
Plaintiff.
BRENDAN M. SHEEHAN, ESQ. -- bsheehan@bsk.com -- SHARON M.
PORCELLIO, ESQ. -- sporcellio@bsk.com -- BOND SCHOENECK & KING,
PLLC, in Syracuse, New York, Attorneys for the Defendant.
JOHN D. COYLE, ESQ. -- info@coylelawgroup.com -- COYLE LAW GROUP
LLP, in Morristown, New Jersey, Attorney for the Defendant.
AMERICAN TRAFFIC: Class Action Over Credit Card Fees Rejected
-------------------------------------------------------------
Jim Saunders at cbs12.com reports that in a potential class-action
lawsuit, the Florida Supreme Court on rejected a motorist's
challenge to a credit-card fee that he was charged after getting
caught on camera running a red light.
Justices unanimously ruled against Steven Pincus, who filed the
lawsuit in 2018 after he got hit with a $158 fine for a red-light
violation in North Miami Beach. Pincus contended that American
Traffic Solutions, Inc., which had a contract to run the city's
red-light camera program, improperly tacked on a $7.90 fee when he
paid by credit card.
A federal district judge in South Florida ruled against Pincus, who
then took the case to the 11th U.S. Circuit Court of Appeals. The
Atlanta-based appellate court last year asked the Florida Supreme
Court to determine whether American Traffic Solutions violated
state law in charging the fee -- a move known as certifying a
question to the state court.
SEE ALSO: Man charged with stealing $16k in COVID unemployment
benefits
The Supreme Court rejected Pincus' argument that the company had
been "unjustly enriched" with the fee.
In an eight-page opinion, Justice Jorge Labarga wrote that American
Traffic Solutions gave "value" in exchange for the fee. As
examples, he wrote that Pincus did not have to buy postage and use
a check or money order to pay the traffic fine; could pay the
balance over time; and avoided the risk of the payment being
delayed, stolen or lost.
"Accordingly, Pincus's unjust enrichment claim fails because he has
not alleged a benefit conferred and accepted which would be unjust
for ATS (American Traffic Solutions) to retain," the opinion said.
The Supreme Court decision sends the case back to the federal
appeals court.
Red-light cameras in Florida have long been controversial and have
spurred a variety of legal challenges.
During arguments in October at the Supreme Court, Bret Lusskin, an
attorney for Pincus, contended that the additional fee was not
allowed by state laws aimed at having uniform traffic rules. Also,
he said American Traffic Solutions, a major player in the red-light
camera industry, can't require motorists to pay additional fees and
that it is an "illusion that this is voluntary."
"There is $7.90 that is in ATS' hands that should be in Mr. Pincus'
hands," Lusskin said. "It was unlawful for them to impose any
additional fee, fine, surcharge or costs, and it's illegal to
collect a commission."
But Joseph Lang, an attorney for American Traffic Solutions,
pointed to Pincus' decision to pay by credit card instead of using
another method.
"While he was compelled to pay the violation, he was certainly not
compelled in any way to choose to pay with a credit card," Lang
said during the October arguments. "He could have paid with a money
order or a check and not incurred the fee." [GN]
AMERIFACTORS FINANCIAL: Career Counseling Appeals TCPA Suit Ruling
------------------------------------------------------------------
Plaintiff Career Counseling, Inc. filed an appeal from a court
ruling entered in the lawsuit entitled Career Counseling, Inc.,
d/b/a Snelling Staffing Services, a South Carolina corporation,
individually and as the representative of a class of similarly
situated persons, Plaintiff v. Amerifactors Financial Group, LLC,
and John Does 1-5, Defendants, Civil Action No. 3:16-cv-03013-JMC,
in the United States District Court for the District of South
Carolina at Columbia.
As reported in the Class Action Reporter, Plaintiff Career
Counseling, on behalf of itself and all others similarly situated,
filed the instant putative class action seeking damages and
injunctive relief from Defendants Amerifactors Financial Group, LLC
("AFGL") and John Does 1-5 for alleged violations of the Telephone
Consumer Protection Act ("TCPA") of 1991, as amended by the Junk
Fax Prevention Act of 2005 ("JFPA"), 47 U.S.C. Section 227, and the
regulations promulgated under the TCPA by the United States Federal
Communications Commission ("FCC").
Career Counseling is an employment staffing agency, which acts as a
middleman between employers and prospective workers. AFGL is an
accounts receivable financing firm that engages in factoring.
Factoring is a process in which AFGL purchases a business's
accounts receivable of unpaid invoices for a discounted price with
the intention of collecting the full value of the unpaid invoices
at a later date. In June of 2016, AFGL became interested in
marketing by fax and, as a result, contracted with AdMax, a fax
marketer.
Career Counseling asserts that unsolicited faxes were sent by or on
behalf of AFGL to 58,945 other recipients.
On Sept. 2, 2016, Career Counseling filed a putative Class Action
Complaint in this court alleging violation of the TCPA. On Oct. 28,
2016, AFGL filed a Motion to Dismiss. After the parties responded
and replied to the Motion to Dismiss, the Court entered an Order
that granted AFGL's Motion to Dismiss pursuant to Rule 12(b)(1) and
dismissed the Class Action Complaint without prejudice.
On July 15, 2020, AFGL filed a Motion to Dismiss Plaintiff's First
Amended Complaint pursuant to Rules 12(b)(1) and 12(b)(6). After
considering the parties extensive briefing, the Court denied AFGL's
Motion to Dismiss on Dec. 22, 2020. Thereafter, AFGL answered the
Amended Complaint and the parties engaged in extensive discovery
regarding the extent to which the facsimile at issue was sent to
the putative class.
On March 16, 2021, Career Counseling filed Rule 23 Motions. On
April 15, 2021, AFGL filed a Memorandum of Law in Opposition to
Motion for Class Certification, to which Career Counseling filed a
Reply in Support of Its Motion for Class Certification on April 30,
2021. The Court heard argument from the parties as to their
respective positions at a hearing on May 19, 2021.
On July 16, 2021, the Court entered an order denying Plaintiff's
Motion to Certify Class, and denying as moot Plaintiff's Motion to
Appoint Class Counsel and Motion to Appoint Class Representative.
Consequently, Career Counseling filed a motion for summary judgment
on October 28, 2021, asserting that "there is no genuine issue of
material fact that (i) the Fax [at issue] is an 'advertisement'
under 47 U.S.C. Section 227(a)(5); (2) Defendant is the 'sender' of
the Fax; and (3) the Fax was sent to a 'telephone facsimile
machine' using a 'telephone facsimile machine, computer, or other
device." AmeriFactors opposed the Motion saying it should be denied
because the record demonstrates that factual issues remain with
respect to Plaintiff's TCPA claim.
On January 31, 2022, the Honorable J. Michelle Childs entered an
Order and Opinion granting Plaintiff's Motion for Summary Judgment
and awarded its statutory damages for $500 for violation of the
Telephone Consumer Protection Act of 1991, as amended by the Junk
Fax Prevention Act of 2005.
The appellate case is captioned as Career Counseling, Inc. v.
Amerifactors Financial Group, LLC, Case No. 22-1119, in the United
States Court of Appeals for the Fourth Circuit, filed on Feb. 7,
2022.[BN]
Plaintiff-Appellant CAREER COUNSELING, INC., d/b/a Snelling
Staffing Services, a South Carolina corporation, individually and
as the representative of a class of similarly-situated persons, is
represented by:
John Gressette Felder, Jr., Esq.
MCGOWAN, HOOD & FELDER, LLC
1517 Hampton Street
Columbia, SC 29201
Telephone: (803) 779-0100
E-mail: jfelder@mcgowanhood.com
- and -
Glenn Lorne Hara, Esq.
Ryan Michael Kelly, Esq.
ANDERSON & WANCA
3701 Algonquin Road
Rolling Meadows, IL 60008
Telephone: (847) 368-1500
E-mail: rkelly@andersonwanca.com
Defendant-Appellee AMERIFACTORS FINANCIAL GROUP, LLC is represented
by:
Jonathan M. Knicely, Esq.
William Harding Latham, Esq.
NELSON MULLINS RILEY & SCARBOROUGH, LLP
P. O. Box 11070
Columbia, SC 29211
Telephone: (803) 255-9593
E-mail: bill.latham@nelsonmullins.com
- and -
Lauri Anne Mazzuchetti, Esq.
Whitney M. Smith, Esq.
KELLEY DRYE & WARREN, LLP
1 Jefferson Road
Parsippany, NJ 07054
Telephone: (973) 503-5910
APPLE INC: Bryan Sues Over iPad Mini 6 Tablet's LCD Defect
----------------------------------------------------------
CHRISTOPHER BRYAN, individually and on behalf of all others
similarly situated, Plaintiff v. APPLE INC., Defendant, Case No.
5:22-cv-00845-NC (N.D. Cal., February 9, 2022) is a class action
against the Defendant for fraud, fraudulent omission/concealment,
fraudulent misrepresentation, negligent misrepresentation,
quasi-contract/unjust enrichment, and violations of the
California's Unfair Competition Law, the California's Consumers
Legal Remedies Act, the California's False Advertising Law, and the
Colorado's Consumer Protection Act.
The case arises from the Defendant's alleged marketing and sale of
its iPad Mini 6 tablet with defective liquid crystal display (LCD).
The tablet's LCD is prone to screen tearing which can make images
or text on one side of the screen appear to be tilted at a downward
angle because of incongruity in refresh rates, causing one side of
the screen to look as if it's responding faster than the other
side, which creates a visual disturbance called jelly scrolling.
Although Apple itself publicly acknowledged the problem to niche
tech publications just four days after the iPad Mini's release,
Apple has continued to sell the iPad Mini and has refused to fix
the problem or to amend its marketing materials to reflect the
existence of the defect. Instead, Apple has insisted, against the
weight of evidence, that the defect is normal. As a result of the
Defendant's unlawful, unfair, and fraudulent acts and omissions,
the Plaintiff and Class members suffered injury in fact, including
lost money or property, says the suit.
Apple Inc. is a technology company, with its principal place of
business in Cupertino, California. [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
- and –
Joseph I. Marchese, Esq.
BURSOR & FISHER, P.A.
888 Seventh Avenue
New York, NY 10019
Telephone: (646) 837-7150
Facsimile: (212) 989-9163
E-mail: jmarchese@bursor.com
APPLE INC: Court Dismisses Smith Class Suit Without Leave to Amend
------------------------------------------------------------------
Judge Denise Cote of the U.S. District Court for the Southern
District of New York granted Apple's November 5 motion to dismiss
the case, ANTOINETTE SMITH, FRED SANTOS, and CHARLES TUCKER,
Plaintiffs v. APPLE, INC., Defendant, Case No. 21cv3657 (DLC)
(S.D.N.Y.).
I. Background
The Plaintiffs bring claims on behalf of two putative classes
against Defendant Apple for misleading consumers about the extent
of the Apple iPhone's resistance to water exposure.
Apple is a California corporation, with its principal place of
business in California. It manufactures, markets, and sells the
iPhone smartphone. Recent models of the iPhone have been rated and
marketed as resistant to water damage. In particular, iPhone models
beginning with the iPhone 7 have a water resistance rating of IP67
or IP68 according to standards set forth by the International
Electrotechnical Commission. These ratings indicate that the
iPhones can withstand being submerged in fresh water of a
temperature between 590F and 950F at a depth of up to one meter for
up to 30 minutes.
Apple has marketed its iPhone's water-resistant properties. Its
advertisements show the iPhone being splashed with and submerged in
various liquids, including fresh water, ocean water, and beverages
appearing to be coffee or tea. Apple's advertisements also state
that the iPhone 11 is "water resistant up to 2 m for 30 min."
Apple's user manuals and warranties, however, are less optimistic
about the iPhone's durability when exposed to liquids. Its warranty
disclaims coverage for damage caused by liquids. And it
acknowledges that water resistance can decrease as the iPhone ages,
especially when exposed to hot or pressurized water, or to liquids
other than water.
The Plaintiffs purchased iPhones that broke, and that Apple refused
to fix on the ground that the iPhones had sustained damage from
contact with liquids. Plaintiffs Antoinette Smith and Fred Santos
are residents of New York, and purchased their iPhones in New York
in late 2017. Smith's iPhone began to malfunction in early 2021
after it sustained contact with water. Santos' iPhone was damaged
in late 2020 after exposure to mild splashing in the office. In
both cases, the Plaintiffs notified Apple about the damage their
iPhones had received, but Apple refused to assist them.
Plaintiff Charles Tucker is a resident of South Carolina, and
purchased an iPhone 11 for his daughter in February of 2020. The
iPhone began to malfunction in January of 2021. Apple refused to
cover the damage, however, claiming that it was caused by contact
with liquids. Tucker denies that the iPhone ever sustained water
damage.
Plaintiff Antoinette Smith brought the action against Apple on
April 24, 2021. Apple moved to stay the case or, in the
alternative, dismiss the complaint on September 8. The complaint
was then amended on October 9, adding Fred Santos and Charles
Tucker as Plaintiffs. Apple again moved to stay the case or, in the
alternative, dismiss the first amended complaint ("FAC") on
November 5, and the Plaintiffs opposed the motion on December 4.
The motion became fully submitted on December 17. On February 2,
the Court ordered that the Plaintiffs amend their complaint to
include allegations establishing diversity jurisdiction if they
could do so consistent with Fed. R. Civ. P. 11. The Plaintiffs
submitted the Second Amended Complaint the same day, adding only
allegations regarding the number of members in the SAC's purported
classes.
The second amended complaint ("SAC") asserts claims on behalf of
the named Plaintiffs, as well as two classes of purchasers who
purchased iPhones in New York and South Carolina, respectively. The
Plaintiffs allege that the classes comprise at least 100 members,
and have suffered over $5 million in damages. Thhey request both
monetary and injunctive relief.
The Court has jurisdiction pursuant to the Class Action Fairness
Act of 2005 ("CAFA"). CAFA confers federal jurisdiction over
"certain class actions where: (1) the proposed class contains at
least 100 members; (2) minimal diversity exists between the
parties; and (3) the aggregate amount in controversy exceeds $5
million." The SAC alleges that there are over 100 class members,
and that the aggregate amount of the class members' claims exceeds
$5 million. Additionally, Smith and Santos are residents of New
York, and Tucker is a resident of South Carolina, while Apple is a
California corporation with its headquarters in California. CAFA's
diversity, numerosity, and amount-in-controversy requirements have
therefore been satisfied.
II. Discussion
The complaint brings causes of action against Apple for violation
of the New York General Business Law ("GBL") and South Carolina
Consumer Protection Code; breach of contract; breach of express
warranty, implied warranty of merchantability, and the
Magnuson-Moss Warranty Act; fraud; negligent misrepresentation; and
unjust enrichment. Apple has requested a stay pending the
resolution of similar claims against it in California. If the case
is not stayed, Apple moves to dismiss the complaint for failure to
state a claim pursuant to Fed. R. Civ. P. 12(b)(6), to dismiss
Tucker's claims due to lack of personal jurisdiction pursuant to
Fed. R. Civ. P. 12(b)(2), and to dismiss the Plaintiffs' request
for injunctive relief due to lack of standing pursuant to Fed. R.
Civ. P. 12(b)(1).
A. Motion to Stay
Apple moves to stay the case under the Colorado River doctrine,
pending resolution of a similar lawsuit in California state court
over Apple's alleged exaggeration of the iPhone's water resistance
-- Miguel v. Apple Inc., 21-cv-8341.
Judge Cote denied Apple's motion to stay. She explains that if the
federal and state actions are parallel, Colorado River requires a
court to consider six factors: (1) whether the controversy involves
a res over which one of the courts has assumed jurisdiction; (2)
whether the federal forum is less inconvenient than the other for
the parties; (3) whether staying or dismissing the federal action
will avoid piecemeal litigation; (4) the order in which the actions
were filed and whether proceedings have advanced more in one forum
than in the other; (5) whether federal law provides the rule of
decision; and (6) whether the state procedures are adequate to
protect the plaintiff's federal rights.
Judge Cote finds that abstention in the case is not warranted
because the action is not parallel to Miguel v. Apple. Both
lawsuits involve claims against Apple for overstating the ability
of the iPhone to resist damage from contact with liquid. But the
Miguel action is brought by California plaintiffs, on behalf of a
California class, stating claims under California law. The present
case, on the other hand is brought by plaintiffs from New York and
South Carolina, raising claims under the laws of each state, on
behalf of classes of purchasers within each state.
Consideration of the six Colorado River factors also weighs against
abstention. First, in neither action has either court been asked to
assert jurisdiction over any res. Second, the federal forum is no
less convenient for the parties than the state forum -- Apple is
located within the jurisdiction of the California action, but many
of the Plaintiffs in the present case reside in New York. Third,
the risk of piecemeal litigation does not weigh in favor of
abstention, as there are no overlapping state court claims and any
conflict between different rulings can be handled by normal claim
preclusion principles. Fourth, the California action was filed only
a few weeks before this case, and most of the Plaintiffs' claims
survived the California court's ruling on Apple's demurrer last
November. The fifth and sixth factors do not favor abstention since
the fifth factor carries little weight when state law provides the
rule of decision and the federal plaintiffs are not before the
state court. Accordingly, evaluation of these factors, "with the
balance heavily weighted in favor of the exercise of jurisdiction,"
does not warrant abstention.
B. Personal Jurisdiction
Apple moves to dismiss all claims brought by Tucker and the
putative South Carolina class for lack of personal jurisdiction.
Because these claims do not arise out of Apple's contacts with New
York, they must be dismissed, Judge Cote holds.
Apple argues that Tucker's claims must be dismissed under the Due
Process Clause because they do not arise out of any of Apple's
contacts with New York. But Judge Cote finds that the SAC does not
assert that the South Carolina claims arise out of any of Apple's
contacts with New York. Tucker is a resident of South Carolina, and
brought his daughter's iPhone to be repaired in North Carolina.
None of the SAC's allegations regarding Tucker or the South
Carolina class mention any contacts with New York. The Plaintiffs
have therefore failed to "identify any adequate link between the
forum State and the nonresidents' claims."
Instead of alleging a nexus between the South Carolina claims and
Apple's forum state contacts, the Plaintiffs argue that
Bristol-Myers does not apply in the context of federal class
actions. They point to other District Court decisions which have
held that Bristol-Myers does not prevent a court from exercising
jurisdiction over claims brought on behalf of nonresident class
members -- e.g. Simon v. Ultimate Fitness Group, LLC, No.
19-cv-890, 2019 WL 4382204, at *4 (S.D.N.Y. Aug. 19, 2019)
(compiling cases).
Many of these cases are easily distinguished, Judge Cote opines. In
any event, for the reasons given above, the SAC fails to plead a
nexus between Tucker's claims on behalf of a South Carolina class
and the Defendant's forum state contacts. All claims brought by
Tucker, including those brought on behalf of the putative South
Carolina class, must be dismissed.
C. Failure to State a Claim
Apple moves to dismiss each of the Plaintiffs' causes of action for
failure to state a claim pursuant to Fed. R. Civ. P. 12(b)(6). In
order to state a claim and survive a motion to dismiss, "the
complaint must plead 'enough facts to state a claim to relief that
is plausible on its face.'" "A claim has facial plausibility when
the plaintiff pleads factual content that allows the court to draw
the reasonable inference that the defendant is liable for the
misconduct alleged." "In determining if a claim is sufficiently
plausible to withstand dismissal," a court "accepts all factual
allegations as true" and "draws all reasonable inferences in favor
of the plaintiffs."To evaluate the adequacy of a complaint, "a
district court may consider the facts alleged in the complaint,
documents attached to the complaint as exhibits, and documents
incorporated by reference in the complaint."
First, Judge Cote opines that the SAC fails to plausibly allege an
injury from conduct described in the advertisements. The SAC
asserts that Smith's iPhone malfunctioned after "sustained contact
with water." It alleges that Santos's iPhone was damaged after
contact with water and other unspecified liquids. The SAC fails to
plead therefore that the Plaintiffs' iPhones were damaged by liquid
contact that Apple's advertisements suggested they could withstand.
Accordingly, the GBL claims must be dismissed.
Second, the SAC points to no warranty provisions that Apple has
breached. It even concedes that "the issue of water damage is not
technically a warranty issue." Additionally, Apple's warranty
expressly disclaims coverage for damage due to "liquid contact."
The Plaintiffs having failed to identify any warranty Apple made
that its products could resist water damage, and Apple having
expressly disclaimed such a warranty, the claim for breach of
express warranty must be dismissed.
Third, Judge Cote holds that even if the implied warranty of
merchantability had not been adequately disclaimed, the SAC has not
alleged that it was breached. It does not allege that the
Plaintiffs' iPhones were incapable of making calls, browsing the
internet, running applications, or otherwise performing the
"ordinary purposes for which such goods are used." Its sole
complaint is that the iPhone is not sufficiently resistant to
water. Accordingly, the Plaintiffs have not plausibly alleged that
Apple has violated any implied warranty of merchantability.
Fourth, the Plaintiffs also bring a claim for violation of the
Magnuson-Moss Warranty Act ("MMWA"), 15 U.S.C. Sections 2301 et
seq. The MMWA prevents sellers of a consumer product from
disclaiming warranties implied under state law if the seller also
extends an express warranty. It does not, however, create new
substantive warranty obligations, which remain "solely the creation
of state law." As she explained, Judge Cote holds that the
Plaintiffs have not successfully alleged any claim for a breach of
an express or implied warranty. Accordingly, their MMWA claim must
also be dismissed.
Fifth, the SAC alleges that Apple breached an implied contract to
repair or replace iPhones not resistant to water damage. It lacks,
however, any allegations of the "facts" or "circumstances" that
might indicate that the parties had agreed to such a contract. The
conclusory assertion that such a contract existed is not enough to
sustain the plaintiffs' claim. Additionally, the SAC's implied
contract claim is inconsistent with its allegations that Apple
provided an express warranty. Accordingly, the breach of contract
claim is dismissed.
Sixth, Judge Cote opines that the SAC fails to allege fraud with
the requisite particularity. It alleges generally that the
Plaintiffs relied on Apple's marketing statements about the
iPhone's water resistance. But it does not specify which statements
the plaintiffs viewed or when, and it does not explain in what way
those statements were fraudulent. Similarly, the SAC contains only
a conclusory assertion that Apple acted with fraudulent intent. It
does not plausibly allege that Apple knew its iPhones were not as
water resistant as advertised, giving "rise to a strong inference
of fraudulent intent." The claim for fraud therefore is dismissed.
Seventh, the claim for negligent misrepresentation suffers from
many of the same defects as the fraud claim. The SAC does not
identify with the requisite particularity which false statements
the plaintiffs relied upon or when those statements were made.
Additionally, it fails to allege facts sufficient to demonstrate a
special relationship between the Plaintiffs and Apple.
Finally, the only allegation in the complaint specific to unjust
enrichment simply restates that the iPhone did not match Apple's
representations or the Plaintiffs' expectations. The Plaintiffs do
not explain why their unjust enrichment claim is distinct from
their other claims, or distinct from a conventional tort or
contract action. Accordingly, the Plaintiffs' unjust enrichment
claim must be dismissed.
D. Leave to Amend
The Plaintiffs request that, in the event their second amended
complaint is dismissed, they be granted leave to file a third
amended complaint.
Judge Cote opines that leave to amend is not appropriate. The
defects in the claim for breach of an implied contract cannot be
cured through amendment. The FAC also added a second New York
Plaintiff. The only claim that could theoretically be amended to
survive a renewed motion to dismiss is Santos' claim under the GBL.
Santos' GBL claim, however, suffers from the same defects as
Smith's. Santos does not plausibly allege that his iPhone suffered
water damage that Apple represented it could survive, and his
allegation that his iPhone sustained contact with liquids other
than water suggests otherwise. The plaintiffs were on notice that
their complaint suffered from this deficiency. They were already
given an opportunity to amend their complaint after Apple first
moved to dismiss it on the ground that, among other things, the
complaint failed to allege that Smith's iPhone had been damaged by
contact with water that Apple's advertisements suggested it could
withstand. And the plaintiffs have not provided any proposed
amendment or explained how any additional amendment would cure this
defect. Accordingly, leave to amend is denied.
III. Conclusion
Apple's November 5 motion to stay is denied. Apple's November 5
motion to dismiss is granted. The Clerk of Court will enter
judgment for the Defendant and close the case.
A full-text copy of the Court's Feb. 2, 2022 Opinion & Order is
available at https://tinyurl.com/2u88pmfu from Leagle.com.
Spencer Sheegan -- spencer@spencersheehan.com -- Sheegan &
Associates, P.C., in Great Neck, New York, for the Plaintiffs.
David John Fioccola -- dfioccola@mofo.com -- Adam James Hunt --
adamhunt@mofo.com -- Morrison & Foerster LLP (NYC), in New York
City, for the Defendant.
APPLE INC: Suit Over Misleading iPhone Water Resistance Dismissed
-----------------------------------------------------------------
Ben Lovejoy at 9to5mac.com reports that a federal judge has ruled
that iPhone water resistance claims made in Apple's advertising may
be misleading, but she has still rejected a proposed class action
lawsuit.
The lawsuit alleged that Apple misled consumers about the extent of
the waterproofing, and therefore overcharged for the phones . . .
CTV News reports.
A federal judge dismissed a proposed class-action lawsuit accusing
Apple Inc of misleading consumers about how resistant its iPhones
are to water exposure.
Apple's advertisements had made various claims about the iPhone's
resistance to damage when submerged or otherwise exposed to water,
including that some models could survive depths of 4 metres (13.1
feet) for 30 minutes.
The named plaintiffs, two from New York and one from South
Carolina, claimed that Apple's "false and misleading"
misrepresentations let the company charge twice as much for iPhones
than the cost of "average smartphones."
U.S. District Judge Denise Cote in Manhattan said the plaintiffs
plausibly alleged that Apple's ads could mislead consumers, but did
not show their iPhones were damaged by "liquid contact" Apple
promised they could withstand.
Judge Cote ruled that there was no evidence that Apple's claims
were misleading - only that a plausible allegation had been made -
and the plaintiffs had also failed to show that their purchase
decisions were based on any waterproofing claims by Apple.
Interestingly, Italian regulators did find that Apple's water
resistance claims were misleading, as they were based on laboratory
conditions and not real-life use - and the warranty conditions
specifically excluded liquid damage.
Apple made water resistance claims without making it clear to
consumers that these were true only in ideal laboratory conditions,
and phones had not passed the same tests in real-life conditions [.
. .]
[The court also took] into account Apple's refusal, in the
post-sales phase, to honor warranties when those iPhone models were
damaged by water or other liquids [GN]
ARTECH INFORMATION: Settles Class Suit Over Alleged Data Breach
---------------------------------------------------------------
natlawreview.com reports that Artech Information Systems settled a
data breach class action for an incident that occurred in January
2020. Artech will pay up to $10,000 to each individual affected by
the breach, based on a tiered payment system.
Artech, a staffing company specializing in placement for IT staff
and project services, was the victim of a ransomware attack in
January 2020 that resulted in unauthorized access to confidential
information concerning about 30,000 current and former employees.
During the attack, the hackers opened and downloaded thousands of
employee files that contained employees' names, addresses,
telephone numbers, Social Security numbers, and dates of birth. The
unauthorized access occurred over a three-day period, but upon
discovery, Artech was able to mitigate the attack within six hours.
However, Artech did not notify its employees of the incident until
several months after resolving the breach.
The class alleged that Artech failed to protect their personal
information through reasonable cyber security measures and failed
to make prompt notification to its employees. The class further
alleged that Artech's failures increased their risk for identity
theft and fraud.
Under the terms of the class action settlement, all class members
are eligible for three years of credit monitoring and identity
protection services, and cash compensation is available for class
members who suffered fraud as a result of the incident. The cash
compensation is structured as tiered payments:
Tier 1: Up to $80 in payments for lost time at a rate of $26.67 per
hour, capped at three hours; available to class members who provide
documentation of time spent addressing the breach.
Tier 2: Up to $10,000 in out-of-pocket losses resulting from the
breach; available to class members for losses resulting from
identity theft or other fraud enabled by the access to/disclosure
of personal information (documentation must be provided).
The exclusion deadline was Jan 7, 2022, and all class members
eligible for cash compensation must submit a valid claim by
February 26, 2022. Class members will have until May 10, 2022, to
submit a request for the free credit monitoring. This settlement is
just another reminder for businesses to secure and protect their
systems and data, and to check in with their insurance brokers to
make sure that cyber incidents and data breach class actions like
this are covered. [GN]
ASTRA SPACE: Faces Artery Suit Over 14% Decline of Stock Price
--------------------------------------------------------------
LORRAINE A. ARTERY, individually and on behalf of all others
similarly situated, Plaintiff v. ASTRA SPACE INC. F/K/A HOLICITY
INC., CHRIS C. KEMP, KELYN BRANNON, and STEVEN EDNIE, Defendants,
Case No. 1:22-cv-00737 (E.D.N.Y., February 9, 2022) is a class
action against the Defendants for violations of Sections 10(b) and
20(a) of the Securities Exchange Act of 1934.
According to the complaint, the Defendants made materially false
and/or misleading statements with the U.S. Securities and Exchange
Commission about Astra Space's business to trade Astra Space
securities at artificially inflated prices between February 2, 2021
and December 29, 2021. Specifically, the Defendants made false
and/or misleading statements and/or failed to disclose that: (1)
Astra cannot launch "anywhere"; (2) Astra significantly overstated
its addressable market; (3) Astra overstated the effectiveness of
its designs and reliability; (4) Astra significantly overstated its
plans for diversification and its broadband constellation plan; and
(5) as a result, the Defendants' public statements were materially
false and/or misleading at all relevant times.
When the truth emerged, Astra's shares fell $1.10 per share, or
approximately 14 percent, to close at $6.61 per share on December
29, 2021, on unusually heavy trading damaging investors.
Astra Space Inc., formerly known as Holicity Inc., an operational
space launch company headquartered in Alameda, California. [BN]
The Plaintiff is represented by:
Phillip Kim, Esq.
Laurence M. Rosen, Esq.
THE ROSEN LAW FIRM, P.A.
275 Madison Ave., 40th Floor
New York, NY 10016
Telephone: (212) 686-1060
Facsimile: (212) 202-3827
E-mail: pkim@rosenlegal.com
lrosen@rosenlegal.com
AYTU BIOPHARMA: Aponowicz Sues Over Breach of Fiduciary Duties
--------------------------------------------------------------
RAFAL APONOWICZ, derivatively on behalf of AYTU BIOPHARMA, INC. and
individually on behalf of himself and all other similarly situated
stockholders of AYTU BIOPHARMA, INC. v. GARY CANTRELL, JOSHUA
DISBROW, CARL DOCKERY, JOHN DONOFRIO JR., and MICHAEL MACALUSO,
Defendants, and AYTU BIOPHARMA, INC., Nominal Defendant, Case No.
2022-0135 (Del. Ch., Feb. 9, 2022) asserts claims for breach of
fiduciary duty and breach of contract against the current members
of the Company's Board of Directors arising out of the Board's
abuse of the authority entrusted to it under the Company's
stockholder-approved 2015 Stock Option and Incentive Plan.
The complaint asserts that in 2015, the Board adopted the 2015
Stock Option and Incentive Plan and the Company's stockholders
approved the said Plan. Subject to certain specified conditions and
limitations, the Plan, as amended in 2020, authorized the Board to
grant up to 5,000,000 shares of Aytu common stock as equity awards
to the Company's officers, employees, non-employee directors, and
consultants.
On December 8, 2020, the Company effected a 1-for-10 reverse stock
split pursuant to which every 10 shares of the Company's
outstanding common stock were combined and converted into one share
of common stock, thus reducing the number of outstanding Aytu
shares from 129 million to approximately 12.9 million. Pursuant to
the express language of the Plan, the Board was required to -- but
did not -- make a corresponding ten-fold decrease to the Share
Reserve, specifically to adjust it from 5,000,000 to 500,000
shares. Instead, in violation of the Plan, on April 16, 2021, five
members of the eight-person Board granted themselves an aggregate
of 1,551,216 shares of restricted stock under the Plan, well in
excess of the 500,000-share Share Reserve permitted by the Plan.
The decision by the Individual Defendants to grant themselves
Awards in excess of the 500,000-share Share Reserve permitted by
the Plan constitutes a violation of the terms of the Plan and a
breach of their fiduciary duty to the Company and its
stockholders.
Making matters worse, when Plaintiff brought his concerns about the
Plan violation to the Board -- which now consists of just the five
Individual Defendants -- by sending a formal demand letter and
requesting that the Board take corrective action (the "Litigation
Demand"), the Board refused. Instead, the Individual Defendants
further breached their fiduciary duties by rejecting the Litigation
Demand, refusing to adjust the Share Reserve, and refusing to
return the improper Awards, says the suit.
As a result of the alleged misconduct, the Company and its
stockholders have been harmed.
Plaintiff Aponowicz has continuously owned shares of Aytu common
stock since March 2021.
Aytu is a Delaware corporation with its principal place of business
in Englewood, Colorado. Aytu describes itself as a
"commercial-stage specialty pharmaceutical company focused on
commercializing novel products that address needs in both
prescription and consumer health categories." The Individual
Defendants are directors of the company.[BN]
The Plaintiff is represented by:
Shane T. Rowley, Esq.
Danielle Rowland Lindahl, Esq.
ROWLEY LAW PLLC
White Plains, NY 10606
Telephone: (914) 400-1920
Facsimile: (914) 301-3514
- and -
Brian E. Farnan, Esq.
Michael J. Farnan, Esq.
FARNAN LLP
919 N. Market St., 12 th Floor
Wilmington, DE 19801
Telephone: (302) 777-0300
Facsimile: (302) 777-0301
E-mail: bfarnan@farnanlaw.com
mfarnan@farnanlaw.com
BAPTIST HEALTH: Proskauer Rose Attorneys Discuss Court Ruling
-------------------------------------------------------------
Sydney Juliano, Esq., and Tulio D. Chirinos, Esq., in an article
for Proskauer Rose LLP, report that a federal district court in
Florida sent a proposed ERISA breach of fiduciary duty class action
to individual arbitration on the basis of a plan arbitration clause
that allowed for individual relief and plan-wide injunctive relief.
The case is Holmes v. Baptist Health South Florida, Inc., No.
21-cv-22986, 2022 WL 180638 (S.D. Fla. Jan. 20, 2022).
Plaintiffs, a proposed class of current and former Baptist Health
employees, sued the nonprofit health care organization in the
Southern District of Florida, alleging that defendants breached
their fiduciary duties in their management and selection of
investments for the organization's 403(b) retirement plan. In
response, defendants invoked the plan's arbitration clause, which
required individual arbitration of claims relating to the plan and
prohibited individuals from receiving "remedial or equitable
relief" that would provide "additional benefits or monetary relief
to any person . . . other than the Claimant[.]" The district court
granted defendants' motion to compel arbitration, holding that the
clause was enforceable under the Federal Arbitration Act (the
"FAA").
In doing so, the court held that the arbitration clause did not
fall within the "effective vindication" doctrine, a rarely invoked
exception to the FAA. The doctrine -- a judge-made exception to the
FAA -- permits courts to invalidate arbitration agreements that
prospectively waive a party's right to pursue statutory remedies.
Plaintiffs argued that the exception applied because the clause
prospectively waived plan-wide relief specifically authorized by
ERISA. The district court rejected this argument, finding that the
Eleventh Circuit has never applied the doctrine and has expressed a
hesitancy to do so.
In rejecting the application of the "effective vindication"
doctrine, the district court distinguished the arbitration clause
from one recently invalidated by the Seventh Circuit in Smith v.
Bd. of Directors of Triad Mfg., Inc., 13 F.4th 613 (7th Cir. 2021).
Unlike the clause in Smith, which barred certain relief entirely,
the clause in Baptist Health's plan still allowed individual
claimants to recover through arbitration the loss to their
individual accounts, as well as plan-wide relief, so long as it
would not provide "additional benefits or monetary relief" to any
other person.
The district court also held that Baptist Health's plan amendment
adding the arbitration clause after the participant ceased being a
plan participant did not render the clause unenforceable. Instead,
the district court noted that the relevant inquiry is whether the
plan agreed to arbitration, because plaintiffs' fiduciary-breach
claims were brought on behalf of the plan under ERISA Sec.
502(a)(2). Here, because the plan expressly provided for unilateral
amendment by the plan sponsor, the plan validly consented to the
arbitration clause even if the plaintiffs did not.
Proskauer's Perspective
The court's decision in Holmes is significant in at least two
respects. First, the district court's interpretation of the
provision as permitting claimants to obtain non-monetary relief for
the plan through arbitration may lead to outcomes that circumvent
arbitration's individual nature. As discussed in a previous post,
the Ninth Circuit previously enforced a similar arbitration
provision in a 401(k) plan but limited any potential relief to only
the losses to the plaintiff's individual 401(k) plan account. See
Dorman v. Charles Schwab Corp., 780 F. App'x 510 (9th Cir. 2019).
Although the ruling in Holmes limits defendants' monetary exposure,
it allows for broader and potentially impactful non-monetary
relief, such as the removal of a plan fiduciary or a particular
plan investment option.
Second, insofar as the outcome here diverges from the outcome in
Smith, an appeal of the district court ruling could give rise to a
split between the Eleventh and Seventh Circuits regarding the
application of the effective vindication exception.
District Court Enforces 403(b) Plan Arbitration Clause with Class
Action Waiver But Allows for Plan-wide Non-monetary Relief
The content of this article is intended to provide a general guide
to the subject matter. Specialist advice should be sought about
your specific circumstances. [GN]
CAPITAL ONE: To Settle MDL Data Breach Lawuit for $190-Mil.
-----------------------------------------------------------
Erin Shaak at classaction.org reports that $190 million settlement
was announced in the multidistrict litigation filed over the
Capital One data breach that was revealed in July 2019.
The proposed settlement, which still needs to be approved by a
judge, looks to provide reimbursement of up to $25,000 to data
breach victims for verifiable out-of-pocket losses, compensation
for time spent dealing with the effects of the incident and at
least three years of identity theft and restoration services.
Capital One has also agreed to implement certain changes to its
business practices to improve the bank's cybersecurity.
Read on to find out more about the settlement's benefits and how
you'll be able to file a claim.
What can I get from the settlement?
Those covered by the settlement (more on this below) will be able
to seek reimbursement of up to $25,000 for out-of-pocket losses
that are "fairly traceable" to the data breach. These costs, which
must be documented, may include:
Unreimbursed expenses or losses that occurred due to identity
theft, fraudulent tax returns or other misuse of the individual's
information;
-- Costs incurred on or after March 22, 2019 that were related to a
credit freeze on the person's credit file;
-- Miscellaneous expenses incurred on or after March 22, 2019
related to an out-of-pocket loss, such as the costs of notary
services, faxes, postage, copying, mileage and long-distance phone
calls; and
-- Costs of credit reports, credit monitoring or other identity
theft monitoring products incurred on or after March 22, 2019.
The settlement will also provide compensation for time spent
addressing or attempting to prevent fraud, identity theft or other
misuse of a data breach victim's personal information. This
reimbursement will be paid at $25 per hour or, if the individual
took time off work, at their hourly wage. Data breach victims can
claim up to 15 hours of lost time related to qualifying
out-of-pocket losses and five hours of lost time that was unrelated
to an out-of-pocket loss but spent addressing or attempting to
prevent misuse of their information.
The settlement also looks to provide at least three years of
identity defense services from data security company Pango that are
designed to detect and address potential identity theft and fraud.
These services include dark web monitoring, identity monitoring,
lost wallet protection, security freezes, identity theft and fraud
insurance, customer support and helpful tips.
Those whose Social Security number or linked bank account number
was compromised can also enroll in credit monitoring services.
Finally, even data breach victims who do not file a claim or enroll
in the identity defense services will receive access to fraud
resolution and identity restoration services via Pango for at least
three years. This coverage includes access to fraud resolution
specialists who can help data breach victims place fraud alerts
with credit bureaus, dispute information on their credit reports,
schedule calls with creditors, and dispute fraudulent transactions
or credit applications, among other tasks associated with
mitigating identity theft and fraud.
Who does the settlement aim to cover?
The proposed settlement looks to cover roughly 98 million U.S.
residents, as identified by Capital One, whose information was
compromised in the data breach announced on July 29, 2019.
Once the settlement receives the judge's go-ahead, Capital One will
come up with a list of affected individuals and notice of the
settlement will be sent to them via email or mail.
How do I file a claim?
Those covered by the settlement will be able to file a claim
through the official settlement website, which was not live at the
time of this post, or by mail.
Claims for reimbursement of out-of-pocket losses will need to be
accompanied by "reasonable documentation," such as credit card
statements, bank statements, invoices, phone records and receipts.
Claims for compensation for lost time will include a
self-certification as to how much time was lost.
Data breach victims will have 90 days after notice of the
settlement is sent out to file a claim for reimbursement of
out-of-pocket losses and/or lost time. They can also file a claim
for identity defense services during this 90-day period through the
settlement website or enroll directly with Pango anytime during the
period of service, which will be at least three years.
The fraud resolution and identity restoration services discussed
above are available without having to file a claim.
We'll update this page once the settlement website,
CapitalOneSettlement.com, is live and accepting claims.
The data breach
The litigation and proposed settlement stem from a data breach
discovered by Capital One in July 2019 that affected more than 106
million of the bank's credit card customers and applicants.
The information accessed during the breach, which reportedly
occurred on March 22 and 23, 2019, included credit card applicants'
names, addresses, phone numbers, email addresses, dates of birth,
self-reported income, credit information, transaction data and, for
some individuals, Social Security numbers or linked bank account
numbers.
A number of lawsuits were filed in the wake of the incident, and
more than 60 of them were consolidated into multidistrict
litigation (MDL) in October 2019.
A memo filed on January 31, 2022 praised the settlement as a
"tremendous result" for those covered by the deal, describing the
$190 million fund as "one of the largest created in any MDL data
breach litigation."
The next step in the process is for the judge to grant preliminary
approval to the settlement, after which notices will be sent to
those covered by the deal. Until then, one of the best things to do
is to stay informed.
How do I stay in the loop?
A great way to keep up with settlements and other class action news
is to sign up for ClassAction.org's free weekly newsletter here.
Each week, you'll get information about new cases and
investigations, along with recent settlements, sent straight to
your inbox.
You can also check back to this page for updates. Once the
settlement receives preliminary approval, keep an eye on your inbox
and mailbox for a class action notice. [GN]
CHEESECAKE FACTORY: To Pay $4.75M Settlement in Privacy Class Suit
------------------------------------------------------------------
Who Qualifies: The Class is made up of cardholders who hold the 1
million unique credit or debit card numbers, whose EMV debit or
credit card was used to make a purchase at a payment terminal at a
Cheesecake Factory owned, operated, or branded restaurant that was
programmed to print the first six and last four card numbers on
customers' receipts between Nov. 10, 2016, and Feb. 4, 2017. (NOTE:
Not all Cheesecake Factory locations printed receipts such as
these, and therefore, not everyone who received a printed receipt
between those dates is considered a Class Member.)
Potential Award: $28 to $56 (Estimated)
Proof of Purchase Required: Yes
Claim Deadline: 03/31/2022 [GN]
CHRIS BARBER: Class Action Lawsuit Over Air Horns Adjourned
-----------------------------------------------------------
Blair Crawford, writing for Postmedia News, reports that a class
action lawsuit that could have silenced air horns and sought $9.8
million in damages from organizers and some of the truckers at the
so-called "Freedom Convoy" in downtown Ottawa has been adjourned
until Feb. 7.
Ottawa lawyers Paul Champ and Emilie Taman filed the statement of
claim on Feb. 4, arguing that for the 6,000 residents in the
immediate vicinity of the protest "the non-stop blaring horns have
caused unbearable torment in the sanctity of their own homes." The
lawyers also asked for an injunction to stop the horn use.
But a lawyer defending three of the people named in the lawsuit
asked for the adjournment and said organizers of the convoy had
been negotiating to limit the horn use to between 8 a.m. and 8
p.m.
Alberta lawyer Keith Wilson of the Calgary-based Justice Centre for
Constitutional Freedom, called the case one of "national
importance."
"The truckers have an accord amongst themselves that the horns will
not sound between 8 p.m. and 8 a.m.," Wilson said at the virtual
hearing before Ontario Superior Court Justice Hugh McLean.
Wilson said he'd received more than 300 pages of documents since
Feb. 4 that he had not had time to review.
Champ, however, argued for an interim injunction, saying there was
evidence of "serious and irreparable harm" caused to the plaintiff
and proposed class action members by the noise.
"They are co-ordinated, they are doing it, they are planning it,"
Champ said. "It's severe. It's prolonged. And from the respondents'
own evidence, they'll be doing it 12 hours a day."
But McLean questioned how an injunction could be enforced,
especially if new truckers arrive at the protest.
"It's very easy if you block a road. Anyone who's on the the road
can simply be arrested," McLean said. "Here it's not that simple."
In most cases, interfering with someone's right to enjoy their
residence is a criminal code matter -- mischief or nuisance laws --
and not something civil courts usually deal with, he said.
"My question is, ‘How am I going to make an enforceable order?'
And if I'm at a loss of how to craft an order, then I shall not
give it."
The class action suit claims $9.8 million in private and punitive
damages as well as for an injunction to end the truckers' protest,
which was in its ninth day on Feb. 5.
Champ and Taman argue that for the 6,000 residents in the immediate
vicinity of the protest "the non-stop blaring horns have caused
unbearable torment in the sanctity of their own homes."
They argue the horns emit sound at dangerous levels that can cause
permanent hearing damage.
The plaintiff in the case is Zexi Li, described in the statement of
claim as a 21-year-old public servant and uOttawa graduate who
lives within five blocks of Parliament Hill. But the proposed
members of the lawsuit include "all persons who reside in Ottawa,
Ontario, from Bay Street to Elgin Street and Lisgar Street to
Wellington Street."
Meanwhile, Champ posted a video on Twitter on Feb. 5 stating that
Li was willing to drop the lawsuit if the protesters leave Ottawa
by Monday, Feb. 7, at 10 a.m.
The statement names as defendants the convoy's organizers: Chris
Barber of Swift Current, Sask., Benjamin Dichter of Toronto, Tamara
Lich of Medicine Hat, Alta., and Patrick King of Red Deer, Alta. It
also names 60 "John Does" -- drivers of semi-trucks in the protest
who may later be identified as having taken part in the
noise-making.
"A key tactic of the Freedom Convoy is blasting vehicle horns
non-stop, all day," the statement of claim notes.
"These horns include the air horns and train horns on the many
semi-trucks. Air horns and train horns create an extremely loud
noise as a warning. Air horns and train horns emit noise in the
range of 100 to 150 decibels. These horns are not meant to be used
for longer than a few seconds because the sound levels are
dangerous and cause permanent damage to the human ear. Despite
these dangers, the Freedom Convoy trucks have been blasting these
dangerous horns continuously for 12 to 16 hours per day."
The horn blowing, which has been organized and encouraged by
protest organizers, violates both City of Ottawa bylaws and the
criminal code, the statement of claim alleges. The bylaw prohibit "
the ringing of any bell, sounding of any horn, or shouting in a
manner likely to disturb the inhabitants of the city" and
"unnecessary motor vehicle noise such as the sounding of the horn,
revving of engine and the squealing of tires of any motor vehicle
on any property other than a highway."
The level of noise also violates Ontario's Occupation Health and
Safety Act and constitute mischief and causing a disturbance under
the criminal code, the statement alleges.
The statement also notes that " exposure to loud noise for a
prolonged period of time and sleep deprivation are both techniques
that have been found to constitute torture, and are considered to
be cruel, inhumane and degrading treatment under international
law."
Li says she has heard the horns in her apartment as late as 1:30
a.m. and that she's called police at least 14 times to complain
without anything being done.
"The honking of the horns is frequently accompanied by loud music,
sounds of shouting and fireworks. The combination of these sounds
makes the Plaintiff feel as though she is living in a war zone,"
the suit alleges.
The statement of claim was filed on Feb. 4 but has not been proven
in court. [GN]
CLARIVATE PLC: Faruqi & Faruqi Investigates Securities Claims
-------------------------------------------------------------
Faruqi & Faruqi, LLP, a leading national securities law firm, is
investigating potential claims against Clarivate Plc ("Clarivate"
or the "Company") (NYSE: CLVT) (NYSE: CLVT.PA) and reminds
investors of the March 25, 2022 deadline to seek the role of lead
plaintiff in a federal securities class action that has been filed
against the Company.
If you suffered losses exceeding $100,000 investing in Clarivate
stock or options between February 26, 2021 and December 27, 2021
and would like to discuss your legal rights, call Faruqi & Faruqi
partner Josh Wilson directly at 877-247-4292 or 212-983-9330 (Ext.
1310). You may also click here for additional information:
www.faruqilaw.com/CLVT.
There is no cost or obligation to you.
Faruqi & Faruqi is a leading minority and Woman-owned national
securities law firm with offices in New York, Pennsylvania,
California and Georgia.
As detailed below, the lawsuit focuses on whether the Company and
its executives violated federal securities laws by making false
and/or misleading statements and/or failing to disclose that: (1)
Clarivate maintained defective disclosure controls and procedures
as a result of a material weakness in its internal control over
financial reporting; (2) the foregoing material weakness was not
limited to how the Company accounted for warrants; (3) as a result,
Clarivate failed to properly account for an equity plan included in
its acquisition of CPA Global; (4) accordingly, the Company was
reasonably likely to restate one or more of its previously issued
financial statements following its acquisition of CPA Global; and
(5) as a result, the Company's public statements were materially
false and misleading at all relevant times.
On December 27, 2021, Clarivate disclosed in a filing with the U.S.
Securities and Exchange Commission ("SEC") that "[o]n December 22,
2021, Clarivate . . . concluded that the financial statements
previously issued as of and for the year ended December 31, 2020,
and the quarterly periods ended March 31, 2021, June 30, 2021, and
September 30, 2021, should no longer be relied upon because of an
error in such financial statements[.]" Specifically, Clarivate
reported that "[t]he error relates to the treatment under U.S.
generally accepted accounting principles ('GAAP') relating to an
equity plan included in the CPA Global business combination which
was consummated on October 1, 2020 ('the CPA Global
Transaction')[,]" and that "[i]n the affected financial statements,
certain awards made by CPA Global under its equity plan were
incorrectly included as part of the acquisition accounting for the
CPA Global Transaction."
Later that same day, an hour before market trading hours closed,
StreetInsider.com published an article on Clarivate entitled
"Clarivate Plc (CLVT) PT Lowered to $29 at Stifel on Accounting
Error." That article reported, in relevant part, that "Stifel
analyst Shlomo Rosenbaum lowered the price target on Clarivate . .
. to $29.00 (from $32.00)" following the Company's disclosure that
"it discovered an accounting error related to equity awards that
CPA Global had issued under its equity plan." That article quoted
the Stifel analyst, who commented, in relevant part, that "[t]he
timing of this discovery is poor, less than a month after the prior
CFO left, though we are told that the items are not related, and
this error was discovered in the last week[,]" and that "[t]his
error should not impact Revenue, Adjusted EBITDA or Adjusted FCF
[free cash flow], but it is likely to impact the GAAP EBITDA and
earnings, and the reported FCF."
Following Clarivate's SEC filing and the StreetInsider.com article,
Clarivate's ordinary share price fell $0.16 per share, or 0.65%, to
close at $24.58 per share on December 27, 2021. As the market
continued to digest the SEC filing and StreetInsider.com article,
Clarivate's ordinary share price fell an additional $1.70 per
share, or 6.92%, to close at $22.88 per share on December 28,
2021-a total decline of $1.86 per share, or 7.52%, over two
consecutive trading days.
The court-appointed lead plaintiff is the investor with the largest
financial interest in the relief sought by the class who is
adequate and typical of class members who directs and oversees the
litigation on behalf of the putative class. Any member of the
putative class may move the Court to serve as lead plaintiff
through counsel of their choice, or may choose to do nothing and
remain an absent class member. Your ability to share in any
recovery is not affected by the decision to serve as a lead
plaintiff or not.
Faruqi & Faruqi, LLP also encourages anyone with information
regarding Clarivate's conduct to contact the firm, including
whistleblowers, former employees, shareholders and others. [GN]
CONNECTICUT: Milchin Appeals Habeas Corpus Suit Dismissal
---------------------------------------------------------
Petitioner Michael Milchin filed an appeal from a court ruling
entered in the lawsuit styled Kevin Dimartino, Michael Milchin,
Steven Pagartanis, Kenneth Pelletier, John Matera, Eugene Castelle,
on behalf of themselves and all other similarly situated v. D.
Easter, Warden FCI Danbury; Acting Warden of FCI Danbury Current
Unknown; FCI Danbury Medical Staff; Federal Bureau of Prisons; Case
No. 3:21-cv-00498-KAD, in the U.S. District Court for the District
of Connecticut (New Haven).
Petitioners Kevin Dimartino, Michael Milchin, Steven Pagartanis,
Kenneth Pelletier, John Matera, and Eugene Castelle filed an
amended petition for writ of habeas corpus pursuant to 28 U.S.C.
Section 2241, on April 28, 2021. Therein, the Petitioners claim
that they have been subject to unconstitutional conditions of
confinement insofar as the Respondent has been deliberately
indifferent to their serious medical conditions in violation of the
Eighth Amendment prohibition against cruel and unusual punishment.
They seek release to home confinement.
In their amended petition, Petitioners allege that they are
currently inmates in Bureau of Prisons custody at the Federal
Corrections Institution Danbury. They purport to bring their
petition "on behalf of all current and future inmates who are in
the custody of BOP at FCI Danbury." The Petitioners generally
allege that systemic inadequacies of medical care constitute
deliberate indifference to their medical needs in violation of the
Eight Amendment. They maintain that the Respondent's health care
system for inmates fails to diagnose serious conditions, provide
timely care, administer appropriate medications, employ adequate
staff, and identify and correct its own failings. The amended
petition also includes general allegations relevant to FCI
Danbury's approach to the COVID-19 pandemic. Of significance here,
the only form of relief sought is an "order granting home
confinement to plaintiffs who suffer from serious medical concerns,
or at risk of serious medical concerns so they may address these
medical concerns," or "any further relief as the court deems
necessary."
On May 24, 2021, Respondent Jessica Sage filed a motion to dismiss
the petition in response to a May 5th Order to show cause.
On January 13, 2022, the Court entered an order granting this
motion to dismiss and finding as moot a motion to appoint counsel.
The Clerk of the Court was directed to dismiss the action and close
the file.
Mr. Milchin now seeks a review of this order.
The appellate case is captioned as Dimartino v. Sage, Case No.
22-244, in the United States Court of Appeals for the Second
Circuit, filed on Feb. 7, 2022.[BN]
Petitioner-Appellant Michael Milchin, on behalf of himself and all
other similarly situated plaintiffs, appears pro se.
Respondent-Appellee Acting Warden Jessica Sage is represented by:
Sandra Slack Glover, Esq.
Nathaniel Michael Putnam, Esq.
UNITED STATES ATTORNEY'S OFFICE FOR THE
DISTRICT OF CONNECTICUT
Connecticut Financial Center
157 Church Street
New Haven, CT 06510
COX COMMUNICATIONS: Appeals Denial of Bid to Intervene in Feltz
---------------------------------------------------------------
Movant DON GIL filed an appeal from a court ruling entered in the
lawsuit entitled CHRISTONE FELTZS, on behalf of himself and all
others similarly situated, v. COX COMMUNICATIONS LLC, a Delaware
Limited Liability Company; COX COMMUNICATIONS, INC. a Delaware
Corporation; and DOES 1 through 100, inclusive, Case No.
8:19-cv-02002-JVS-JDE, in the U.S. District Court for the Central
District of California, Santa Ana.
As reported in the Class Action Reporter, the lawsuit was removed
from the Superior Court of the State of California, County of
Orange, to the U.S. District Court for the Central District of
California on Oct. 21, 2019.
The Complaint asserted class claims for relief against the
Defendants arising out of the Plaintiff's employment with Defendant
Cox Communications California, LLC. Specifically, the Plaintiff
asserted class claims for Cox California's alleged (1) failure to
pay wages as a result of "illegal rounding;" (2) failure to provide
meal periods; (3) failure to pay all wages due at separation; (4)
failure to provide accurate wage statements; and (5) unfair
competition. The Plaintiff asserted his class claims on behalf of
himself and all other technicians who worked in California
"providing installation and maintenance services" (referred as
Universal Home Technicians or "UHTs") from July 26, 2015, to the
present.
On January 3, 2022, the Movant filed a motion to intervene and on
January 19, 2022, he filed an EX PARTE APPLICATION to Stay Case
pending Supreme Court Review in Turrieta v. Lyft, Inc.
On January 21, 2022, the Court entered an order denying Mr. Gil's
motion for intervention and denying the ex parte application for a
stay.
The Movant now seeks a review of this order.
The appellate case is captioned as Christone Feltzs v. Cox
Communications Cal., LLC, et al., Case No. 22-55160, in the United
States Court of Appeals for the Ninth Circuit, filed on Feb. 9,
2022.
The briefing schedule in the Appellate Case states that:
-- Appellant Don Gil Mediation Questionnaire is due on Feb. 16,
2022;
-- Transcript will be ordered by March 10, 2022;
-- Transcript is due on April 11, 2022;
-- Appellant Don Gil opening brief is due on May 17, 2022;
-- Appellees Cox Communications Cal., LLC, Cox Communications,
Inc., Cox Enterprises, INC., Does and Christone Feltzs answering
brief is due on June 17, 2022; and
-- Appellant's optional reply brief is due 21 days after service
of the answering brief.[BN]
Movant-Appellant DON GIL, Proposed Intervenor, is represented by:
Eric Keith Yaeckel, Esq.
SULLIVAN LAW GROUP, APC
2330 Third Ave
San Diego, CA 92101
Telephone: (619) 702-6760
Plaintiff-Appellee CHRISTONE FELTZS, on behalf of himself and
others similarly situated, is represented by:
Justin Morgan Crane, Esq.
David P. Myers, Esq.
THE MYERS LAW GROUP, APC
9327 Fairway View Place, Suite 100
Rancho Cucamonga, CA 91730
Telephone: (909) 919-2027
E-mail: jcrane@myerslawgroup.com
Defendants-Appellees COX COMMUNICATIONS CAL., LLC, a Delaware
Limited Liability Company; and COX COMMUNICATIONS, INC., a Delaware
Corporation, are represented by:
Paul Berkowitz, Esq.
Rachel Howard, Esq.
Thomas Roy Kaufman, Esq.
SHEPPARD MULLIN RICHTER & HAMPTON, LLP
333 S Hope Street, 43rd Floor
Los Angeles, CA 90071-1448
Telephone: (310) 228-3700
E-mail: pberkowitz@sheppardmullin.com
rhoward@sheppardmullin.com
tkaufman@sheppardmullin.com
DENKA PERFORMANCE: Butler Appeals PI Suit Dismissal to 5th Cir.
---------------------------------------------------------------
Plaintiff Juanea L. Butler filed an appeal from a court ruling
dismissing her lawsuit captioned JUANEA L. BUTLER, individually and
as representative of all others similarly situated v. DENKA
PERFORMANCE ELASTOMER, LLC, ET AL., SECTION F, Civil Action No.
18-6685, in the U.S. District Court for the Eastern District of
Louisiana, New Orleans.
This environmental tort litigation arises from the production of
neoprene at the Pontchartrain Works Facility ("PWF") in St. John
the Baptist Parish. Neoprene production allegedly exposes those
living in the vicinity of the PWF to concentrated levels of
chloroprene above the upper limit of acceptable risk and allegedly
may result in a risk of cancer more than 800 times the national
average.
Juanea L. Butler has lived in LaPlace, Louisiana since 1998. She
sued the Louisiana Department of Health ("LDH"), the Louisiana
Department of Environmental Quality ("DEQ"), Denka Performance
Elastomer LLC ("Denka"), and E.I. DuPont de Nemours and Company
seeking class certification, damages, and injunctive relief in the
form of abatement of chloroprene releases from her industrial
neighbor, the PWF.
Ms. Butler's Class Action Petition for Damages was filed on June 5,
2018, in the 40th Judicial District Court for St. John the Baptist
Parish.
As reported in the Class Action Reporter on Jan. 24, 2022, Judge
Martin L.C. Feldman granted Defendants' motion to dismiss the
case.
The appellate case is captioned as Butler v. Dupont Performance
Elastomers, L.L.C., Case No. 22-30069, in the U.S. Court of Appeals
for the Fifth Circuit, filed on Feb. 8, 2022.[BN]
Plaintiff-Appellant Juanea L. Butler, individually and as
representative of all others similarly situated, is represented
by:
Danny Dustin Russell, Esq.
RUSSELL LAW FIRM, L.L.C.
11616 Southfork Avenue
Baton Rouge, LA 70816
Telephone: (225) 307-0088
E-mail: danny@dannyrusselllaw.com
Defendants-Appellees E I DuPont de Nemours & Company; State of
Louisiana, Through the Department of Health; Incorrectly named as
Louisiana State Through the Department of Health and Hospitals; and
Dupont Performance Elastomers, L.L.C., formerly known as DuPont Dow
Elastomers, L.L.C., are represented by:
Deborah DeRoche Kuchler, Esq.
KUCHLER POLK WEINER, L.L.C.
1615 Poydras Street
New Orleans, LA 70112
Telephone: (504) 592-0691
E-mail: dkuchler@kuchlerpolk.com
- and -
Bradley Weidenhammer, Esq.
KIRKLAND & ELLIS, L.L.P.
300 N. LaSalle Street
Chicago, IL 60654
Telephone: (312) 862-3218
E-mail: bradley.weidenhammer@kirkland.com
- and -
W. L. West, Esq.
ROEDEL, PARSONS, BLACHE, FONTANA,
PIONTEK & PISANO, A.L.C.
8440 Jefferson Highway
Baton Rouge, LA 70809
Telephone: (225) 929-7033
E-mail: cwest@roedelparsons.com
ELECTRIC LAST: Bragar Eagel Reminds Investors of April 4 Deadline
-----------------------------------------------------------------
Bragar Eagel & Squire, P.C., a nationally recognized stockholder
rights law firm, announces that a class action lawsuit has been
filed against Electric Last Mile Solutions, Inc. ("Electric Last
Mile" or the "Company") (NASDAQ: ELMS) in the United States
District Court for the District of New Jersey on behalf of all
persons and entities who purchased or otherwise acquired Electric
Last Mile securities between March 31, 2021 and February 1, 2022,
both dates included (the "Class Period"). Investors have until
April 4, 2022 to apply to the Court to be appointed as lead
plaintiff in the lawsuit.
According to the lawsuit, defendants throughout the Class Period
made false and/or misleading statements and/or failed to disclose:
(1) ELMS's previously issued financial statements were false and
unreliable; (2) ELMS's earlier reported financial statements would
need restatement; (3) certain ELMS executives and/or directors
purchased equity in the Company at substantial discounts to market
value without obtaining an independent valuation; (4) on November
25, 2021 (Thanksgiving), the Company's Board formed an independent
Special Committee to conduct an inquiry into certain sales of
equity securities made by and to individuals associated with the
Company; and (5) as a result, Defendants' statements about its
business, operations, and prospects, were materially false and
misleading and/or lacked a reasonable basis at all relevant times.
When the true details entered the market, the lawsuit claims that
investors suffered damages.
If you purchased or otherwise acquired Electric Last Mile shares
and suffered a loss, are a long-term stockholder, have information,
would like to learn more about these claims, or have any questions
concerning this announcement or your rights or interests with
respect to these matters, please contact Brandon Walker or
Alexandra Raymond by email at investigations@bespc.com, telephone
at (212) 355-4648, or by filling out this contact form. There is no
cost or obligation to you.
About Bragar Eagel
Bragar Eagel & Squire, P.C. is a nationally recognized law firm
with offices in New York, California, and South Carolina. The firm
represents individual and institutional investors in commercial,
securities, derivative, and other complex litigation in state and
federal courts across the country. For more information about the
firm, please visit www.bespc.com. Attorney advertising. Prior
results do not guarantee similar outcomes. [GN]
ELECTRIC LAST: Kessler Topaz Reminds of April 4 Deadline
--------------------------------------------------------
The law firm of Kessler Topaz Meltzer & Check, LLP (www.ktmc.com)
informs investors that a securities class action lawsuit has been
filed against Electric Last Mile Solutions, Inc. ("Electric Last
Mile") (NASDAQ: ELMS) f/k/a Forum Merger III Corp. (NASDAQ: FIII).
The action charges Electric Last Mile with violations of the
federal securities laws, including omissions and fraudulent
misrepresentations relating to the company's business, operations,
and prospects. As a result of Electric Last Mile's materially
misleading statements to the public, Electric Last Mile investors
have suffered significant losses.
CLICK HERE TO SUBMIT YOUR ELECTRIC LAST MILE LOSSES. YOU CAN ALSO
CLICK ON THE FOLLOWING LINK OR COPY AND PASTE IN YOUR BROWSER:
https://www.ktmc.com/elms-class-action-lawsuit?utm_source=PR&utm_medium=link&utm_campaign=elms
LEAD PLAINTIFF DEADLINE: April 4, 2022
CLASS PERIOD: March 31, 2021 through February 1, 2022
CONTACT AN ATTORNEY TO DISCUSS YOUR RIGHTS:
James Maro, Esq. (484) 270-1453 or Toll Free (844) 887-9500 or
Email at info@ktmc.com
ELECTRIC LAST MILE'S ALLEGED MISCONDUCT
Electric Last Mile is a commercial electric vehicle solutions
company that focuses on designing, engineering, manufacturing, and
customizing electric delivery and utility vehicles.
On February 1, 2022, after regular market trading hours, Electric
Last Mile revealed that its previously issued financial statements
should no longer be relied upon as the company would be restating
its previously issued financial statements from August 20, 2020
(inception) through December 31, 2020, including statements in
Electric Last Mile's registration statement. Electric Last Mile
also announced the resignations of defendants James Taylor and
Jason Luo, the company's co-founders and CEO and Executive
Chairman, respectively. In addressing their resignations, Electric
Last Mile revealed that following an investigation by a Special
Committee of the Board of Directors into "certain sales of equity
securities" made by and to individuals associated with the company,
Electric Last Mile determined that in November and December 2020,
certain executives purchased equity in the company "at substantial
discounts to market value" without any independent valuation.
Following this news, Electric Last Mile's share price fell $2.88
per share, or 51%, to close at $2.71 per share on February 2,
2022.
WHAT CAN I DO?
Electric Last Mile investors may, no later than April 4, 2022 seek
to be appointed as a lead plaintiff representative of the class
through Kessler Topaz Meltzer & Check, LLP or other counsel, or may
choose to do nothing and remain an absent class member. Kessler
Topaz Meltzer & Check, LLP encourages Electric Last Mile investors
who have suffered significant losses to contact the firm directly
to acquire more information.
WHO CAN BE A LEAD PLAINTIFF?
A lead plaintiff is a representative party who acts on behalf of
all class members in directing the litigation. The lead plaintiff
is usually the investor or small group of investors who have the
largest financial interest and who are also adequate and typical of
the proposed class of investors. The lead plaintiff selects counsel
to represent the lead plaintiff and the class and these attorneys,
if approved by the court, are lead or class counsel. Your ability
to share in any recovery is not affected by the decision of whether
or not to serve as a lead plaintiff.
ABOUT KESSLER TOPAZ MELTZER & CHECK, LLP
Kessler Topaz Meltzer & Check, LLP prosecutes class actions in
state and federal courts throughout the country and around the
world. The firm has developed a global reputation for excellence
and has recovered billions of dollars for victims of fraud and
other corporate misconduct. All of our work is driven by a common
goal: to protect investors, consumers, employees and others from
fraud, abuse, misconduct and negligence by businesses and
fiduciaries. At the end of the day, we have succeeded if the bad
guys pay up, and if you recover your assets. The complaint in this
action was not filed by Kessler Topaz Meltzer & Check, LLP. For
more information about Kessler Topaz Meltzer & Check, LLP please
visit www.ktmc.com.
Contacts
Kessler Topaz Meltzer & Check, LLP
James Maro, Jr., Esq.
280 King of Prussia Road
Radnor, PA 19087
(844) 887-9500 (toll free)
info@ktmc.com [GN]
ELECTRIC LAST: Robbins Geller Reminds of April 4 Deadline
---------------------------------------------------------
Robbins Geller Rudman & Dowd LLP announces that purchasers of
Electric Last Mile Solutions, Inc. f/k/a Forum Merger III Corp.
(NASDAQ: ELMS; ELMSW) publicly traded securities between March 31,
2021 and February 1, 2022, inclusive (the "Class Period") have
until April 4, 2022 to seek appointment as lead plaintiff in Hacker
v. Electric Last Mile Solutions, Inc. f/k/a Forum Merger III Corp.,
No. 22-cv-00545 (D.N.J.). Commenced on February 3, 2022, the
Electric Last Mile class action lawsuit charges Electric Last Mile
and certain of its top executives with violations of the Securities
Exchange Act of 1934.
If you suffered substantial losses and wish to serve as lead
plaintiff of the Electric Last Mile class action lawsuit, please
provide your information by clicking here. You can also contact
attorney J.C. Sanchez of Robbins Geller Rudman & Dowd LLP by
calling 800/449-4900 or via e-mail at jsanchez@rgrdlaw.com. Lead
plaintiff motions for the Electric Last Mile class action lawsuit
must be filed with the court no later than April 4, 2022.
CASE ALLEGATIONS: Electric Last Mile purports to be a pure-play
commercial electric vehicle company. On June 25, 2021, Electric
Last Mile, Inc. and Forum Merger III Corp., a special purpose
acquisition company ("SPAC") or blank check company, closed the
merger which resulted in Electric Last Mile. Prior to the merger,
Electric Last Mile's securities traded on the NASDAQ under the
ticker symbols FIII, FIIIU, and FIIIW.
The Electric Last Mile class action lawsuit alleges that,
throughout the Class Period, defendants made false and misleading
statements and failed to disclose that: (i) Electric Last Mile's
previously issued financial statements were false and unreliable;
(ii) Electric Last Mile's earlier reported financial statements
would need restatement; (iii) certain Electric Last Mile executives
and/or directors purchased equity in Electric Last Mile at
substantial discounts to market value without obtaining an
independent valuation; (iv) on November 25, 2021, Electric Last
Mile's Board formed an independent Special Committee to conduct an
inquiry into certain sales of equity securities made by and to
individuals associated with Electric Last Mile; and (v) as a
result, defendants' statements about its business, operations, and
prospects were materially false and misleading and/or lacked a
reasonable basis at all relevant times.
On February 1, 2022, Electric Last Mile revealed that "Shauna
McIntyre, a member of [Electric Last Mile's] Board of Directors,
has been appointed as Interim Chief Executive Officer and
President, succeeding James Taylor, who has resigned from his role
as Chief Executive Officer and a member of the Board. In addition,
Brian Krzanich has been appointed Non-Executive Chairman of the
Board, replacing Jason Luo, who has also resigned from his position
as Executive Chairman of the Board. The departures follow an
investigation conducted by a Special Committee of the Board of
Directors (the 'Special Committee')." Electric Last Mile further
revealed that "[b]ased on the Special Committee's investigation,
[Electric Last Mile] has concluded that in November and December
2020, shortly before [Electric Last Mile's] December 10, 2020
announcement of a definitive agreement for a business combination
with Forum Merger III Corporation, certain Electric Last Mile Inc.
executives purchased equity in [Electric Last Mile] at substantial
discounts to market value without obtaining an independent
valuation." Electric Last Mile also disclosed that "on January 26,
2022, on the basis of the Special Committee investigation, the
Board concluded that [Electric Last Mile's] previously issued
consolidated financial statements should be restated and,
therefore, should no longer be relied upon. The financial
statements in question cover the period as of December 31, 2020,
the period from August 20, 2020 (inception) through December 31,
2020, the six months ended June 30, and the nine months ended
September 30, 2021." On this news, Electric Last Mile's share price
fell by approximately 51%, damaging investors.
Robbins Geller has launched a dedicated SPAC Task Force to protect
investors in blank check companies and seek redress for corporate
malfeasance. Comprised of experienced litigators, investigators,
and forensic accountants, the SPAC Task Force is dedicated to
rooting out and prosecuting fraud on behalf of injured SPAC
investors. The rise in blank check financing poses unique risks to
investors. Robbins Geller's SPAC Task Force represents the vanguard
of ensuring integrity, honesty, and justice in this rapidly
developing investment arena.
THE LEAD PLAINTIFF PROCESS: The Private Securities Litigation
Reform Act of 1995 permits any investor who purchased Electric Last
Mile securities during the Class Period to seek appointment as lead
plaintiff in the Electric Last Mile 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 RUDMAN & DOWD LLP: 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
http://www.rgrdlaw.comfor more information. [GN]
ELECTRIC LAST: Rosen Law Reminds Investors of April 4 Deadline
--------------------------------------------------------------
Rosen Law Firm, a global investor rights law firm, announces it has
filed a class action lawsuit on behalf of purchasers of the
securities of Electric Last Mile Solutions, Inc. f/k/a Forum Merger
III Corp. (NASDAQ: ELMS, ELMSW, FIII, FIIIU, FIIIW) between March
31, 2021 and February 1, 2022, inclusive (the "Class Period"). The
lawsuit seeks to recover damages for ELMS investors under the
federal securities laws.
To join the ELMS class action, go
http://www.rosenlegal.com/cases-register-2247.htmlor call Phillip
Kim, Esq. toll-free at 866-767-3653 or email pkim@rosenlegal.com or
cases@rosenlegal.com for information on the class action.
According to the lawsuit, defendants throughout the Class Period
made false and/or misleading statements and/or failed to disclose:
(1) ELMS's previously issued financial statements were false and
unreliable; (2) ELMS's earlier reported financial statements would
need restatement; (3) certain ELMS executives and/or directors
purchased equity in the Company at substantial discounts to market
value without obtaining an independent valuation; (4) on November
25, 2021 (Thanksgiving), the Company's Board formed an independent
Special Committee to conduct an inquiry into certain sales of
equity securities made by and to individuals associated with the
Company; and (5) as a result, Defendants' statements about its
business, operations, and prospects, were materially false and
misleading and/or lacked a reasonable basis at all relevant times.
When the true details entered the market, the lawsuit claims that
investors suffered damages.
A class action lawsuit has already been filed. If you wish to serve
as lead plaintiff, you must move the Court no later than April 4,
2022. A lead plaintiff is a representative party acting on behalf
of other class members in directing the litigation. If you wish to
join the litigation, go to
http://www.rosenlegal.com/cases-register-2247.htmlor to discuss
your rights or interests regarding this class action, please
contact Phillip Kim, Esq. of Rosen Law Firm toll free at
866-767-3653 or via e-mail at pkim@rosenlegal.com or
cases@rosenlegal.com.
NO CLASS HAS YET BEEN CERTIFIED IN THE ABOVE ACTION. UNTIL A CLASS
IS CERTIFIED, YOU ARE NOT REPRESENTED BY COUNSEL UNLESS YOU RETAIN
ONE. YOU MAY RETAIN COUNSEL OF YOUR CHOICE. YOU MAY ALSO REMAIN AN
ABSENT CLASS MEMBER AND DO NOTHING AT THIS POINT. AN INVESTOR'S
ABILITY TO SHARE IN ANY POTENTIAL FUTURE RECOVERY IS NOT DEPENDENT
UPON SERVING AS LEAD PLAINTIFF.
Rosen Law Firm represents investors throughout the globe,
concentrating its practice in securities class actions and
shareholder derivative litigation. Rosen Law Firm was Ranked No. 1
by ISS Securities Class Action Services for number of securities
class action settlements in 2017. The firm has been ranked in the
top 4 each year since 2013. Rosen Law Firm has achieved the largest
ever securities class action settlement against a Chinese Company.
Rosen Law Firm's attorneys are ranked and recognized by numerous
independent and respected sources. Rosen Law Firm has secured
hundreds of millions of dollars for investors. [GN]
ELITE STAFFING: Martinez Appeals RICO Class Action Dismissal
------------------------------------------------------------
Plaintiff Isaura Martinez filed an appeal from a court ruling
dismissing the lawsuit entitled MARGARITA MARQUEZ, DELFINA
CANDELAS, ISAURA MARTINEZ, and ANA LAURA FLORES on behalf of
themselves and similarly situated individuals Plaintiff v. SAUL
HERNANDEZ, individually, INTERNACIONAL EXPRESS, INC. d/b/a ENVIOS
DE DINERO, RED LATINA TRANSFER, INC., RON'S TEMPORARY HELP
SERVICES, INC., TRIUNE LOGISTICS, LLC, QUALITY STAFFING GROUP,
INC., and ELITE LABOR SERVICES, LTD., Defendants, Case No.
1:16-cv-10748, in the United States District Court for the Northern
District of Illinois.
On November 18, 2016, Francisco Hernandez filed a class action
complaint asserting various claims under the Racketeer Influenced
and Corrupt Organizations Act, the Fair Labor Standards Act, the
Illinois Minimum Wage Law, the Illinois Wage Payment Collection
Act, and the Illinois Day and Temporary Labor Services Act. The
Plaintiffs eventually filed a third amended complaint, which
several Defendants moved to dismiss under Federal Rule of Civil
Procedure 12(b)(6). On September 6, 2018, the Court dismissed only
the RICO claims, finding that the remaining claims were "marginally
sufficient" and thus stated a claim. The Court instructed
Plaintiffs to file an amended complaint, but only to make each
count more straightforward and to make it clear which counts
applied to which defendants. The Plaintiff complied with the
Court's instruction and filed a fourth amended complaint on
September 20, 2018.
Elite moved to dismiss on res judicata grounds, arguing that
Plaintiff is engaged in impermissible claim splitting following the
settlement of a prior lawsuit, Baker v. Elite Staffing, Inc.
On October 31, 2019, the Court granted Defendant Elite Staffing,
Inc.'s Motion to Dismiss Plaintiffs' Class Action Complaint against
it on res judicata grounds. On July 16, 2020, the Court denied
Plaintiffs' Motion for Reconsideration of the dismissal order. On
February 2, 2022, having resolved all claims against all parties,
the District Court entered a Final Order disposing of the case.
The appellate case is captioned as ISAURA MARTINEZ,
Plaintiff-Appellant v. ELITE STAFFING, INC., Defendant-Appellee,
Case No. 22-1186, in the United States Court of Appeals for the
Seventh Circuit, filed on Feb. 7, 2022.
The briefing schedule in the Appellate Case states that:
-- Docketing statement for Plaintiff Martinez was due Feb. 14,
2022;
-- Transcript information sheet is due on Feb. 22, 2022; and
-- Appellant's brief is due on March 21, 2022.[BN]
Plaintiff-Appellant ISAURA MARTINEZ is represented by:
Christopher J. Williams, Esq.
NATIONAL LEGAL ADVOCACY NETWORK
1 N. LaSalle Street, Suite 1275
Chicago, IL 60602
Telephone: (312) 795-9121
FENNEC PHARMACEUTICALS: Fisher Sues Over 50.41% Drop of Stock Price
-------------------------------------------------------------------
JEFFREY D. FISHER, individually and on behalf of all others
similarly situated, Plaintiff v. FENNEC PHARMACEUTICALS INC.,
ROSTISLAV RAYKOV, and ROBERT ANDRADE, Defendants, Case No.
1:22-cv-00115 (M.D. Cal., February 9, 2022) is a class action
against the Defendants for violations of Sections 10(b) and 20(a)
of the Securities Exchange Act of 1934.
According to the complaint, the Defendants made materially false
and/or misleading statements with the U.S. Securities and Exchange
Commission about Fennec's business, operations, and prospects to
trade Fennec securities at artificially inflated prices between May
28, 2021 and November 26, 2021. Specifically, the Defendants made
false and/or misleading statements and/or failed to disclose that:
(i) Fennec had not successfully remediated, and overstated its
efforts to remediate, issues with the manufacturing facility of its
drug product manufacturer for Pedmark, the company's drug candidate
for the prevention of ototoxicity in children; (ii) as a result,
the Food and Drug Administration (FDA) was unlikely to approve the
Resubmitted Pedmark New Drug Application (NDA); (iii) accordingly,
the regulatory and commercial prospects of the Resubmitted Pedmark
NDA were overstated; and (iv) as a result, the company's public
statements were materially false and misleading at all relevant
times.
When the truth emerged, Fennec's common share price fell $4.86 per
share, or 50.41 percent, to close at $4.78 per share on November
29, 2021.
Fennec Pharmaceuticals Inc. is a biopharmaceutical company, with
its principal executive offices located in Research Triangle Park,
North Carolina. [BN]
The Plaintiff is represented by:
David G. Schiller, Esq.
SCHILLER & SCHILLER, PLLC
304 East Jones Street
Raleigh, NC 27601
Telephone: (919) 789-4677
Facsimile: (919) 789-4469
E-mail: david@schillerfirm.com
- and –
Jeremy A. Lieberman, Esq.
J. Alexander Hood II, Esq.
POMERANTZ LLP
600 Third Avenue, 20th Floor
New York, NY 10016
Telephone: (212) 661-1100
Facsimile: (212) 661-8665
E-mail: jalieberman@pomlaw.com
ahood@pomlaw.com
FOREST LABS: DPPs, Retailers & End-Payors' Antitrust Suits Tossed
-----------------------------------------------------------------
In the case, IN RE BYSTOLIC ANTITRUST LITIGATION, This Document
Relates To All Direct Purchaser Actions CVS Action (No.
20-cv-10087) Walgreen Action (No. 20-cv-9793) All End-Payor
Actions, Case No. 20-cv-5735 (LJL) (S.D.N.Y.), Judge Lewis J. Liman
of the U.S. District Court for the Southern District of New York
issued an Opinion and Order:
a. granting the Defendants' motion to dismiss the Direct
Purchaser and the Retailer Plaintiffs' Complaints for
failure to state a claim;
b. granting the Defendants' motion to dismiss the End-Payor
Plaintiffs' Complaint for failure to state a claim;
c. denying without prejudice as moot the Nonresident
Defendants' motion to dismiss the End-Payor Plaintiffs'
Complaint's 99 non-New York, state-law claims for lack of
personal jurisdiction and Teva Israel's motion to dismiss
for lack of personal jurisdiction.
I. Background
The civil antitrust action alleges an illegal scheme to delay
competition from generic versions of Bystolic (nebivolol
hydrochloride), a prescription medication approved by the U.S. Food
and Drug Administration to treat high blood pressure.
The Plaintiffs are: A putative class of direct purchasers of
Bystolic and generic versions of Bystolic ("Direct Purchaser
Plaintiffs"); a putative class of indirect purchasers, including
consumers, health insurers, and welfare plans, of Bystolic and
generic versions of Bystolic ("End-Payor Plaintiffs"); and several
retail chains that bring individual lawsuits as assignees of direct
purchasers ("Retailer Plaintiffs"). THe Defendants are the
manufacturers and marketers of Bystolic (collectively referred to
as "Forest") and their generic-drug competitors ("Generic
Defendants"). Generic Defendants include Hetero, Torrent, Alkem,
Indchemie, Glenmark, Amerigen, and Watson.
The Plaintiffs allege that Forest agreed to pay Generic Defendants
to drop their challenges to a Bystolic patent and to delay
launching less expensive, competing generic versions of Bystolic
for years. The Direct Purchaser Plaintiffs bring a class action
complaint ("DPP Complaint") and the Retailer Plaintiffs bring
complaints against the Defendants, seeking damages under federal
antitrust law. The End-Payor Plaintiffs bring a class action
complaint ("EPP Complaint") against the Defendants under state
antitrust and consumer-protection laws and for injunctive relief
under federal antitrust law.
Specifically, the Direct Purchaser and the Retailer Plaintiffs'
Complaints bring claims for violations of Section 1 of the Sherman
Act, 15 U.S.C. Section, alleging agreements not to compete with
brand and generic Bystolic between Forest and the Generic
Defendants, and claims for violations of Section 2 of the Sherman
Act, 15 U.S.C. Section 2, alleging conspiracy to monopolize as to
brand and generic Bystolic through agreements between Forest and
the Generic Defendants and alleging monopolization and monopolistic
scheme against Forest. The EPP Complaint brings claims for
monopolization and monopolistic scheme under various state
antitrust laws against Forest; for conspiracy to monopolize under
various state antitrust laws against all the Defendants; for
combination and conspiracy in restraint of trade under various
state antitrust laws against all the Defendants; for unfair or
deceptive trade practices under various state consumer-protection
laws against all the Defendants; and for declaratory and injunctive
relief against all the Defendants under Section 16 of the Clayton
Act, 15 U.S.C. Section 26, for all the Defendants' violations of
Sections 1 and 2 of the Sherman Act.
Pending before the Court are four related motions to dismiss. On
April 23, 2021, all the Defendants move to dismiss the Direct
Purchaser and the Retailer Plaintiffs' Complaints for failure to
state a claim, and move to dismiss the End-Payor Plaintiffs'
Complaint for failure to state a claim, pursuant to Federal Rule of
Civil Procedure 12(b)(6). Defendant Teva Israel also moves pursuant
to Federal Rule of Civil Procedure 12(b)(2) to dismiss the claims
against it for lack of personal jurisdiction. And a group of 28
Defendants not at home in New York ("Nonresident Defendants") move
pursuant to Federal Rule of Civil Procedure 12(b)(2) to dismiss for
lack of personal jurisdiction the End-Payor Complaint's 99 non-New
York, state-law claims.
II. Discussion
A. Motion to Dismiss Direct Purchaser and Retailer Plaintiffs'
Complaints
Judge Liman turns first to the Defendants' motion to dismiss the
Direct Purchaser and the Retailer Plaintiffs' Complaints for
failure to state a claim. For brevity, his references to the
"Direct Purchaser Plaintiffs" and the "DPP Complaint" encompass the
Retailer Plaintiffs and the Retailer Plaintiffs' Complaints,
respectively.
The Defendants argue that the settlement agreements and side
agreements between Forest and each of the Generic Defendants are
lawful, that the Direct Purchaser Plaintiffs' Complaint depends on
improper generalized group pleading, that the Direct Purchaser
Plaintiffs' theories of causation fail as a matter of law and
should be struck from the pleading, and that the Direct Purchaser
Plaintiffs' construction of the Sherman Act violates due process.
Judge Liman explains that to survive a motion to dismiss pursuant
to Federal Rule of Civil Procedure 12(b)(6) for failure to state a
claim upon which relief can be granted, a complaint must include
"sufficient factual matter, accepted as true, to 'state a claim to
relief that is plausible on its face.'" A complaint must offer more
than "labels and conclusions," "a formulaic recitation of the
elements of a cause of action," or "naked assertions" devoid of
"further factual enhancement" in order to survive dismissal. The
ultimate question is whether "a claim has facial plausibility,
i.e., the plaintiff pleads factual content that allows the court to
draw the reasonable inference that the defendant is liable for the
misconduct alleged." "Determining whether a complaint states a
plausible claim for relief will be a context-specific task that
requires the reviewing court to draw on its judicial experience and
common sense." Put another way, Judge Liman says the plausibility
requirement "calls for enough fact to raise a reasonable
expectation that discovery will reveal evidence supporting the
claim."
Judge Liman turns to the agreements with each of the Generic
Defendants to determine whether the Direct Purchaser Plaintiffs
sufficiently allege that such agreements (the settlement agreement
and side deal read together) support the plausible inference of a
large and unexplained reverse payment under Actavis. He analyzes
Forest's agreements with each of the Generic Defendants separately
by the Generic Defendant. He says, where there are multiple generic
manufacturers, it does not follow that simply because a
reverse-payment agreement with one Generic Defendant is
anticompetitive, the brand manufacturer's agreements with every
other Generic Defendant is anticompetitive. Likewise, the fact that
one or more reverse-payment agreements a brand manufacturer has
with a Generic Defendant is not large or is justified would not
establish that no other reverse agreement is anticompetitive. A
patent owner who legitimately secures an agreement with one or more
potential generic competitors that would prevent the generic from
entering the market may still enter an anticompetitive agreement
with the remaining potential competitors. As the Supreme Court
observed in Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009),
"determining whether a complaint states a plausible claim for
relief will be a context-specific task."
1. Hetero
Forest executed the settlement agreement with Hetero to resolve the
patent litigation on Oct. 24, 2012. In addition to releasing the
claims, the agreement included a maximum payment of $200,000 for
Forest's avoided litigation fees and Hetero's litigation fees.
Hetero also received a license to sell generic Bystolic three
months before the patent expired, i.e., September 2021, and agreed
to not otherwise manufacture or market any generic equivalent of
Bystolic prior to the expiration of the patent.
The Direct Purchaser Plaintiffs allege that, prior to the Hetero
agreement, Forest had been able to obtain sufficient amount of
[/REDACTED] without a supply agreement with Hetero, and that, on
information and belief, Forest did not need such an agreement in
October 2012. They also allege, on information and belief, that the
payments under the supply agreement exceeded the fair value of any
products or services rendered by Hetero and that the agreement
itself was a pretextual conduit of cash from Forest to induce
Hetero to agree not to compete in the nebivolol market until
September 2021.
Judge Liman opines that though the Direct Purchaser Plaintiffs
plead a large reverse payment, they have failed to plead that it is
unjustified and have thus not "nudged their claims across the line
from conceivable to plausible." The DPP Complaint offers nothing to
support why the reverse-payment agreement is unjustified.
As to Hetero, Judge Liman holds that in any event, the Direct
Purchaser Plaintiffs cannot overcome their failure to plead that
the large reverse payment is unjustified. For that reason, he holds
that the Direct Purchaser Plaintiffs have failed to state a claim
with respect to the Hetero agreements.
2. Torrent
As with the DPP Complaint's allegations regarding the Hetero
agreements, Judge Liman opines that the allegations about the
Torrent agreements fall short of the requirement that the allegedly
large reverse payment be unexplained or unjustified. As with the
Hetero agreements, he does not credit or rely upon the conclusory
allegation that the payments related to the patent assignment
agreement exceeded the fair value of any products delivered or
services rendered by Torrent and that the agreement was a
pretextual conduit of cash from Forest to induce Torrent not to
compete. Additionally, the allegation, pleaded on information and
belief, that Forest only executed the patent assignment agreement
in exchange for Torrent's agreement to refrain from marketing
generic Bystolic until September 2021 is similarly conclusory.
All that remains are the allegations that the Torrent patents had
little or no value to Forest because Forest had been able to
successfully manufacture and sell Bystolic without that
intellectual property and that, on information and belief, Forest
knew about Torrent's patents before executing the patent assignment
agreement. But, for reasons analogous to the ones given with
respect to the Hetero allegations, Judge Liman holds that these
allegations cannot plausibly support that the large reverse payment
is unjustified. It does not plausibly follow that, because Forest
had been able to manufacture and sell Bystolic, the Torrent patents
had little or no value to Forest; there is a missing link between
the first statement and the conclusion of no value. If the DPP
Complaint contained factual allegations to support that the Torrent
patents had little or no value to Forest, the DPP Complaint would
then speak to the absence of bona fide fair consideration for the
patents and the lack of Forest's need for these patents, both of
which suggest the existence of an unjustified reverse payment. But
what is pleaded is deficient.
Judge Liman therefore holds that the Direct Purchaser Plaintiffs
have failed to state a claim with respect to the Torrent
agreements.
3. Alkem/Indchemie
Judge Liman granted the Defendants' motion to dismiss with respect
to the Alkem/Indchemie agreements for failure to state a claim. He
finds that the allegation -- recited verbatim with respect to
Forest's agreements with each of the Generic Defendants -- that the
payments under the term sheet exceeded the fair value of any
products delivered or services rendered by Alkem/Indchemie is
conclusory and a "label" insufficient alone to state a claim. He
says the Direct Purchaser Plaintiffs do allege that, prior to
entering into the term sheet, Forest had no need for a supply
agreement for [/REDACTED] and had not expressed an interest in
working with Alkem/Indchemie on [/REDACTED]. But these allegations
-- which might be sufficient if supported by fact -- are alleged
only on information and belief. The Direct Purchaser Plaintiffs
assert no facts to support the claim that Forest had no need for
additional products or services from Alkem and/or Indchemie to
support anticipated market demand for [/REDACTED] [/REDACTED]
products.
Nor are the facts to support this claim in the exclusive possession
of the Defendants. They further do not allege facts to support
that, prior to signing the settlement agreements and term sheet
with Alkem/Indchemie, Forest had expressed no interest in an
agreement with those companies. This cannot be enough to satisfy
Actavis. It is not enough that two parties entered into a new
agreement at the same time as they settled the patent litigation
for a reverse payment; the Plaintiff must allege that there is
something about that agreement other than its timing and the fact
that it results in the generic manufacturer honoring a patent that
supports the inference that it is anticompetitive.
4. Glenmark
Judge Liman holds that the Direct Purchaser Plaintiffs' allegations
regarding the Glenmark agreements suffer from the same deficiencies
as their allegations regarding the Alkem/Indchemie agreements. He
says, though they have plausibly alleged a large reverse payment,
they have failed to offer any factual allegations for why the
allegedly large reverse payment is unexplained or unjustified. The
Defendants' motion to dismiss is granted with respect to the
Glenmark agreements for failure to state a claim.
5. Amerigen
The Defendants' motion to dismiss is granted with respect to the
Amerigen agreements for failure to state a claim. Judge Liman holds
that with respect to the Amerigen agreements, the Direct Purchaser
Plaintiffs fail to state a claim under Sergeants Benevolent Ass'n
Health & Welfare Fund v. Actavis, plc, 2018 WL 7197233, at *1
(S.D.N.Y. Dec. 26, 2018), for the same reasons they did not state a
claim regarding the Alkem/Indchemie and Glenmark agreements. They
again plausibly allege a large reverse payment but they do not
allege facts to support the claim that the large reverse-payment
agreement is unjustified.
Akin to their pleadings with respect to the Alkem/Indchemie and
Glenmark agreements, the Direct Purchaser Plaintiffs offer only
conclusory allegations on information and belief that relate to
whether there was bona fide fair consideration for the property or
services and whether there was a history of demonstrated interest
in or need for the property or services on the part of the brand
manufacturer. Without factual allegations on these points, there
are not enough factual allegations to plausibly state a claim of a
large and unjustified reverse-payment agreement under Actavis.
6. Watson
Judge Liman determines that the Direct Purchaser Plaintiffs have
not sufficiently pleaded the existence of a reverse payment -- that
is, a payment from Forest to Watson. The complaint notably lacks
factual allegations regarding how that transfer of value, or
"payment," to Moksha8 was then conveyed to Watson, thereby
constituting a reverse payment from Forest to Watson through
intermediary Moksha8. The best the Direct Purchaser Plaintiffs can
do is plead, on information and belief, that Moksha8's release of
all claims against Watson was more valuable than any consideration
Watson paid for the releases. But, their allegations are entirely
conclusory and cannot serve to plausibly support the Direct
Purchaser Plaintiffs' claim. For these reasons, the Defendants'
motion to dismiss with respect to the Watson agreements is
granted.
7. Defendants' Remaining Arguments
Since he dismissed the Direct Purchaser Plaintiffs' claims as to
all the Defendants, Judge Liman need not reach the Defendants'
remaining arguments for dismissal: That the Direct Purchaser
Plaintiffs improperly group the 32 Defendants into ten corporate
families and fail to offer individual facts to support claims
against a couple particular Defendants; that the Direct Purchaser
Plaintiffs' theories of causation fail as a matter of law; and that
the Direct Purchaser Plaintiffs' construction of the Sherman Act's
reach under Actavis violates the Defendants' due process rights.
Judge Liman also need not address Defendant Teva Israel's motion to
dismiss the DPP Complaint for lack of personal jurisdiction. In
cases involving "multiple defendants -- over some of whom the court
indisputably has personal jurisdiction -- in which all defendants
collectively challenge the legal sufficiency of the plaintiff's
cause of action, the Court may address first the facial challenge
to the underlying cause of action and, if it dismisses the claim in
its entirety, decline to address the personal jurisdictional claims
made by some defendants." Accordingly, having dismissed the claims
in their entirety, Judge Liman declines to address Teva Israel's
arguments on personal jurisdiction.
8. Conclusion
Judge Liman therefore dismissed the Direct Purchaser Plaintiffs'
Complaint and the Retailer Plaintiffs' Complaints without
prejudice. He is not aware of any request by the Direct Purchaser
or the Retailer Plaintiffs to replead if their complaints are
dismissed, but "it is within the Court's discretion to sua sponte
grant leave to amend." Because the Direct Purchaser and the
Retailer Plaintiffs did not previously have the benefit of the
Court's views, because Judge Liman cannot say that any amendment
would be futile, and because the Circuit favors an opportunity to
replead after dismissal under Rule 12(b)(6), Judge Liman granted
the Direct Purchaser Plaintiffs and the Retailer Plaintiffs leave
to amend their complaints.
B. Motions Regarding End-Payor Plaintiffs' Complaint
Judge Liman now turns to the motions to dismiss the End-Payor
Plaintiffs' Complaint. Based on the same factual allegations of the
DPP Complaint, the End-Payor Plaintiffs bring 101 state-law claims.
In particular, they allege claims for monopolization and
monopolistic scheme against Forest under the antitrust laws of 23
states; claims for conspiracy to monopolize against all the
Defendants under the antitrust laws of 27 states; claims for
combination and conspiracy in restraint of trade against all the
Defendants under the antitrust laws of 27 states; and claims for
unfair or deceptive trade practices against all the Defendants
under the consumer-protection laws of 24 states.
Because the federal antitrust claims are dismissed, however, the
End-Payor Plaintiffs' claims under the antitrust laws of various
states-- based on the same factual allegations -- fail too. The
same can be said about the End-Payor Plaintiffs' remaining
twenty-four claims for unfair or deceptive trade practices under
state consumer-protection laws. The fundamental deficiency with
these claims is that they rely on the existence of anticompetitive
conduct, which Judge Liman has found insufficiently pleaded in the
context of the Direct Purchaser and the Retailer Plaintiffs'
federal antitrust claims.
For these reasons, the Defendants' motion to dismiss the End-Payor
Plaintiffs' Complaint for failure to state a claim is granted
without prejudice to repleading the state-law claims in light of
the dismissal of the federal antitrust claims. Accordingly, Judge
Liman need not consider the arguments from the Nonresident
Defendants' motion to dismiss the End-Payor Plaintiffs' Complaint's
99 non-New York, state-law claims for lack of personal jurisdiction
and Teva Israel's motion to dismiss the claims against it for lack
of personal jurisdiction.
III. Order
The Defendants' motion to dismiss the Direct Purchaser and the
Retailer Plaintiffs' Complaints for failure to state a claim is
granted, and the Direct Purchaser and the Retailer Plaintiffs'
Complaints are dismissed without prejudice to the Direct Purchaser
Plaintiffs and the Retailer Plaintiffs filing amended complaints by
Feb. 22, 2022. The Defendants' motion to dismiss the End-Payor
Plaintiffs' Complaint for failure to state a claim is granted, and
the End-Payor Plaintiffs' Complaint is dismissed without prejudice
to the End-Payor Plaintiffs filing an amended complaint by Feb. 22,
2022. The Nonresident Defendants' motion to dismiss the End-Payor
Plaintiffs' Complaint's 99 non-New York, state-law claims for lack
of personal jurisdiction and Teva Israel's motion to dismiss for
lack of personal jurisdiction are denied without prejudice as
moot.
The Clerk of Court is respectfully directed to close Dkt. Nos. 260,
265, 267, 271.
A full-text copy of the Court's Feb. 2, 2022 Opinion & Order is
available at https://tinyurl.com/5e6zyr9f from Leagle.com.
GOAUTO INSURANCE: Appeals Remand Order in Turner Suit
-----------------------------------------------------
GoAuto Insurance Company filed an appeal from a court ruling
entered in the lawsuit entitled ROBERT MARK TURNER, Individually
and on behalf of others similarly situated v. GOAUTO INSURANCE
COMPANY, Civil Action No. 21-00557-BAJ-RLB, in the U.S. District
Court for the Middle District of Louisiana.
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 Court,
invoking the Court's jurisdiction under the Class Action Fairness
Act of 2005 ("CAFA"), 28 U.S.C. Section 1332(d).
GoAuto 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."
As reported in the Class Action Reporter, Judge Brian A. Jackson
entered an order dated Jan. 28. 2022 granting Plaintiff's motion to
remand the action to the Nineteenth Judicial District Court for the
Parish of East Baton Rouge, Louisiana.
The Defendant seeks a review of this order.
The appellate case is captioned as GoAuto Insurance v. Turner, Case
No. 22-90006, in the U.S. Court of Appeals for the Fifth Circuit,
filed on Feb. 7, 2022.[BN]
Defendant-Petitioner GoAuto Insurance Company is represented by:
Jason W. Burge, Esq.
FISHMAN HAYGOOD, L.L.P.
201 Saint Charles Avenue
New Orleans, LA 70170
Telephone: (504) 586-5252
E-mail: jburge@fishmanhaygood.com
Plaintiff-Respondent Robert Mark Turner, individually and on behalf
of others similarly situated, is represented by:
Neil Davis Sweeney, Esq.
SWEENEY & MILLER
7921 Picardy Avenue
Baton Rouge, LA 70809-0000
Telephone: (225) 768-7300
E-mail: nds@sweeneylawfirmllc.com
GRAND ISLE: Underpays B-1 Workers, Ortiguerra Class Suit Alleges
----------------------------------------------------------------
VICTOR CAGARA ORTIGUERRA, DONATO MANALILI AGUSTIN, AMADO TRANATE
YUZON, CHRISTOPHER ESCALANTE RAYOS, ARVIN BANZON SAN PEDRO, and
WILFREDO BATONG SATUROS v. GRAND ISLE SHIPYARD, LLC., and GIS, LLC,
Case No. 2:22-cv-00309 (E.D. La., Feb. 9, 2022) alleges that the
Plaintiffs and other similarly situated workers routinely worked or
were on call upwards of 90 hours per week, but the Defendants did
not pay them the minimum wage and overtime wage required by the
Fair Labor Standards Act.
The Plaintiffs are skilled welders and/or fitters who worked for
Grand Isle Shipyard LLC and GIS, LLC in and around Galliano,
Louisiana at various times from 2006 until 2021.
The Plaintiffs are among over 50 nationals of the Philippines who
worked for the Defendants with B-1 visas as welders, fitters,
painters/riggers/blasters, cooks, mechanics, and
housekeepers/laundrymen in the Eastern District of Louisiana
(collectively, "B-1 workers").
Like Plaintiffs, the other B-1 workers resided at Defendants'
Lafourche Parish, Louisiana work camp and at various times also
worked offshore under the same or similar wage payment scheme,
which resulted in minimum wage and overtime underpayments, says the
suit.
Grand Isle provides oilfield and construction services.[BN]
The Plaintiffs are represented by:
Kenneth C. Bordes, Esq.
KENNETH C. BORDES, ATTORNEY AT LAW, LLC
4224 Canal St.
New Orleans, LA 70119
Telephone: (504) 588-2700
Facsimile: (504) 708-1717
E-mail: kcb@kennethbordes.com
- and -
Daniel Werner, Esq.
RADFORD & KEEBAUGH, LLC
315 W. Ponce de Leon Ave., Suite 1080.
Decatur, GA 30030
Telephone: (678) 271-0300
Facsimile: (678) 271-0304
E-mail: : dan@decaturlegal.com
GRAPHIC PACKAGING: Emissions Class Action Set to Move Forward
-------------------------------------------------------------
Jerry Malec, writing for WIN985, reports that a class-action
lawsuit on a Kalamazoo cardboard packaging plant is set to move
forward.
The lawsuit was filed by residents upset with emissions by Graphic
Packaging International on North Pitcher Street.
U.S. District Court Judge Janet Neff denied a motion by the plant
to dismiss or stay the lawsuit in a ruling in U.S. District Court
Western District of Michigan back on Monday, January 31. Northside
neighborhood residents filed the lawsuit in September of 2020,
saying the plant continued to release noxious odors, air particles,
and dust onto their property.
Residents complained in the lawsuit about burning eyes and
breathing problems.
Neff's decision follows the March 2021 motion filed by Graphic
Packaging to dismiss or pause the case indefinitely while the
Michigan Department of Environment, Great Lakes and Energy
investigated nuisance odor complaints and enforced violations of
environmental law.
In the January 31 ruling, Neff stated that Graphic Packaging
International "fails to specify a single issue or determination by
EGLE or any agency that would benefit or impact this case."
Laura Sheets, a Detroit attorney representing the Kalamazoo
residents, said more than 150 area households have asked to join
the lawsuit. [GN]
HAWAIIAN AIRLINES: District Court Denies O'Hailpin's Bid for TRO
----------------------------------------------------------------
In the case, RIKI O'HAILPIN, NINA ARIZUMI, ROBERT ESPINOSA, ERWIN
YOUNG, PUANANI BADIANG, SABRINA FRANKS, and RONALD LUM, on their
own behalf and on behalf of all others similarly situated,
Plaintiffs v. HAWAIIAN AIRLINES, INC. AND HAWAIIAN HOLDINGS, INC.,
Defendants, Civil No. 22-00007 JAO-KJM (D. Haw.), Judge Jill A.
Otake of the U.S. District Court for the District of Hawaii entered
an order:
a. denying the Plaintiffs' Application for Temporary
Restraining Order and for an Order to Show Cause Why
Preliminary Injunction Should Not Issue; and
b. granting Hawaiian's Application to Strike the Declaration
of Frederick Reed Bates, II, Attached to Plaintiffs' Reply
Brief in Support of Application for Temporary Restraining
Order and Preliminary Injunction.
I. Background
The putative class action concerns Defendant Hawaiian's denial of
religious and/or medical exemptions from its COVID-19 vaccine
policy, which requires employees to get vaccinated or face
termination. The Plaintiffs allege that Hawaiian's denial of their
requests for medical and/or religious exemptions was discriminatory
and retaliatory, in violation of the Americans with Disabilities
Act ("ADA") and Title VII.
On Aug. 9, 2021, Hawaiian informed its employees that effective
Nov. 1, 2021, it would require all U.S.-based employees to be
vaccinated against COVID-19, i.e., employees had to have received
the full dosage of the Pfizer, Moderna, or Janssen vaccine unless
they had a reasonable accommodation for a disability under the ADA
or a sincerely held religious belief that conflicted with receiving
the vaccine. Hawaiian published its vaccine policy on Sept. 17,
2021.
Hawaiian then implemented a Transition Period Testing Program
("TPTP"), which enabled employees who remained unvaccinated as of
Nov. 1, 2021 to continue working through Jan. 4, 2022, subject to
temporary COVID-19 testing procedures. The TPTP was designed in
part to give unvaccinated employees time to decide whether to be
vaccinated. It also offered a 12-month unpaid leave of absence
("LOA"), beginning Jan. 5, 2022, for employees who declined to get
vaccinated. Employees had to apply for participation in the TPTP by
Oct. 24, 2021.
Hawaiian permitted employees to request reasonable accommodations
("RA request") based on disabilities or sincerely held religious
beliefs by Oct. 1, 2021, though requests were accepted beyond that.
Due to the high volume of religious accommodation requests -- 500
total -- Hawaiian was unable to process all RA requests by the Nov.
1, 2021 vaccination deadline. To avoid terminating the employees
who did not receive a response regarding their RA request by Nov.
1, 2021, however, Hawaiian auto-enrolled them in TPTP as a
temporary accommodation. For those employees whose RA requests were
denied, Hawaiian reopened the option to request an LOA on Nov. 19,
2021. Id.
As of Jan. 1, 2022, 95% of Hawaiian's employees were vaccinated.
Several hundred employees whose RA requests were denied remain
unvaccinated. The employees who received exemptions are not
guest-facing and can socially distance and wear masks.
By Jan. 5, 2022, unvaccinated employees without an approved
accommodation or exemption, or who were not on an LOA, were subject
to termination proceedings.
Unvaccinated employees who were granted an LOA maintain health
insurance through the end of the month they begin their leave.
Unvaccinated union employees who did not request an LOA are in held
out of service ("HOS") status while they await hearings for their
union grievances, and they maintain health benefits. Unvaccinated
union employees who are members of the Airline Pilots Association
and the Association of Flight Attendants additionally maintain
travel benefits and pay. Non-union unvaccinated employees without
an LOA were separated as of Jan. 5, 2022.
The Plaintiffs initiated the action on Jan. 5, 2022, asserting the
following claims: (i) Counts I and II: religious discrimination in
violation of Title VII - failure to accommodate and retaliation
(all Plaintiffs); and (ii) Counts III and IV: disability
discrimination in violation of the ADA - failure to accommodate and
retaliation (O'Hailpin, Arizumi, and Lum).
On Jan. 10, 2022, the Plaintiffs filed their Application for TRO.
Hawaiian filed an Opposition on Jan. 21, 2022 and the Plaintiffs
filed a Reply on Jan. 25, 2022.
On Jan. 28, 2022, Hawaiian filed its Application to Strike. The
Plaintiffs filed an Opposition on Jan. 31, 2022.
The Court heard these matters on Feb. 1, 2022.
II. Discussion
The Plaintiffs request a TRO restraining and enjoining Hawaiian
from enforcing or otherwise requiring compliance with its vaccine
policy as a term of employment. They also ask the Court to issue an
order to show cause why a preliminary injunction should not issue.
A. Hawaiian's Application To Strike
Hawaiian moves to strike or disregard the Declaration of Frederick
Reed Bates, II ("Bates"), which is attached to the Reply, for
violating Local Rule 7.2. The Plaintiffs bear the burden of
demonstrating entitlement to a TRO, and Bates' Declaration -- or at
least the bulk of it -- could have and should have been submitted
with the Application for TRO. Reserving the Declaration for
submission with the Reply unfairly deprived Hawaiian of the
opportunity to respond.
In October 2021, Bates provided a similar declaration in Sambrano
v. United Airlines, a case in the Northern District of Texas in
which the Plaintiffs' pro hac vice counsel represents the
plaintiffs. And the Application for TRO raised nearly all of the
arguments supported by the Declaration, so there was no
justification for withholding Bates' Declaration until the Reply.
Accordingly, Judge Otake grants Hawaiian's Application and strikes
Bates' Declaration. Even if Bates' Declaration were allowed, it
would not alter the disposition of the Application for TRO because,
among other things, Bates' qualifications as an expert in the
subject matter are questionable. His professional background is in
the field of airline security, and it appears he managed (at most)
104 employees at once.
B. Application For TRO
1. Irreparable Harm
Judge Otake finds that the Plaintiffs characterize the following
harms as irreparable: chilling effect of retaliatory actions, loss
of health insurance, crisis of conscience, constitutional harm, and
miscellaneous harms associated with their loss of employment or
LOA. While he recognizes the deep significance of the harms to the
Plaintiffs, because these harms are common to loss of employment
cases and are not extraordinary, or are reparable, injunctive
relief is unwarranted.
She finds that (i) there is no irreparable harm based on
retaliatory conduct; (ii) the Plaintiffs will not suffer immediate
harm if they lose their health insurance because any harm would be
financially compensable; (iii) the instant case does not implicate
violations of constitutional rights; (iv) there are no
constitutional infringements that would constitute irreparable
harm; (v) the he timing of Lum's retirement flight ceremony removes
it from the realm of irreparable harm, as it is not an immediate
threatened injury; (vi) in employment vaccination policy cases,
assertions of irreparable harm premised on emotional or
psychological harm have been widely rejected; and (vii) the
Plaintiffs' bare and conclusory claim that Hawaiian is harming
their psychological well-being does not demonstrate an immediate
threatened injury, much less constitute the extraordinary
circumstances.
2. Likelihood Of Success On The Merits
Judge Otake holds that neither have the Plaintiffs established a
likelihood of success on the merits. The Plaintiffs contend that
they are likely to succeed on their claims and that the pendency of
their Equal Employment Opportunity Commission ("EEOC") inquiries
and charges do not preclude injunctive relief. Hawaiian refutes the
Plaintiffs' ability to succeed on their claims and it argues that
the Plaintiffs have failed to exhaust administrative remedies.
First, Judge Otake finds that the Plaintiffs' failure to exhaust
administrative remedies subjects their claims to dismissal so they
cannot establish a likelihood of success on the merits. Even if she
disregarded this failure, the lack of irreparable harm precludes
the issuance of an injunction to maintain the status quo pending
the conclusion of administrative proceedings.
Second, Judge Otake finds that the Plaintiffs have not demonstrated
a likelihood of success on the merits because they failed to
exhaust their administrative remedies. And even if they had, they
are unlikely to establish that Hawaiian discriminated or retaliated
against them under Title VII and/or the ADA.
Third, Judge Otake given the circumstances, and because the
Plaintiffs have not shown that their interests outweigh Hawaiian's
or the public's interests, she will not grant the TRO.
III. Conclusion
For the reasons she stated, Judge Otake (1) denied the Plaintiffs'
Application for TRO and (2) granted Hawaiian's Application to
Strike.
A full-text copy of the Court's Feb. 2, 2022 Order is available at
https://tinyurl.com/3nxwr9w2 from Leagle.com.
HYPERSPORT INDUSTRIES: Fails to Pay Proper OT Wages to Repairmen
----------------------------------------------------------------
MARK JACKSON, on behalf of himself and others similarly situated v.
HYPERSPORT INDUSTRIES, LLC, Case No. 2:22-cv-00537-ALM-CMV (S.D.;
Ohio, Feb. 9, 2022) alleges that Defendant failed to pay employees
overtime wages pursuant to the Fair Labor Standards Act of 1938,
the Ohio Minimum Fair Wage Standards Act, and the Ohio Prompt Pay
Act.
The Plaintiff was employed by the Defendant from August 2020 to
October 2021. He was employed as an hourly, non-exempt employee of
the Defendant as defined in the FLSA and the Ohio Acts.
Specifically, the Plaintiff was employed as an hourly autobody
repairman at one of Defendant's facilities. At all times during his
employment, he worked 40 or more hours in one or more workweek(s).
He contends that the Defendant routinely manually reduced his daily
hours worked in order to reduce the wages, including overtime, paid
to him.
The Defendant owns and operates automotive body shops and
employs/employed the Plaintiff and similarly situated employees to
provide automotive services to its customers.[BN]
The Plaintiff is represented by:
Matthew J.P. Coffman, Esq.
Adam C. Gedling, Esq.
Kelsie N. Hendren, Esq.
COFFMAN LEGAL, LLC
1550 Old Henderson Rd., Suite No. 126
Columbus, OH 43220
Telephone: (614) 949-1181
Facsimile: (614) 386-9964
E-mail: mcoffman@mcoffmanlegal.com
agedling@mcoffmanlegal.com
ILLINOIS: School Districts Scramble After Ruling Over Mask Mandates
-------------------------------------------------------------------
Charlie Schlenker and Sarah Nardi, writing for WGLT, report that
the Unit 5 and District 87 school districts plan to keep mask rules
in place following the Feb. 4 order. But several smaller districts
around McLean County are making masks optional, effective
immediately.
A Sangamon County judge's ruling in a lawsuit over mask mandates in
Illinois schools set off a weekend of scrambling and uncertainty as
districts consulted lawyers, state education officials, and school
board members in a flurry of online meetings.
The judge temporarily blocked Gov. JB Pritzker's statewide masking
mandate in nearly 170 school districts that were party to the
lawsuit that hinges on whether local districts or the State Board
of Education can decide whether to require masks be worn by
students and staff. Pritzker and Illinois Attorney General Kwame
Raoul have asked for an expedited appeal.
The temporary restraining order applies to school districts named
in the lawsuit, including Eureka #140, Prairie Central #8, Roanoke
Benson #60, Morton #709, El Paso-Gridley #11, Mahomet-Seymour CUSD
3, Dunlap #323, Metamora Township High School, and Metamora
Community Consolidated in central Illinois.
The impact on other districts is unclear. Districts including
Lexington, Heyworth, LeRoy, El Paso-Gridley, and Mahomet-Seymour
have already notified parents masks are voluntary.
"For those that weren't named (in the lawsuit), it is creating some
uncertainty and a lot of consternation about which direction to go,
at least in the short term," said Mark Jontry, the regional
superintendent of schools for Dewitt, Livingston, Logan, and McLean
counties. Jontry said he alone had been in five virtual meetings or
multiparty phone calls on Feb. 6.
Jontry said there is a general belief that those who are not party
to the lawsuit can probably continue to stay the course pending the
appeal. That's what Unit 5 is doing. In a message to parents and
students on Feb. 6, Unit 5 said masks are still required.
"We have received several messages from parents on all sides of the
issue, and we ask for your patience as we navigate this evolving
situation. This issue is now being processed through the courts,
which is where these types of legal decisions must be decided. In
the meantime, our current rules regarding masking and close contact
exclusion requirements will remain in place," Unit 5 told
families.
Illinois State University Lab Schools (Thomas Metcalf and
University High School) also said they will retain the mask
requirement.
"What the districts really don't want to do is to be bouncing back
and forth, between there is a mandate, and there isn't a mandate in
terms of enforcement," said Jontry.
Communicating with parents
Families, meanwhile, waited to hear from school districts about
their plans for Monday morning, Feb. 7.
The Lexington school district "will change to a mask-optional
policy for students and staff, cease exclusions of asymptomatic
'close contacts,' and cease mandatory vaccination or testing for
staff," the district said on Facebook on Feb. 6.
"In light of this order, the (Mahomet-Seymour) district is able to
shift to masks being recommended but not required, which is what
the Board of Education originally voted to do back in July of
2021," wrote Mahomet-Seymour Superintendent Lindsay Hall. "We will
be required to reassess the mask-optional policy if the ruling is
stayed or reversed. We will be in communication if changes are
required."
"Masking will be recommended, but not required at (El Paso-Gridley)
schools starting Monday, February 7, 2022," the EPG district said
on Facebook.
District 87 issued a statement on Feb. 6, saying it was reviewing
the judge's order and then followed up with communication to
parents saying they will "continue to follow the Governor's
Executive Order for all students staff, and, visitors to wear masks
while on school premises and on school buses."
Attorney Tom DeVore, who filed the lawsuit, said school systems
that want to keep masking and testing requirements now are doing so
at their own legal peril — even districts not part of his
lawsuit.
"If they want to try to make children that aren't named in this
case wear a mask, they're breaking the law, according to this
judge," DeVore told WBEZ in Chicago.
Regional Superintendent Jontry said DeVore is not necessarily
correct. He said specialists in education law believe there is
ambiguity in the judge's ruling. She denied class action status to
all public school districts in the state, but there was language
that could be read to indicate masks are something that can't be
enforced in any district.
"The attorneys are kind of like, 'Yeah, OK. That does create a
level of uncertainty.' And that's the core issue," said Jontry.
Unit 5 in Bloomington-Normal is not a party to the lawsuit. Unit 5
school board member Jeremy DeHaai has frequently spoken against the
mask mandate and told WGLT before the ruling that he agrees with
its core claim.
"That's what I wish what we would be doing is a state is allow
local control and make decisions as needed whether it's masking,
remote learning, whatever needs to be done, allow the local
officials and the districts to make those decisions," said DeHaai.
DeHaai said he does not believe mitigations should be immediately
thrown out the window. He said his frustration is that there is no
discussion of how districts will eventually get kids out of masks.
Teachers unions react
The Feb. 4 order distressed teachers' unions.
"This decision has the potential to shut our schools down,
effectively closing our school buildings and perhaps being potent
enough to stop in person learning altogether," said Illinois
Education Association President Kathi Griffin on the union
website.
The IEA represents teachers in Bloomington District 87.
"Without those (public health) safety measures in place, we risk
forcing thousands of teachers, education employees and students to
be out sick or forced into quarantine," said Griffin.
Griffin said the ruling has the potential to make an existing dire
staff shortage even worse.
"The judge's ruling calls into question the safety of schools
across the state and we will support all efforts to stop its
immediate implementation while state and district defendants pursue
an appeal," said Griffin.
And Regional Superintendent Mark Jontry said there is a big
potential unintended consequence to the ruling for districts that
lift mask mandates.
"Honestly, do they have to look at remote learning for a period of
time, if they do not have enough staff that feel like they can come
in person in in teach in that environment? That's one of the
biggest considerations that's currently out there right now," said
Jontry.
And Ben Matthews, IEA UniServ Director at the Bloomington office of
the Illinois Education Association said the temporary restraining
order reinforces that collectively bargained agreements still
govern and are enforceable.
"As we move forward we will be reviewing any current agreements we
have in place, engaging in conversations with district regarding
their plans, and bargaining any decisions -- or the impact of such
decisions -- as appropriate," said Matthews, who is based in
Bloomington.
Mark Jontry said there are implications for extracurricular
activities and athletic contests as well. Jontry said the
presumption is that the mask or no-mask rules that apply will be
controlled by the home district in each inter-school event. He said
it is possible districts that adhere to mask mandates would cancel
events with districts that are no-mask or mask-optional and
districts will be closely watching that situation.
"I don't know that they've gotten that far down the road yet.
They're trying to work through this immediate issue. Monday morning
is the Illinois High School Association's (IHSA) regularly
scheduled monthly board meeting. It's going to be a topic of
discussion at that board meeting. It'll be interesting to see what
if any guidance comes out from IHSA and or if they get any more
clarity on any changes that may occur from IDPH relative to the
current guidance that IHSA is disseminating to schools," said
Jontry.
Jontry said regardless of what happens the ruling will encourage
further legal challenges by districts that have so far not
contested Illinois State Board of Education policy.
Jontry did not foresee broader challenges to Illinois State Board
of Education policy that are not related to the pandemic, by school
districts arguing for local control. He said the language in the
suit centers on the use of Pritzker's executive orders.
"That's where the frustration is. It's time for General Assembly to
get involved," said Jontry. "What should the General Assembly
potentially look to more significantly codify around policies and
procedures when it comes to dealing with pandemic issues?"
Indeed, the judge in her ruling based part of her decision on the
restraining order on the fact that lawmakers have had multiple
opportunities to act and have not done so, thereby increasing the
legitimacy of challenges to the Governor's executive orders.
As of mid-afternoon on Feb. 6, Unit 5 and District 87 were in a
series of meetings to discuss the issue.
The dispute serves as another example of a society riven by public
policy approaches to the pandemic, one echoed in responses to WGLT
social media requests for comment from parents about mask issues.
Two thirds of 50 responses were in favor of continuing mask
requirements and one third expressed feelings that masks were not
useful, or that local districts should have the authority to decide
policy for their own students. [GN]
ILLINOIS: Won't Enforce Masking Requirements After TRO Ruling
-------------------------------------------------------------
KMOV.com reports that Highland School District Superintendent
Michael S. Sutton sent a letter to parents and staff saying the
school would no longer follow an executive order for masking
requirements, citing an Illinois judge's granting of a temporary
restraining order in a class action lawsuit.
Sutton said after hearing legal analysis of the ruling, he is
confident the district is not to enforce mask and quarantine
requirements for all students and staff.
"I am confident in saying that the district will not be enforcing
the mask requirement and identifying close contacts for purposes of
quarantine starting Monday morning, Feb. 7, per the judge's
ruling," Sutton said in the letter.
Sutton also said masks will still be encouraged, but not required.
Triad schools, Waterloo schools and The Diocese of Belleville
Catholic Schools will also go mask-optional starting Tuesday, Feb.
8, the districts announced.
Two other school districts named in the lawsuit, Collinsville and
Edwardsville, are taking different action after the ruling.
Collinsville School District Superintendent Mark B. Skertich sent a
letter to parents, announcing the ruling will only affect the five
children of families who are plaintiffs in the lawsuit, and not
everyone.
Only the children of those five families will no longer be required
to wear masks or be excluded from school after a close contact with
someone who is Covid positive. That decision was made after
consulting legal counsel, Skertich said.
Skertich started off the letter by speaking on the difficulty and
divisiveness this school year has seen.
"Nothing about navigating the current school year has been easy for
our students, staff or families," the letter read. "Because we
pride ourselves in full transparency, I am reaching out to you with
an update on how a recent court ruling will impact our school
district. The political divide in our country eventually made its
way into the courtroom resulting in a ruling with implications for
our schools. As a school district we do not choose sides, but
rather consult with district legal counsel to make decisions that
provide a safe environment for our students and staff, and allow
our students to grow academically and socially."
Masks will continue to be required for the rest of students and all
staff, Skertich said. Edwardsville School District Superintendent
Patrick Shelton echoed a similar message on Feb. 6 in a district
letter, saying children of families and staff named as plaintiffs
will no longer be required to abide by mask and quarantine rules.
Illinois Gov. JB Pritzker announced on Feb. 4 the state would
immediately appeal the temporary restraining order.
"The grave consequence of this misguided decision is that schools
in these districts no longer have sufficient tools to keep students
and staff safe while COVID-19 continues to threaten our communities
-- and this may force schools to go remote," Pritzker said in a
statement.
The Illinois Federation of Teachers also expressed disappointment
on Feb. 4 in a statement, saying the ruling was "legally faulty and
a threat to public health."
Illinois is not the only state where divisiveness over COVID-19
protocols has led to the courtroom. Missouri Attorney General Eric
Schmitt has sued 45 school districts in the state for requiring
masks.
News 4 reached out to Waterloo School District, which is also
affected by the judge's order. They have not responded. [GN]
ILUKA RESOURCES: Averts Class Suit Over Corporations Act Violations
-------------------------------------------------------------------
Patrick Boardman, Esq., of Clyde & Co., disclosed that only the
third judgement in a shareholder class action in Australia [1] was
handed down on 7 February 2022. The defendant company (Iluka
Resources) was successful on all counts and the judgment follows
the other recent successes in the WorleyParsons [2] class action
(where WorleyParsons was similarly successful on all counts) and
the Myer[3] class action (where Myer lost on liability but was
successful on causation). The judgment provides firstly, assurance
to companies and their D&O insurers that shareholder class actions
are not necessarily merely a cheque writing exercise and that
robust defences will be accepted by the courts; and secondly it
provides useful analysis of the factors that are required for a
successful defence of a shareholder class action in Australia,
including the importance of limitations and caveats on any
forecasts that are made.
Patrick Boardman acted for the lead primary D&O insurer of Iluka
and considers the case in further detail. Clyde & Co are very
pleased to say that they have now acted for the lead insurer on the
only two entirely successful shareholder class actions defences,
with Clyde & Co partner, Christopher Smith acting for the primary
D&O insurer in WorleyParsons.
Background
Iluka Resources Ltd (Iluka) is a large mining and global supplier
of mineral sands products (zircon, rutile and synthetic rutile
which are mainly used in the manufacture of ceramic tiles and
paint). The proceedings involved four ASX announcements regarding
production/sales forecasts:
-- the original yearly forecast on 23 February 2012 which was based
on Iluka's budget;
-- On 12 April when it maintained its forecast and 8 May when Iluka
slightly changed that original forecast; and
-- On 9 July 2012 when Iluka significantly reduced its forecasted
sales, at which time Iluka's share price fell 25%.
The proceedings were filed in 2018 and alleged that Iluka had
contravened its continuous disclosure obligations under the
Corporations Act and the misleading or deceptive conduct provisions
of the Corporations Act, ASIC Act and the Australian Consumer Law
in relation to its production and sales forecasts. The Applicant
effectively alleged that Iluka should have disclosed the 'true'
sales forecasts earlier or at least announced that the previous
forecasts would not be met, which would have caused the share price
to fall. This meant that shareholders who purchased in the relevant
intervening period purchased at an inflated price.
Issues in the Case
Two essential issues in the case were:
-- whether Iluka had reasonable grounds for the sales guidance
provided between April and July 2012 and;
-- whether Iluka was "aware" that its likely sales in 2012 would be
materially less than the guidance provided during the relevant
period being 12 April 2012 to 9 July 2012.
The Applicant alleged that Iluka knew that it:
-- did not have reasonable grounds to make either the April or May
forecast representations;
-- had information which created a material risk that both the
April and May forecast representations were no longer reliable;
was no longer able to provide reliable forecasts of future revenue,
or
-- did not have a reasonable basis for providing point estimates of
sales for mineral sands products rather than a broad range going
forward.
Whether representations were made at all?
An interesting element to the case was whether the representations
alleged by the Applicant had actually been made by Iluka. Iluka
specifically denied that it had made any forecast representations
in their announcements. The statements made were referable to
sales, not expected pricing, revenue or profit, and importantly,
were heavily caveated with limitations and disclaimers, including
that:
-- there were material risks that the sales guidance would not be
achieved, including identified;
-- there were a number of reasons why it had to qualify its 2012
sales guidance saying it could not be relied on as a predictor of
future performance and
-- its sales guidance was the best guidance it could provide at the
time but was subject to all its qualifications in its original
February announcement including:
(a) they were based on its current knowledge and understanding and
in good faith;
(b) they were all expressed to be an indicative guide only;
(c) they should not be relied upon as a predictor of future
performance;
(d) they were for the purpose of assisting sophisticated investors
with the modelling of the company; and
(e) they wouldn't be liable for the correctness and/or accuracy of
the information nor any differences between the information
provided and actual outcomes
The Judge held that the representations alleged by the Applicant
were not made by Iluka as the meaning prescribed to them by the
Applicant could not be maintained, particularly in light of the
stated limitations.
The Judge distinguished Myer which held that "a reasonable person
would not regard a standard form disclaimer as gutting the opinion
or forecast of meaningful content or that disclaimers could negate
the representations made." In Iluka the disclaimers were not
proforma, had been made in the context of identified difficulty in
predicting the global economic position on which sales were
dependent, were a prominent part of the documents and were said to
be directed to sophisticated investors for modelling purposes.
Further, the Judge determined that even if the representations were
made, the Applicant did not rely on them. Instead, he relied on
alternate analysis and research, such that the misleading and
deceptive conduct case failed.
What are "Reasonable" Grounds for Representations
Notwithstanding the finding that the representations were not made,
the Judge provided useful guidance on the evidence a company will
be required to adduce to support a reasonable basis for any
representations made[4].
In making an assessment about whether there was a reasonable basis,
the Judge rejected Iluka's proposition that a determination of
reasonableness only required the Judge to ask "did Iluka apply a
reasonable process, taking into account relevant information, to
arrive at the conclusions that it did?" The Judge said that in
answering the relevant question of whether or not there were
reasonable grounds for the representations, the issue was one of
substance, not merely process.
This meant that while the process on which a statement has been
formulated is relevant, it is not determinative of the issue and
there needs to be additional evidence before the court about how
that process was considered and implemented. In Myer, Beach J
referred to the directors' 'genuine assessment' which supported the
Judge's finding that there needed to be a question of substance.
In Iluka the Judge held that:
"The evidence has not exposed any issue which Iluka failed to
consider in formulating its public statements between February and
July 2012. It has not exposed any lack of a genuine assessment of
the relevance of the issue having regard to the circumstances as
they existed at the time. It has not exposed any material for which
in should be inferred that Iluka was unreasonably ignoring
information that did not suit it. Rather, the evidence has exposed
that the relevant Iluka personnel were highly experienced in the
markets in which Iluka operated, and were careful, diligent and
continuously exerted themselves to ensure that the information that
Iluka gave to the market was accurate and timely.
This is not mere evidence of a "process" . . . Iluka's evidence,
however, goes well beyond that of a mere robust process (although
the evidence does establish that its processes were robust)."
Iluka's evidenced showed that its witnesses were: (a) all highly
experienced in the industry; (b) the key personnel were well
informed about all relevant issues and were careful and considered
in their approaches; (c) had taken to account all issues of
relevance and had the objective of being as accurate as possible in
their guidance.
Continuous Disclosure - Whether a company needs to disclose an
opinion it doesn't have
The judge also rejected the Applicant's claim for breach of
continuous disclosure obligations on the basis that at the time of
making the April and May representations, Iluka had reasonable
grounds to make those statements and could not have been aware of
contrary information that those forecasts were no longer reliable.
However, the Judge rejected Iluka's submissions that the continuous
disclosure requirements "only require an opinion to be disclosed if
the opinion is actually held by the directors or if the opinion is
held by someone else and should have become known to the
directors"
This important limitation on continuous disclosure arose from the
previous decision in Myer and has been utilised extensively by
Defendants since. However, the Judge considered those comments to
be obiter and not binding on her. She held that if an officer had
possessed information from which they reasonably ought to have
formed a conclusion requiring disclosure, then a failure to
disclose that opinion would contravene the continuous disclosure
laws.
Causation - What does Short Selling of a Stock Indicate
Her Honour also found that the class members would have failed to
establish causation on the basis that the event study the class
members relied on was based on faulty expert evidence.
An interesting observation made by the judge was that if a
particular stock is being short sold it does not necessarily
provide an inference that a company's sales guidance is
unreasonable (i.e. it does not support the notion that all
information must not have been disclosed).
Analysis and Commentary
This successful defence by Iluka, together with the successful
defences in the Worley Parsons and Myer class actions provides
companies, their directors, and insurers with confidence that
shareholder class actions are not merely a cheque book writing
exercise and that a court will take account of well prepared and
relevant defences, with well-prepared witnesses, even about events
9 years earlier. It also provides an outline of how such cases can
be avoided or limited by careful and considered limitations and
restrictions on any forecasts provided.
Previously some Judges have been flippant enough to question
whether shareholder class actions required directions for service
of liability evidence, and whether all that was required was
quantum evidence, given that all shareholder class actions had
previously settled. Clearly that notion has been dispelled by
recent judgments.
The judgment:
-- emphasises that a company should have both clear and proper
processes in place in respect of any forecast provided to the
market, and a record of its detailed and considered assessment of
all relevant information by appropriately qualified and experienced
directors/officers. It was the evidence of the latter, aligned with
the former, which was critical in the successful defence of the
claim. Further, to rebut that proposition requires clear and
specific evidence by the Applicant.
-- demonstrates the importance of providing appropriate
qualifications and limitations to any market guidance, including:
any difficulties and uncertainties in providing the forecast;
emphasising it being an indicative guide only and not a predictor
of future performance; providing any limitation on its intended
audience and purpose. These qualifications are an area in which
companies and their D&O insurers could work together in seeking to
limit the risks of class actions arising and also potentially limit
the nature and extent of forecasts which insurers may be prepared
to cover.
The successful defence also highlighted the importance of a good
working relationship and involvement between the company, its
defence team and its D&O insurers. [GN]
INSIGHT PRODUCTIONS: Suit Dismissal Deadline May Delay Due to COVID
-------------------------------------------------------------------
mondaq.com reports that recently, an Ontario court in Bourque v.
Insight Productions1 dismissed a proposed class action for delay,
finding that a new provision's deadline in the Class Proceeding
Act, 19922 ("CPA") was enforceable despite temporary court closures
and suspension of limitations periods brought on by the pandemic.
The Decision
The defendants in a proposed employment class action bought a
motion for dismissal for delay under section 29.1 of the CPA
because the representative plaintiff filed her motion record six
days after the new statutory deadline. Coming into force on October
1, 2020, section 29.1 requires courts to dismiss a proposed class
action a year after the claim's commencement. This section is
available where the representative plaintiff has not yet filed its
motion record or no timetable has been agreed upon or ordered.
A party to the action must move for the relief, but section 29.1
confers a mandatory dismissal upon such a motion. The court has no
discretion in the matter. As Justice Belobaba remarked in Bourque,
this is to counter the tendency that "[c]lass actions typically
move at a glacial speed".3
The Court granted the defendants' motion for dismissal. In so
doing, it rejected a number of the plaintiff's arguments. First,
the Court found that a "liberal and purposive" reading of section
29.1 was to promote a timely litigation process, encouraging a
strict reading of the deadline. Second, the Court found that brief
period of suspended court services during the pandemic did not
affect the statutory deadlines, as there was ample opportunity for
the plaintiff to file its motion materials after reopening. The
Court further found that the temporary suspension of limitations
periods was irrelevant, given that section 29.1 came into force
after the resumption of limitations periods on September 14, 2020.
Finally, the Court rejected arguments by the plaintiffs that the
delay was occasioned by business or litigation strategy purposes to
"go slow" with the proceeding. In particular, the plaintiff had
launched a similar action against another group of defendants.
Counsels' decision to prioritize one action over the other for
"business reasons" did not justify non-compliance with section
29.1. In fact, the Ontario Legislature designed section 29.1 to
counter such an approach.
Notably, the Court remarked in obiter dicta that it was open to
plaintiff's counsel to refile an identical class proceeding with a
different representative plaintiff. Such an approach raises
questions for future cases regarding the ultimate efficacy of
section 29.1 as it is arguably an abuse of process to re-litigate
actions that are dismissed for delay.
Takeaways
The Court promoted a strict adherence to the new section of the
CPA:
The Court noted that the brief suspension of court services and
limitations periods during the pandemic had no bearing on this
statutory deadline.
The Court remarked that "the fact that the provincial government
lifted the suspension on September 14, 2020 suggests that after
that date, the pandemic was no longer regarded as a legitimate
justification for failing to meet legislatively imposed
deadlines".4
The Court also noted a proposed solution to the dismissal,
suggesting that class counsel could refile an identical action
against the defendants with a different proposed class
representative.5 Such an approach appears to obfuscate section
29.1's purpose and further waste judicial resources.
Footnotes
1 2022 ONSC 174 ("Bourque").
2 S.O. 1992, c. 6.
3 Bourque, at para 4.
4 Bourque, at para 18.
5 Bourque, at para 3.[GN]
JUUL LABS: Indian River Sues Over Deceptive E-Cigarette Youth Ads
-----------------------------------------------------------------
INDIAN RIVER 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-00834-WHO (N.D. Cal., February 9, 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.
Indian River School District is a school district with its offices
located on 31 Hosier Street, Selbyville, 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 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
LIVE NATION: Hundreds of Cases Over Music Festival Consolidated
---------------------------------------------------------------
click2houston.com reports that hundreds of lawsuits are now
combined into one massive case against Travis Scott and Live Nation
in connection with the Astroworld Festival which turned deadly last
year.
Billboard magazine reported the Texas Judicial Panel on
Multidistrict Litigation granted a motion from both victims and
organizers to combine the litigation before a single judge for all
pre-trial proceedings.
KPRC 2′s count of the lawsuits stood at more than 300 at the time
the consolidation maneuver was approved. Billboard reported the
lawsuits aim to represent nearly 2,800 alleged victims, which claim
that Live Nation, Travis Scott and other organizers were legally
negligent in how they planned and conducted the festival. Pages of
attorneys are listed in the filing, from Tony Buzbee to William
Adler, son of Jim "The Texas Hammer" Adler. The alleged victims are
seeking billions of dollars in damages.
Billboard noted "such 'multidistrict litigation' is standard
procedure in mass injury lawsuits, with the goal of avoiding the
inefficiency of individually trying many cases that share key
similarities. It will allow a single judge to coordinate the cases
to streamline complex pre-trial procedures like discovery - the
process of handing over evidence. It could also make it easier to
negotiate a single settlement to resolve all of the cases. The move
toward a single case was agreed upon by both sides. In requesting
to go that route, attorneys for both sides wrote that 'this type of
litigation is exactly what the Texas MDL process is designed to
address.'"
Scott, who has maintained a low profile since the deadly festival
fallout, said in December that the lawsuits should be dismissed and
issued a "general denial" of the allegations that he was
responsible for the deaths and injuries. [GN]
MDL 2445: Indivior's Bid to Disqualify Class Rep. Rochester Denied
------------------------------------------------------------------
In the case, IN RE SUBOXONE (BUPRENORPHINE HYDROCHLORIDE AND
NALOXONE) ANTITRUST LITIGATION THIS DOCUMENT RELATES TO: Wisconsin,
et al. v. Indivior Inc. et al., Case No. 16-cv-5073. STATE OF
WISCONSIN By Attorney General Brad D. Schimel, et al., Plaintiffs
v. INDIVIOR INC. f/k/a RECKITT BENCKISER PHARMACEUTICALS, INC., et
al., Defendants, MDL No. 2445, No. 13-MD-2445, Civ. A. No. 16-5073
(E.D. Pa.), Judge Mitchell S. Goldberg of the U.S. District Court
for the Eastern District of Pennsylvania denied the Defendant's
Renewed Motion to Disqualify Rochester.
I. Backgroud
Defendant Indivior manufactures Suboxone, a drug commonly used to
combat opioid addiction. Suboxone previously came in tablet form,
but in 2010, citing safety concerns, Defendant effectuated a change
in the administration of this drug, switching from tablet to
sublingual film. Various purchasers/consumers of Suboxone claimed
that this switch was anticompetitive and solely designed to
maintain the Defendant's market exclusivity -- a scheme known as a
"product hop." These claims have resulted in multi-district,
antitrust litigation before te Court, as well as the certification
of a class of direct purchaser Plaintiffs ("DPPs").
In September of 2020, the Defendant moved to disqualify named
Direct Purchaser Plaintiff Rochester Drug Co-Operative, Inc. in
light of its ongoing bankruptcy proceedings and proposed plan to
assign its antitrust claims against the Defendant. Judge Goldberg
denied that Motion, finding that "Rochester's established history
of prosecuting antitrust class actions, its strong interest in
pursuing the antitrust claims, the involvement of other class
representatives, and the relatively minimal conflict resulting from
Rochester's unsecured debt to Defendant weighed against
disqualification of Rochester as a class representative."
On April 16, 2021, the Defendant filed a Renewed Motion to
Disqualify Rochester, asserting that the bankruptcy court had
confirmed Rochester's Second Amended Chapter 11 Plan of
Liquidation, which resulted in Rochester liquidating its assets and
assigning its antitrust claims to a Liquidating Trust. Claiming
that Rochester no longer has standing and is no longer a real party
in interest, the Defendant renews its prior argument that Rochester
cannot serve as an adequate class representative.
II. Discussion
On Jan. 15, 2021, Rochester submitted its "Second Amended Chapter
11 Plan of Liquidation" to the bankruptcy court. The Plan called
for Rochester to transfer all of its assets to a new entity known
as the Liquidating Trust and to cease operations as of the
Effective Date. The plan was confirmed on Feb. 26, 2021, and
Rochester subsequently filed a "Notice of Effective Date of Chapter
11 Plan," fixing the Effective Date as March 19, 2021. On the
Effective Date, all of Rochester's assets, including its antitrust
claims in the present case, vested in a Liquidating Trust.
The Defendant renews its request to disqualify Rochester as a class
representative arguing that Rohester no longer has standing to
prosecute its claims, is no longer the real party in interest, and
is no longer an adequate representative. It contends that, under
the confirmed bankruptcy Plan, Rochester has expressly assigned its
claims to the Liquidating Trust. It posits that a debtor whose
claims vest to a bankruptcy trustee may not remain a named
plaintiff because the debtor has no standing to prosecute the
action. Moreover, having given up its right to prosecute the
antitrust claims, the Defendant presses that Rochester has nothing
to prosecute and is not the real party in interest.
The Defendant's briefing on this issue conflates standing, real
party in interest, and adequacy, using these words interchangeably
without acknowledging the distinctions between these separate
concepts or their impact on the matter before the Court.
A. Standing
Rochester's assignment of its antitrust claims to the Liquidating
Trust does not implicate Article III standing concerns. The
Defendant does not question that Rochester has standing by virtue
of (a) being a direct purchaser of Suboxone during the relevant
time period and (b) having allegedly suffered antitrust injury due
to Defendant's actions. It also does not challenge the validity of
the assignment of the antitrust claims from Rochester to the
Liquidating Trust. Finally, it is undisputed that, under the
assignment, Rochester continues in existence for purposes of
enforcing and prosecuting the antitrust claims, and that the
Liquidating Trust can act in Rochester's name if it deems it
beneficial. Accordingly, Judge Goldberg holds that the assignment
does not vitiate Article III standing.
B. Real Party in Interest
Second, the Defendant asserts that Rochester is not the real party
in interest because it has assigned all of its assets, including
"Antitrust Actions" to the Liquidating Trust.
Judge Goldberg finds that at the time litigation was commenced,
Rochester was unequivocally a real party in interest, as it was a
direct purchaser from the Defendant during the relevant time
period. Accordingly, Federal Rule of Civil Procedure 17 is not
implicated. During the pendency of the litigation, Rochester has
assigned its interest in the litigation to a Liquidation Trust, and
the cause of action itself survived that transfer. Under Federal
Rule of Civil Procedure 25(c), Rochester may therefore continue in
the action, even if it is no longer the real party in interest.
C. Adequacy
Having resolved the Defendant's invocation of standing and real
party in interest issues, the question remains whether a party who
has assigned away its claim can still serve as an adequate class
representative.
Judge Goldberg holds that many of the same reasons for which he
previously found Rochester to be an adequate representative
continue to exist notwithstanding the confirmation of the
Bankruptcy Plan. He says, the Defendant identifies no apparent or
imminent conflict caused by allowing the Liquidating Trustee to
proceed in Rochester's name. Moreover, Rochester, acting through
the Liquidating Trustee, retains a fiduciary duty to maximize the
value of the estate, which includes the class action against the
Defendant. Finally, Rochester is one of four separate class
representatives for the Direct Purchaser Class, and Rochester's
lawyers are one of three law firms designated as class counsel,
meaning that Rochester, acting through the Liquidating Trustee,
will not have full control over the class action.
In short, Judge Goldberg finds no reason to disqualify Rochester as
a class representative.
III. Order
Judge Goldberg denied the Defendant's Renewed Motion. An
appropriate Order follows.
A full-text copy of the Court's Feb. 2, 2022 Memorandum is
available at https://tinyurl.com/56t7hx3r from Leagle.com.
MDL 3022: Panel Denies Centralization of Four Cases in Maryland
----------------------------------------------------------------
In In re: Harvest Entities Fair Labor Standards Act (FLSA) and Wage
and Hour Litigation, MDL No. 3022, Judge Karen K. Caldwell,
Chairperson of the U.S. Judicial Panel on Multidistrict Litigation,
denied centralization of litigation consisting of four actions
pending in four districts. Plaintiffs in all actions opposed
centralization and, in the alternative, proposed the District of
Maryland as the transferee district.
The litigation concerns alleged federal and state labor law
violations at 29 restaurants in the International House of Pancakes
(IHOP) franchise owned and operated by Harvest Hospitalities and
its affiliates. The restaurants at issue are located in
Pennsylvania, Maryland, New Jersey, and Virginia.
The Panel concluded that centralization is not necessary for the
convenience of the parties and witnesses or to further the just and
efficient conduct of the litigation. The actions undoubtedly share
factual questions arising from allegations that defendants modify
the time records of hourly employees to reduce their number of
hours worked and compensation, and that the alleged time-shaving
policies and practices stem from directives issued by upper
management at Harvest Hospitalities. But since only a few actions
are involved, the panel held that the moving defendants have failed
to demonstrate that centralization is appropriate and that informal
coordination is a practicable and preferable alternative to
centralization. Plaintiffs in all actions share the same lead
counsel, and defendants are represented by three firms already
coordinating with one another. Moreover, plaintiffs' counsel
represent that they are willing to work cooperatively with
defendants to avoid duplicative discovery. Given the few involved
counsel and limited number of actions, informal coordination of
discovery and pretrial motions appears to be practicable, the Panel
added. The disparities in the actions' progress and class
allegations further indicate that informal coordination of this
litigation is preferable to centralization.
A full-text copy of the Court's February 1, 2022 Order is available
at https://bit.ly/3rOsMYy
MDL 3023: Six Cases Consolidated in Eye Injury Products Litigation
-------------------------------------------------------------------
In the Taxotere (Docetaxel) Eye Injury Products Liability
Litigation, MDL No. 3023, Judge Karen K. Caldwell, Chairperson of
the U.S. Judicial Panel on Multidistrict Litigation transfers two
cases each from the U.S. District Court for the Central District of
California and the U.S. District Court for the Northern District of
California; and one case each from the U.S. District Court for the
District of Arizona and the U.S. District Court for the Eastern
District of California, to the U.S. District Court for the Eastern
District of Louisiana and, with the consent of that court, assigned
it to Judge Triche Milazzo for coordinated or consolidated pretrial
proceedings.
These actions share factual questions arising from allegations that
the chemotherapy drug Taxotere (docetaxel) can cause users to
suffer permanent eye damage, and that defendants failed to warn
patients. Plaintiffs in these actions each allege that they
developed excessive tearing (epiphora) as a result of permanent
injuries to their tear ducts after chemotherapy treatment with
Taxotere. All actions will require discovery regarding Taxotere's
development, marketing, and sale, its alleged propensity to cause
eye injury; defendants' knowledge of the risk of eye damage posed
by the drug; and the adequacy of Taxotere's warning label as to
that risk.
The panel held that centralization in the Eastern District of
Louisiana will serve the convenience of the parties and witnesses
and promote the just and efficient conduct of this litigation, will
eliminate duplicative discovery; prevent inconsistent pretrial
rulings; and conserve the resources of the parties, their counsel,
and the judiciary.
A full-text copy of the Court's February 1, 2022 Transfer Order is
available at https://bit.ly/366sBiR
MIDLAND FUNDING: Denial of Arbitration in Briesmeister Suit Flipped
-------------------------------------------------------------------
In the case, MIDLAND FUNDING, LLC; AND MIDLAND CREDIT MANAGEMENT,
INC, Appellants v. JENNIFER BRIESMEISTER, ON BEHALF OF HERSELF AND
ALL OTHERS SIMILARLY SITUATED, Appellees, Case No. CV-20-671 (Ark.
App.), the Court of Appeals of Arkansas, Division III, reversed the
Independence County Circuit Court's order denying the Appellants'
motion to compel arbitration and strike class allegations in favor
of the Appellee Briesmeister, on behalf of herself and all others
similarly situated.
I. Background
In December 2015, Briesmeister opened an Amazon-branded credit card
issued by Synchrony. She made purchases on the credit card, and the
last payment she made on the account was on May 18, 2018, leaving a
balance of $1,108.61. Synchrony charged off the account on Sept.
25, 2018, and subsequently sold the account to Midland Funding on
Oct. 20, 2018.
After the account was sold, Midland Funding filed a complaint
against Briesmeister in Independence County District Court on Jan.
27, 2020, requesting a judgment for the past unpaid balance,
interest, and costs. A summons was subsequently served on
Briesmeister on Feb. 4, 2020, informing her that she had thirty
days after service of the summons to file a written answer to the
complaint.
On March 23, 2020, Briesmeister filed her complaint against the
Appellants in the Circuit Court of Independence County. She claimed
that the Appellants' actions violated the Arkansas Fair Debt
Collection Practices Act (AFDCPA). Specifically, Briesmeister
alleged that she would have been in default in the lawsuit filed by
Midland Funding prior to the "reply by" date in Midland Credit's
letter. Briesmeister claimed that these actions violated the AFDCPA
and filed her complaint on behalf of herself and on behalf of a
class of individuals similarly situated.
Thereafter, the Appellants moved to compel arbitration and strike
class allegations under the terms of the credit-card agreement
between Synchrony and Briesmeister as quoted. They argued that "as
servicer for Synchrony's assignee and current owner of Synchrony's
defaulted Synchrony account, they are entitled to enforce
Briesmeister's agreement to arbitrate her claims against the
Appellants on an individual (as opposed to class-wide) basis." They
further argued that "because Briesmeister's claims are premised
upon the Appellants' alleged conduct in attempting to collect her
defaulted Synchrony account, those claims necessarily relate to her
Synchrony account and are precisely the type of claims encompassed
by the arbitration provision and class-action waiver included in
the applicable agreement."
Ms. Briesmeister filed her response to the motion to compel
arbitration and strike class allegations on June 11, 2020. She
argued that the Appellants were not covered by the arbitration
clause because the Synchrony card agreement defined "we," "us," and
"our" as Synchrony Bank -- not Midland Funding or Midland Credit.
Alternatively, Briesmeister argued that because Midland Funding had
previously filed a lawsuit to collect the debt in the Independence
County District Court, the Appellants had waived any otherwise
applicable arbitration clauses with respect to improper behavior.
The Appellants filed their reply on June 17, 2020, essentially
arguing that Briesmeister was mistaken because Synchrony's
assignment allowed the Appellants to "Step into its Shoes" as the
original creditor. They further argued that as the assignee to the
original creditor, the Appellants could enforce the arbitration
clause as written. Finally, they argued that Briesmeister's
contention that the Appellants waived their right to compel
arbitration was without merit.
A hearing was held on the motion to compel arbitration on Aug. 18,
2020, and the counsel for the parties orally argued their
respective positions as already set out. The circuit court
thereafter entered an order denying the Appellants' motion to
compel arbitration and strike class allegations on Sept. 22, 2020.
In that order, the circuit court made the following pertinent
findings:
10. Based on the parties' briefs, the evidence presented with
the briefs and filed under seal, and the arguments made by the
parties at the hearing, the Court makes the following findings of
facts and conclusions of law.
11. There is a binding contract between the Plaintiff and
Synchrony Bank to compel arbitration and prevent class action
status between the Plaintiff and Synchrony Bank.
12. The assignment of the Plaintiff's account to Defendant
Midland Funding LLC does not, however, revise the contract nor
expand the scope of the contract, to also bind the Plaintiff to
arbitration and prevent class action status regarding the alleged
violations of the AFDCPA [Arkansas Fair Debt Collection Practices
Act] which is the matter in controversy in the lawsuit.
13. In summary, there is no binding arbitration agreement
between the parties as to the lawsuit regarding the Defendants'
alleged violations of the AFDCPA and there is no binding agreement
barring class action status between the parties to the suit
regarding the Defendant's alleged violations of the AFDCPA.
14. Based on the foregoing, the Court finds the Defendants'
Motion to Compel Arbitration and Strike Class Allegations should be
and hereby is denied.
The interlocutory appeal followed.
II. Discussion
A. Whether Midland Can Enforce the Arbitration Provision in the
Synchrony Credit-Card Agreement
The Appellants argue on appeal that the circuit erred in denying
their motion to compel arbitration. Briesmeister does not dispute
that there is an enforceable arbitration agreement between her and
Synchrony or that the credit card agreement is itself assignable.
The gist of Briesmeister's claims is twofold: (1) Because the
arbitration provision is limited to "us," "we," and "ours," those
are words of limitation and inure only to the benefit of Synchrony
and cannot be assigned to Midland Funding; (2) Assuming arguendo
that the arbitration provision was assigned to Midland Funding, the
scope of the arbitration provision does not extend to independent
postassignment acts of Midland during the collection process.
In reviewing the Synchrony credit-card agreement and the
bill-of-sale documents between Synchrony and Midland Funding, and
applying Utah law, the Court of Appeals holds that the language is
clear and unambiguous when read as a whole and that Midland Funding
steps into the shoes of Synchrony in this arbitration-provision
assignment. Further, even if it were to hold that the pertinent
language is ambiguous, Utah law requires it to interpret any
ambiguities in favor of arbitration. And finally, the Court of
Appeals disagrees with Briesmeister's argument that such an
interpretation revises or expands the arbitration provision. Based
on the record presented, it holds that the arbitration provision
was assigned to Midland, that Midland stands in the shoes of
Synchrony, and Midland may enforce the arbitration provision if the
claim made by Briesmeister falls within the scope of the
arbitration provision.
That leads the Court of Appeals to the second prong of the
Appellee's argument, and that is that the independent
postassignment conduct of Midland is not within the scope of the
Synchrony arbitration provision. Specifically, Briesmeister argues
that the letter written by Midland Credit occurred after the
Synchrony assignment; therefore, Midland's conduct that allegedly
violated the AFDCPA is not subject to the Synchrony arbitration
provision.
The Court of Appeals opines that the arbitration provision defines
"claim" as "any dispute or claim between you or any other user of
your account, and us, our affiliates, agents and/or Amazon.com if
it relates to your account." It finds the authority persuasive and
holds that Briesmeister's claim that Midland allegedly violated the
AFDCPA is inextricably tied with the credit-card account and
collection because Briesmeister's dispute centers on the remaining
debt Midland Funding was attempting to collect under the terms of
the credit-card agreement. As such, the Court of Appeals holds that
Briesmeister's claim that Midland allegedly violated the AFDCPA is
a claim that relates to her account with Synchrony and falls within
the scope of the broadly crafted arbitration provision in the
credit-card agreement, and the circuit court erred in finding
otherwise.
B. Appellee's Public-Policy and Waiver Arguments
Ms. Briesmeister urges the Court of Appeals in her responsive brief
on appeal to affirm the circuit court's decision under its de novo
review as a matter of public policy and because appellants had
waived any right to compel arbitration after it had previously
filed a separate collection suit in district court.
The Court of Appeals disagrees and summarily dispose of
Briesmeister's argument that enforcing the arbitration provision is
against public policy. It turn to whether the Appellants waived
their right to arbitrate the claims that it violated the AFDCPA
because it previously filed a collection suit in the district
court, the Court of Appeals opines that Midland's filing a previous
collection lawsuit in district court does not violate any
contractual rights of the parties as set forth in the agreements;
therefore, the prior collection action filed by Midland Funding in
the district court did not act as a waiver of the arbitration
provision.
C. Motion to Strike Class Action Allegations
The Appellants pled and argued that the class action waiver in the
arbitration provision should be enforced as written because it is
clear and unambiguous and not contrary to public policy. The
circuit court ruled to the contrary finding that "there is no
binding agreement barring class action status between the parties
to this suit regarding Defendants alleged violations of the
AFDCPA." In the Appellants' notice of appeal, they state that they
are appealing from the order denying the Defendants' motion to
compel arbitration and strike class allegations and all findings
related thereto.
Arkansas Rule of Appellate Procedure-Civil 2(a) provides for the
Court of Appeals' jurisdiction over interlocutory appeals only in
specific circumstances. The denial of a motion to strike class
allegations is not one of those circumstances; nor does appellant
cite any provision other than subsection (a)(12) of Rule 2. The
appeal is permitted on an interlocutory basis only to address
issues related to the denial of a motion to compel arbitration
pursuant to Arkansas Rule of Appellate Procedure-Civil 2(a)(12).
Therefore, to the extent the Appellants are making any arguments
regarding the circuit court's denial of their motion to strike
class allegations, they do not fall within the purview of this type
of interlocutory appeal and are beyond the scope of this limited
appeal. As such, the Court of Appeals only address issues related
to the denial of a motion to compel arbitration in its Opinion.
III. Conclusion
In conclusion, for the reasons it stated, the Court of Appeals
holds that the circuit court erred in denying the Appellants'
motion to compel arbitration. Therefore, it reversed and remanded.
A full-text copy of the Court's Feb. 2, 2022 Opinion & Order is
available at https://tinyurl.com/mtyc5zct from Leagle.com.
Quattlebaum, Grooms & Tull PLLC by: Michael N. Shannon and Sarah
Keith-Bolden -- sbolden@qgtlaw.com -- for the Appellants.
Corey D. McGaha PLLC by: Corey D. McGaha -- cmcgaha@mcgahalaw.com;
and Edelman, Combs, Latturner & Goodwin LLC by: Daniel A. Edelman,
pro hac vice; and Cathleen Combs, pro hac vice, for the Appellee.
MITSUBISHI MOTORS: Vehicles Contain Defective Hoods, Rezendes Says
------------------------------------------------------------------
Jesse Rezendes, on behalf of himself and all others similarly
situated v. Mitsubishi Motors North America, Inc., Case No.
1:22-cv-10211-AK (D. Mass., Feb. 9, 2022) is a lawsuit on behalf of
himself and a proposed class of past and present owners and lessees
of defective 2022 Mitsubishi Outlander vehicles marketed,
distributed, sold, warranted, and serviced by Mitsubishi Motors .
The Plaintiff and the Class were damaged because the Class Vehicles
contain defective hoods that flutter and bounce when driving.
The Plaintiff contends that Mitsubishi knew that the Class Vehicles
contain one or more design and/or manufacturing defects that can
cause the hoods to flutter and bounce when driving (the "Hood
Defect").
In March 2021, almost immediately after Mitsubishi began selling
the Class Vehicles and before Plaintiff purchased his vehicle,
Mitsubishi had already performed an investigation into the Hood
Defect and notified its dealerships, but not Class Vehicle owners,
that "a hood flutter may occur on 2022 Outlanders."
Class Vehicle owners report that their hoods flutter when driving
at various speeds, in windy conditions, or when driving over bumps,
and reported this defect to the National Highway Traffic Safety
Administration ("NHTSA") as early as July 2021.
Further, the alleged Hood Defect can and often does manifest
immediately, or soon after Class Members take ownership of the
vehicles. For instance, the Plaintiff began experiencing the defect
within weeks of purchasing his new vehicle. Other owners likewise
complained new that they experienced the Hood Defect since
purchasing their vehicles.
The Defendant has admitted the existence of a defect as soon as
Class Vehicles went on sale and issued Technical Service Bulletins
in an attempt to correct the Defect by adjusting the hood latch and
bumper stops and later replacing weather stripping around the
hoods. However, such interim measures have failed to remedy the
Defect in the Plaintiff's car and in other Class Members' cars who
continue to experience the defect following these inadequate repair
attempts.
Mitsubishi knew of and concealed the Hood Defect that is contained
in every Class Vehicle, along with the attendant safety problems,
from Plaintiff and the other Class Members both at the time of sale
and repair, and thereafter, the Plaintiff adds.
As a result of their reliance on Defendant's omissions and/or
misrepresentations, owners and/or lessees of the Class Vehicles
have suffered ascertainable loss of money, property, and/or loss in
value of their Class Vehicles.
The Plaintiff has given Mitsubishi a reasonable opportunity to cure
the Hood Defect, but Mitsubishi has been unable to do so within a
reasonable time.
To remedy Mitsubishi's alleged unlawful conduct, Plaintiff, on
behalf of the proposed class members, seeks damages and restitution
from Mitsubishi, as well as notification to class members about the
defect.
Mitsubishi Motors North America, Inc. through its various entities,
designs, manufactures, markets, distributes, services, repairs,
sells, and leases passenger vehicles, including the Class Vehicles,
nationwide.
Mitsubishi Motors North America, Inc., is the warrantor and
distributor of the Class Vehicles in the United States.[BN]
The Plaintiff is represented by:
Sergei Lemberg, Esq.
LEMBERG LAW, L.L.C.
43 Danbury Road
Wilton, CT 06897
Telephone: (203) 653-2250
Facsimile: (203) 653-3424
MONDELEZ INTERNATIONAL: Lee Sues Over Mislabeled Dark Chocolate
---------------------------------------------------------------
C.K. LEE, on behalf of himself and others similarly situated v.
MONDELEZ INTERNATIONAL, INC. and MONDELEZ GLOBAL, LLC, Case No.
1:22-cv-01127 (S.D.N.Y., Feb. 9, 2022) is a consumer protection
action seeking redress for, and a stop to, the Defendants' unfair
and deceptive practice of advertising and marketing its Green &
Black's Organic Dark Chocolate products and its Green & Black's
Pure Dark Chocolate products ("the Products").
According to the complaint, different variants of the Products
advertise different levels of cacao content on their front labels,
including 60%, 70% and 85%. However, the back labels uniformly
reveal that the principal chocolate ingredient is not cacao but
cocoa, which is an inferior, highly processed derivative of the
cacao bean that has been stripped of the nutritional qualities that
make dark chocolate appealing to its consumers.
The Plaintiff and Class members viewed the Defendants' misleading
label, and reasonably relied in substantial part on the
representation that they contain cacao when deciding to purchase
the Products. The Plaintiff and Class members were thereby deceived
into purchasing an inferior product at a price they would not have
been prepared to pay had they known the truth, says the suit.
The Defendants' labeling of the Products allegedly violates the
consumer protection laws of New York state as well as those of the
other 49 states and the District of Columbia.
The Defendant specializes in the manufacturing of candy and
chocolate.[BN]
The Plaintiff is represented by:
Rony Guldmann, Esq.
LEE LITIGATION GROUP, PLLC
148 West 24 th Street, Eighth Floor
New York, NY 10011
Telephone: (212) 661-0052
Facsimile: (212) 465-1181
NATIONAL FOOTBALL: Broncos Named Defendant in Discrimination Suit
-----------------------------------------------------------------
Shelby Manning, writing for Fansided, reports that the Denver
Broncos were named in a lawsuit against the league by coach Brian
Flores. Let's break down the allegations.
The Denver Broncos certainly are not off on the right foot in new
head coach Nathaniel Hackett's first full week with the team. In
his first week on the job, the team must deal with the franchise
being named in the lawsuit against the league by coach Brian
Flores, who appears to have been overlooked in this coaching cycle
prior to filing the suit.
According to ESPN, Flores, who was surprisingly fired by the Miami
Dolphins at the conclusion of the 2021 NFL season, filed a
class-action lawsuit against the NFL and three franchises–The New
York Giants, Miami Dolphins and Denver Broncos.
Flores alleges malpractice by the Miami Dolphins, specifically,
that owner Stephen Ross wanted Flores to intentionally lose games
in order to secure a better draft position, amongst other related
issues brought to light by Flores.
As for the Giants and Broncos, their involvement in the lawsuit
surrounds the implemented Rooney Rule, an NFL practice put into
place to give minority chances a better opportunity at a head
coaching or general manager position. As of right now, the only
active African American head coach in the NFL is Pittsburgh
Steelers head coach Mike Tomlin.
Flores alleges that both the New York Giants and Denver Broncos
simply used Flores to "check their boxes" of the requirement of
interviewing a minority candidate in their interviewing process.
Upon the firing of Vic Fangio, much of Broncos Country felt that
Brian Flores would be worth interviewing once more. His sudden
termination in Miami was shocking to the football world, especially
considering the positive relationships he was known to have with
his players, and what he had accomplished in his time with Miami,
with an above .500 record in two out of three seasons with the
team.
Considering the competitive nature of the current AFC East and the
Miami Dolphins' roster, Brian Flores really enjoyed significant
success with the team.
When it comes to the Broncos, Flores cites the manner of the
interview serves as grounds for the belief that he was only brought
in to satisfy the Rooney Rule. According to Flores, Broncos
executives (notably John Elway) arrived to the scheduled interview
an hour late and believed them to be hungover.
John Elway was quick to address these allegations on social media,
as were the Denver Broncos.
"I took Coach Flores very seriously as a candidate for our head
coaching position in 2019 and enjoyed our three-and-a-half hour
interview with him. Along with the rest of our group, I was
prepared, ready and fully engaged during the entire interview as
Brian shared his experience and vision for our team. It's
unfortunate and shocking to learn for first time that Brian felt
differently about our interview with him.
- John Elway
(per Bleacher Report).
In their own statement, the team makes reference to their detailed
notes and logs about the interview. Certainly, this is mentioned to
conflict with Flores' allegations that the Broncos were not serious
about the interview.
So, what does being named in this lawsuit mean for the Denver
Broncos? Two of the biggest faces mentioned in the lawsuit are
former GM John Elway and President Joe Ellis. Of course, Elway
stepped away from his role as GM prior to the 2021 season,
assisting in the selection of George Paton to take his place.
While Elway is still President of Football Operations, he has been
in a transition away from the team. Joe Ellis is also likely on his
way out, upon expressing in 2021 that he did not intend to renew
his contract once it expired in 2022.
Though Elway is transitioning out of his employment with the Denver
Broncos, he is expected to be heavily involved in the bid of the
sale of the Broncos. Prior to the lawsuit, Elway's group was
considered an early favorite by many. Certainly, Elway's plans to
make a bid on the team could be in jeopardy.
Brian Flores' lawsuit is already making waves, with Roger Goodell
issuing a statement from the league addressing racial inequity in
the NFL, deeming current practices ‘unacceptable'.
There could be many implications depending on the outcome of this
lawsuit. The league could see a modification of the current Rooney
Rule, and the Denver Broncos could be one of the teams that find
themselves suffering consequences, though what those could look
like is still unknown.
If the suit is unable to produce sufficient evidence, it could even
be dismissed. However, one of the most prominent implications of
this lawsuit for the Denver Broncos at this point is their
ownership. If Flores' statement is able to be confirmed, John
Elway's chance at ownership would be slim to none.
Of course, this lawsuit could be a lengthy court process, so this
certainly will be a story to keep an eye on. [GN]
NATIONAL FOOTBALL: Commissioner Issues Memo Following Class Action
------------------------------------------------------------------
Arnie Stapleton, writing for Associated Press, reports that NFL
Commissioner Roger Goodell told teams on Feb. 5 that the league
will look to bolster policies meant to encourage hiring of
minorities, particularly as head coaches, and he pledged an
investigation into tanking allegations raised by Brian Flores in
his discrimination lawsuit against the NFL.
"We will reevaluate and examine all policies, guidelines and
initiatives relating to diversity, equity and inclusion, including
as they relate to gender," Goodell wrote in a memo to the league's
32 clubs that was obtained by the Associated Press.
The commissioner added that the league's record on hiring minority
coaches has been "unacceptable."
The memo came five days after Flores sued the league and three
teams over alleged racist hiring practices for coaches and general
managers, saying the league remains "rife with racism" even as it
publicly condemns it.
The NFL's main avenue for increasing diversity in its leadership
ranks is the two-decade-old Rooney Rule, which requires teams to
interview minority candidates for jobs including head coach and
general manager. Despite the rule, there is currently one Black
head coach in the league: Pittsburgh's Mike Tomlin. There are no
Black team owners, just a handful of Black general managers and
relatively few Black coordinators in a league where more than 70%
of players are Black or another ethnic minority.
Goodell said the league will include outside experts in its review
along with "current and former players and coaches, advocates and
other authorities in this area. Our goal is simple: make our
efforts and those of the clubs more effective so that real and
tangible results will be achieved."
In a statement, Flores' attorneys said while Goodell's memo appears
to be a positive first step in confronting systemic racism in the
league, they "suspect that is it more of a public relations ploy
than real commitment to change."
Flores, who is Black, was fired as Miami's coach last month despite
back-to-back winning seasons. He named the league and three teams
-- the Dolphins, Denver Broncos and New York Giants -- in a
class-action lawsuit alleging unfair hiring practices in the NFL.
After the lawsuit was filed, the league said it would defend itself
against claims it said were "without merit." The Dolphins, Broncos
and Giants also denied Flores' allegations.
Goodell took a softer approach to Flores' claims in his memo.
"We understand the concerns expressed by Coach Flores and others.
While the legal process moves forward, we will not wait to reassess
and modify our strategies to ensure that they are consistent with
our values and longstanding commitment to diversity, equity and
inclusion," the commissioner wrote.
Flores' most serious allegation is his claim that Dolphins owner
Stephen Ross told him he would pay him $100,000 for every loss
during the coach's first season because the owner wanted the club
to "tank" so it could get the top draft pick. The Dolphins went
5-11 that year; the Cincinnati Bengals went 2-14 and used the No. 1
pick on quarterback Joe Burrow, who led the team to this season's
Super Bowl.
"We also take seriously any issue relating to the integrity of NFL
games," Goodell's letter said. "These matters will be reviewed
thoroughly and independently. We expect that these independent
experts will receive full cooperation from everyone associated with
the league or any member club as this work proceeds."
Ross pledged his team's full cooperation into an investigation on
Feb. 3 when he labeled Flores' accusations "false, malicious and
defamatory."
Flores also contended that the Broncos and Giants conducted sham
interviews, Denver's in 2019 and New York's during the current
hiring cycle. Critics of the Rooney Rule have long contended that
many teams complied with the rule by interviewing minority
candidates they had no intention of hiring.
"There's a lot of work to do. I wish there was a quick fix. I wish
there was a silver bullet for some of these things," Jacksonville
Jaguars owner Shad Khan, who is Pakistani American, said on Feb. 5.
"But I think it says as much about America, frankly, as it does
anything else."
The Jaguars had two interviews with Tampa Bay offensive coordinator
Byron Leftwich, who is Black, for their head coaching job, but
talks with him broke down and Jacksonville hired Doug Pederson, the
fifth white coach Khan has hired in as many opportunities as owner
of the Jaguars.
Lawyers Douglas H. Wigdor and John Elefterakis, who represent
Flores, said they were skeptical that Goodell's memo would lead to
meaningful changes and called on a court or government agency to
appoint a federal monitor to oversee the league.
"For too many years, the NFL has hidden behind the cover of
foundations that were supposed to protect the rights of Black
players and coaches, all while letting systemic racial bias fester
in its front offices," the attorneys said in their statement. "The
NFL is now rolling out the same playbook yet again and that is
precisely why this lawsuit was filed." [GN]
NATIONAL FOOTBALL: Congressman Calls for Hearing Following Suit
---------------------------------------------------------------
WCVB5 reports that a Massachusetts congressman is calling for
congressional hearings into allegations of racial discrimination
within the National Football League's hiring practices.
Rep. Jim McGovern, of the 2nd District, stated his desire for those
hearings during an appearance on WCVB's "On the Record" after he
asked about a lawsuit filed against the NFL by Brian Flores, a
former New England Patriots assistant coach. Flores, most recently
the head coach of the Miami Dolphins, announced his class-action
lawsuit on Feb. 1 with legal representation from New York-based
Wigdor Law.
According to Flores, Patriots head coach Bill Belichick mistakenly
sent him a congratulatory text message for landing the head
coaching job with the New York Giants. Belichick's faux pas came
three days before Flores' scheduled interview with the Giants and,
afterward, New York hired Brian Daboll -- another former New
England assistant.
"In a humiliating act of alleged racism, Mr. Flores was forced to
sit for an extensive interview, knowing that the Giants had already
chosen Brian Daboll, a white man, for the job," Widgor Law wrote in
a statement. "Mr. Flores now brings this class action to effectuate
real change for the future."
Under the Rooney Rule, NFL teams are required to interview minority
candidates in connection with many open jobs, including for head
coach. Flores claims that the Rooney Rule is not working because
management is not doing the interviews in good faith, creating a
stigma that interviews of Black candidates are only being done to
comply with the rule.
"First of all, I want to commend Brian Flores for his courage in
coming forward. He may very well be jeopardizing his future
career," McGovern said during his OTR appearance. "I think he
reached a point where he felt there was no other alternative than
to speak out."
In a response to Flores' lawsuit on Feb. 1, the NFL said the league
and its clubs are deeply committed to ensuring equitable employment
practices, and is continuing to make progress in providing
equitable opportunities throughout its organizations.
"Diversity is core to everything we do, and there are few issues on
which our clubs and our internal leadership team spend more time.
We will defend against these claims, which are without merit," the
NFL wrote in its statement.
On Feb. 3, the New York Giants stated that Flores' allegations are
"disturbing and simply false," and that Belichick's text messages
to Flores also preceded the team's interview with Daboll.
"Let's be honest here, we have a problem in this country with
systemic racism. It's in our politics, our courts, our policing,
our business community and it's in professional sports," McGovern
said on OTR. "And I think the NFL, quite frankly, rather than
immediately circling the wagons and saying 'Everything's perfect
here,' should have at least acknowledged the concerns of Brian
Flores."
On Feb. 5, NFL Commissioner Roger Goodell told teams in a memo that
the league will look to meant to encourage the hiring of
minorities, particularly as head coaches.
"We will reevaluate and examine all policies, guidelines and
initiatives relating to diversity, equity and inclusion, including
as they relate to gender," Goodell wrote in the memo.
Goodell added that the league's record on hiring minority coaches
has been "unacceptable."
Below is a statement from Widgor Law in response to Goodell's memo
concerning diversity and inclusion: "Unfortunately, immediately
after Coach Flores filed the class-action lawsuit, the NFL and
various teams reflexively, and without any investigation, denied
the detailed allegations set forth in the 60-page complaint. As a
result, when we spoke to the national media the following day, we
made clear that the NFL should view this class-action lawsuit as an
opportunity to engage in real change and confront the obvious
reality.
"The statement made by the commissioner is, on the surface, a
positive first step, but we suspect that this is more of a public
relations ploy than real commitment to change. For too many years,
the NFL has hid behind the cover of foundations that were supposed
to protect the rights of Black players and coaches, all while
letting systemic racial bias fester in its front offices. The NFL
is now rolling out the same playbook yet again and that is
precisely why this lawsuit was filed.
"We would be pleased to talk to the commissioner about real change,
but unfortunately he has not reached out to us to engage in such a
discussion. In fact, nobody from the NFL has reached out to us.
Absent such a discussion, followed by unbiased and concrete change,
we believe that a court or governmental agency must order a federal
monitor to oversee the NFL, as the NFL cannot continue to police
itself." [GN]
NATIONAL FOOTBALL: Faces Suit Over Alleged Online Sales Conspiracy
------------------------------------------------------------------
Dean Santos, Lesia Dunn, and Kimberly Ann Marckmann, individually
and on behalf of all others similarly situated v. National Football
League, Inc., et al., Case No. 3:22-cv-00855 (N.D. Cal., Feb. 9,
2022) is a class action complaint against the Defendants to recover
treble damages and the costs of this suit, including reasonable
attorneys' fees, as well as for injunctive relief, pursuant to the
Sherman Act and the Clayton Act, resulting from Defendants'
conspiracy to dominate the retail market for online sales of NFL
Licensed Products.
According to the complaint, NFL is big business -- in 2020 alone,
the 32 teams that make up the NFL made approximately $12.2 billion
collectively, a low figure compared to recent years due to the
impact of the coronavirus pandemic on ticket sales. The NFL derives
this revenue from various sources, including ticket sales, media
deals, concessions, and importantly for this case, merchandise
sales.
Each of the 32 Teams sells merchandise emblazoned with their team's
intellectual property, such as their names and logos ("NFL Licensed
Products"). For example, the Dallas Cowboys have the blue star, and
the Las Vegas Raiders have the helmeted pirate.
In a competitive market, each Team would compete to sell NFL
Licensed Products to the greatest number of fans -- not only to
realize profit but as a self-serving marketing tool; fans wearing
NFL License Products are walking billboards. Instead, all the Teams
pool their intellectual property with the National Football League
Properties, Inc. ("NFLP"), a subsidiary of the NFL that is
responsible for collectively licensing the Teams' and the NFL's
intellectual property. The NFLP accordingly operates as a walking
horizontal conspiracy among competitors formed for the very purpose
of organizing group-wide agreements between Teams that otherwise
would compete among themselves to license their trademarks to
competing manufacturers and retailers. One such manufacturing and
retailer is Fanatics, Inc. This "full-scale global digital sports
platform" began in earnest in 2011, when Michael Rubin -- Fanatics'
CEO -- decided to focus his efforts on sports e-commerce business.
In 2017, the NFL purchased a three percent stake in Fanatics for
$95 million. This meant that as Fanatics' value increased, so too
did the NFL's investment. For their mutual benefit, Defendants --
the NFL and its affiliates, each of the 32 Teams that participate
in the NFL, and Fanatics, Inc. -- conspired to dominate the retail
market for online sales of NFL Licensed Products. The Defendants'
alleged conspiracy consists of at least four related components:
First, Defendants colluded to boycott competing retailers who sold
NFL Licensed Products through third-party online marketplaces
("TPOMs") like the Amazon Marketplace.
Second, having greatly reduced the number of retailers in online
marketplaces, the Defendants conspired to fill the void by entering
exclusive dealing arrangements that denied their competitors access
to manufacturers and suppliers.
Third, having solidified their dominant position in the online
retail market for NFL Licensed Products, the Defendants, rather
than compete with one another, entered anticompetitive licensing
agreements to further reduce competition.
The conspiracy as a whole, and each individual part, have allowed
the Defendants to charge supracompetitive prices for NFL Licensed
Products and share the monopoly profits among themselves. As NBA
Commissioner Adam Silver puts it, Rubin "owns this marketplace in
the sports industry." Because of this conspiracy, the Plaintiffs
and the proposed class of direct online purchasers of NFL Licensed
Products paid more than they otherwise would have for their
purchases, added the suit.
The Defendants include National FootballLeague Properties, Inc.,
NFL Enterprises, LLC, Arizona Cardinals Football Club LLC, Atlanta
Falcons Football Club, LLC, Baltimore Ravens Limited Partnership,
Buccaneers Team LLC, Buffalo Bills LLC, Carolina Panthers, LLC, The
Chicago Bears Football Club, Inc., Chargers Football Company, LLC,
Cincinnati Bengals, Inc., Cleveland Browns Football Company, LLC,
Dallas Cowboys Football Club, Ltd., Detroit Lions Inc., Football
Northwest LLC, Green Bay Packers, Inc., Houston NFL Holdings, L.P.,
Indianapolis Colts, Inc., Jacksonville Jaguars LLC, Kansas City
Chiefs Football Club, Inc., Las Vegas Raiders Football LLC, Miami
Dolphins Ltd., Minnesota Vikings Football LLC, New England Patriots
LLC, New Orleans Louisiana Saints, LLC, New York Football Giants
Inc., New York Jets Football Club, Inc. PDB Sports, Ltd. d/b/a
Denver Broncos Football Club, The Philadelphia Eagles Football Club
Inc., Pittsburgh Steelers Sports Inc., The Rams Football Company
LLC, San Francisco Forty Niners II, LLC, Tennessee Football, Inc.,
Washington Football, Inc., and Fanatics, Inc.[BN]
The Plaintiffs are represented by:
Dena C. Sharp, Esq.
Adam E. Polk, Esq.
Kyle P. Quackenbush, Esq.
GIRARD SHARP LLP
601 California Street, Suite 1400
San Francisco, CA 94108
Telephone: (415) 981-4800
E-mail: dsharp@girardsharp.com
apolk@girardsharp.com
kquackenbush@girardsharp.com
- and -
Andrew M. Purdy, Esq.
PURDY LEGAL
15615 Alton Parkway
Telephone: (949) 570-5500
Facsimile: (949) 298-7234
E-mail: amp@purdylegal.com
amp@purdylegal.com
- and -
Christopher J. Cormier, Esq.
Spencer Cox, Esq.
Warren T. Burns, Esq.
Patrick Murphree, Esq.
BURNS CHAREST LLP
Spencer Cox (Pro Hac Vice to be Filed)
4725 Wisconsin Avenue, NW, Suite 200
Washington, DC 20016
Telephone: (202) 577-3977
Facsimile: (469) 444-5002
E-mail: ccormier@burnscharest.com
scox@burnscharest.com
wburns@burnscharest.com
pmurphree@burnscharest.com
NATIONAL FOOTBALL: Flores' Legal Team Responds to Diversity Memo
----------------------------------------------------------------
Ben Pickman, writing for SI, reports that the legal team for Brian
Flores, the former Dolphins coach who filed a class-action lawsuit
against the NFL and three teams alleging discrimination, responded
to a statement from NFL commissioner Roger Goodell on Feb. 5,
calling the statement more of a "public relations ploy than real
commitment to change."
On Feb. 5, Goodell sent a memo to the league's teams, saying that
the NFL's efforts toward increasing diversity in its coaching ranks
are "unacceptable" and vowing to "reevaluate" current diversity,
equity and inclusion policies.
Flores's lawyers, Doug Wigdor and John Elefterakis, responded to
the statement, saying that, "Unfortunately, immediately after Coach
Flores filed the class action lawsuit, the NFL and various teams
reflexively, and without any investigation, denied the detailed
allegations set forth in the 60-page complaint. As a result, when
we spoke to the national media the following day we made clear that
the NFL should view this class action lawsuit as an opportunity to
engage in real change and confront the obvious reality.
"We would be pleased to talk to the Commissioner about real change,
but unfortunately he has not reached out to us to engage in such
discussion. In fact, nobody from the NFL has reached out to us.
Absent such a discussion followed by unbiased and concrete change,
we believe that a court or governmental agency must order a federal
monitor to oversee the NFL as the NFL cannot continue to police
itself."
On Feb. 1, shortly after news broke of Flores's class-action
lawsuit, he league released a statement asserting its commitment to
diversity and called the former Dolphins coach's claims "without
merit."
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In the lawsuit, Flores alleges Dolphins owner Stephen Ross offered
him a $100,000 bonus for each loss during the 2019 season, in which
Ross apparently wanted to secure the league's worst record and the
No. 1 pick in the 2020 draft. Flores says he didn't comply with the
request. He also alleged that the Giants had already decided to
hire then-Bills offensive coordinator Brian Daboll three days
before their scheduled interview with Flores—which was revealed
to Flores only after text messages mistakenly sent to him by
Patriots coach Bill Belichick. Additionally, the lawsuit includes
allegations of a "sham" interview with the Broncos.
Flores said that he believes the NFL is at a "fork in the road"
moment when it comes to the hiring of Black coaches. The lawsuit
says that 70% of the NFL's players are Black but there is only one
Black head coach, Mike Tomlin of the Steelers.
"Racism and any form of discrimination is contrary to the NFL's
values," Goodell said in his statement on Feb. 5. "We have made
significant efforts to promote diversity and adopted numerous
policies and programs which have produced positive change in many
areas, however we must acknowledge that particularly with respect
to head coach the results have been unacceptable.
"We will reevaluate and examine all policies, guidelines and
initiatives relating to diversity, equity and inclusion, including
as they relate to gender. We are retaining outside experts to
assist in this review and will also solicit input from current and
former players and coaches, advocates and other authorities in this
area."
Flores was was fired Jan. 10 after going 24–25 in three seasons
as Miami's coach. He is currently in the interview process for
openings with the Saints and Texans, saying on CNN on Feb. 2 he
would not drop the lawsuit if he was offered either of the two
positions. [GN]
NATIONAL FOOTBALL: Former Coach's Claims "False," Class Suit Says
-----------------------------------------------------------------
Alex Butler at upi.com reports that Miami Dolphins owner Stephen
Ross issued a response to allegations in a class-action lawsuit
made by Brian Flores, calling the former coach's claims "false."
The NFL is expected to investigate some of Flores' claims.
Ross issued his statement through the Dolphins. Flores sued the NFL
and its 32 teams through a class-action lawsuit filed jointly by
Wigdor LLP and Elefterakis, Elefterakis & Panek in the United
States District Court of the Southern District of New York.
The lawsuit alleges discrimination against him and other Black
coaches. The lawsuit also claims that Ross offered Flores $100,000
for each loss during the 2019 season, an alleged incentive to
improve the team's position in the first round of the 2020 NFL
Draft.
The NFL, Dolphins, New York Giants and Denver Broncos -- who also
are named in the lawsuit -- denied the claims in initial
statements.
Ex-NFL coach Hue Jackson accuses Cleveland Browns of paying him to
lose games
Sources told NFL Network, ESPN and the Washington Post that the NFL
will investigate Flores' claims that he was offered money for
losses.
"With regards to the allegations being made by Brian Flores, I am a
man of honor and integrity and cannot let them stand without
responding," Ross said in his statement.
"I take great personal exception to these malicious attacks, and
the truth must be known. His allegations are false, malicious and
defamatory.
"We understand there are media stating that the NFL intends to
investigate his claims, and we will cooperate fully. I welcome that
investigation and I am eager to defend my personal integrity, and
the integrity and values of the entire Miami Dolphins organization,
from these baseless, unfair and disparaging claims."
Flores was fired in January after he led the Dolphins to a 24-25
regular-season record over a three-year tenure with the AFC East
franchise. He appeared on several TV networks Wednesday to explain
why he decided to sue the NFL and its teams.
"That [Ross claim] was a conversation about not doing as much as we
needed to do to win football games," Flores told ESPN's Get Up.
Brian Flores sues Miami Dolphins, NFL alleging racial
discrimination
Ross (allegedly) said: "'Take a flight, go on vacation. I'll give
you $100,000 per loss.' Those [were] his exact words," Flores
said.
Flores told CBS, ESPN and CNN that he understood the lawsuit might
make it more difficult for him to receive another NFL coaching job,
but he still wants to hold that role in the future. He said he is
still a candidate to coach the Houston Texans and New Orleans
Saints.
"I absolutely want to coach in this league, but I also know I'm not
the only one with a story," Flores told CBS Mornings. "People have
come before me and there are others with similar stories. It's hard
to speak out.
"You are making some sacrifices. But this is bigger than football
and bigger than coaching."
Former Cleveland Browns coach Hue Jackson told ESPN that his former
team also had a "four-year plan" that incentivized losing while he
was with the franchise. Jackson claimed that bonus money was
available if certain benchmarks were met. The Browns called
Jackson's claims "completely fabricated."
Jackson posted a 3-36-1 record in three seasons with the Browns.
Kimberly Diemert, the executive director of the Hue Jackson
Foundation, tweeted that she has records that the Browns paid
Jackson and team executives to tank -- or lose games on purpose --
during the 2016 and 2017 seasons.
Jackson responded to that tweet and said he could "back up" his
claims.
"Any accusation that any member of our organization was
incentivized to deliberately lose games is categorically false,"
the Browns said in a statement.
Flores' lawyers told multiple TV networks that they have additional
evidence, including witness accounts, to back up claims he made in
the 58-page lawsuit filing. [GN]
OPTIO SOLUTIONS: Nabozny Appeals FDCPA Suit Dismissal
-----------------------------------------------------
Plaintiff MARY C. NABOZNY filed an appeal from a court ruling
dismissing her lawsuit entitled MARY CLARK NABOZNY, Plaintiff v.
OPTIO SOLUTIONS, LLC d.b.a. QUALIA COLLECTION SERVCES, Case No.
3:21-cv-00297-jdp, in the U.S. District Court for the Western
District of Wisconsin.
This is a proposed class action filed on May 3, 2021 in which
Plaintiff Mary Clark Nabozny alleges that Defendant Optio Solutions
LLC, a debt collection agency, violated the Fair Debt Collection
Practices Act when it shared information about Nabozny's debt with
a company that processes and mails debt collection letters.
On June 3, 2021, the Defendant filed a motion to dismiss.
Judge James D. Peterson entered an order on February 1, 2022,
granting Defendant's dismissal motion. On February 2, a Judgment
was also entered in favor of Defendant Optio Solutions LLC
dismissing the case without prejudice for lack of subject matter
jurisdiction.
The Plaintiff seeks a review of this decision.
The appellate case is captioned as Mary Nabozny v. Optio Solutions
LLC, Case No. 22-1202, in the U.S. Court of Appeals for the Seventh
Circuit, filed on Feb. 8, 2022.
The briefing schedule in the Appellate Case states that:
-- Transcript information sheet is due by Feb. 22, 2022; and
-- Appellant's brief is due on or before March 21, 2022 for Mary
C. Nabozny.[BN]
Plaintiff-Appellant MARY C. NABOZNY, on behalf of herself and
others similarly situated, is represented by:
James L. Davidson, Esq.
GREENWALD DAVIDSON RADBIL PLLC
7601 N. Federal Highway
Boca Raton, FL 33487
Telephone: (561) 826-5477
E-mail: jdavidson@gdrlawfirm.com
Defendant-Appellee OPTIO SOLUTIONS LLC, doing business as Qualia
Collection Services, is represented by:
Brendan H. Little, Esq.
LIPPES MATHIAS LLP
50 Fountain Plaza
Buffalo, NY 14202
Telephone: (716) 853-5100
E-mail: blittle@lippes.com
ORACLE CORP: Privacy Class Suit in the Netherlands Dismissed
------------------------------------------------------------
jdsupra.com reports that the entire privacy community waited
anxiously for the outcome of the EUR 11 billion class action claim,
launched in the summer of 2020 by The Privacy Collective (TPC)
against several Oracle and Salesforce entities at the Court of
Amsterdam (Court).
TPC asserted that Oracle and Salesforce violated the privacy rights
of approximately 10 million Dutch internet users and claimed
damages on their behalf.
The outcome of the case did not favour TPC as the Court declared
the claim inadmissible – TPC failed to demonstrate that it
represented the alleged injured parties and therefore did not have
legal standing. Those hoping that the Court would consider the
fundamental question of whether it is possible to bring a
GDPR-damages claim in class actions in the Netherlands were also
left disappointed. It remains to be seen how courts will approach
privacy damages class actions going forward.
Below you will find the highlights of the judgment. We have looked
at class actions for data protection violations throughout Europe
in a recent blog. For more background on the Dutch class action
law, please read our blog. The decision of the Court is available
here (in Dutch only).
The alleged privacy violation
TPC is a Dutch claim foundation. It alleged that Salesforce and
Oracle unlawfully collected and processed personal data of Dutch
internet users in violation of the General Data Protection
Regulation (GDPR) and Article 11.7a of the Dutch Telecommunication
Act (the 'cookie rules'). TPC argued that defendants were not
permitted to, through their Data Management Platform (DMP) service,
collect data through cookies, combine it with other additional
information and then subsequently create individual profiles for
users, which were used to offer personalised online advertisements
and were shared with ad tech providers in a process known as Real
Time Bidding (RTB).
If you would like more information about the data protection
aspects of ad tech and the process of RTB, please reach out to
Nicole Wolters Ruckert.
TPC's claim under the WAMCA
TPC filed the class action claim under the procedure stipulated in
the Dutch Act on Mass Damages Settlement in Class Actions (Wet
Afwikkeling Massaschade in Collectieve Actie or WAMCA). In force
since January 2020, the WAMCA introduced the possibility for
representatives to claim damages on behalf of injured parties using
a class action. The WAMCA provides for an opt-out regime, meaning
even injured parties that did not actively sign up for the claim
are bound to the judgement unless they actively opt-out.
"Support with one click"
To prevent frivolous claims and claims without sufficient support
of the injured parties, the WAMCA sets out admissibility
requirements for organisations bringing class action procedures,
including a requirement that the claimant (in this case TPC)
represents a sufficiently large proportion of the injured parties
(often referred to as a 'representativeness requirement').
To substantiate the representativeness requirement, TPC asserted
that over 75,000 individuals had clicked on the 'support' button on
its website dedicated to this class action. The 'support button was
next to a very general text offering to support the mass monetary
compensation claim against "two large internet companies" with a
single click. The text stated that the claim related to the
large-scale collection and sale of the data of millions of Dutch
people without valid consent. According to TPC, they could
identify, on the basis of IP address, how many unique users clicked
the button, and in the opinion of TPC, this would demonstrate that
the claim has sufficient support of the injured parties. In
addition, TPC said that the action was backed by many privacy
rights NGOs in the Netherlands.
The defendants challenged this position and stated, using various
arguments, that the steps taken by TPC were not enough to
demonstrate the representativeness of the class action and the
claim therefore did not meet the representativeness threshold
required by the WAMCA.
Court rules on inadmissibility
The Court held that TPC had not managed to prove that it had
sufficient support from the injured parties it intended to
represent in these proceedings:
-- The Court found that 75,000 clicks on a "support" button on
TPC's website was not enough to substantiate that TPC had obtained
a statement of support from a significant number of individuals to
represent all internet users in the Netherlands.
-- The Court highlighted that visitors to TPC's website were not
given key information about the case when clicking the button (such
as details of the legal proceedings, the names of the parties being
sued or a description of the injured parties being represented) and
that TPC had not registered the data of those clicking the button
or their contact details.
-- The Court further found it problematic that TPC was not able to
communicate with its alleged supporters (which made it impossible
to meet requirements of transparency and governance for WAMCA based
claims) and that it was unclear whether 'likers' were actually
injured parties.
In the eyes of the Court, these failings were not mitigated by
support from other privacy rights organisations. To be
representative, the Court argued, the TPC's constituency should
consist of injured parties whose interests a claimant represents in
a WAMCA case and not of other organisations sympathetic to the
relevant cause.
Data protection aspects
As the claim was rejected on formalities, the Court did not
consider the merits of the case. Nevertheless, the Court touched
upon the arguments of parties regarding the relationship between
the WAMCA and the provisions in the GDPR. Specifically, the
possibility under Article 80 GDPR for non-for-profit organisations
to lodge complaints on behalf of data subjects with data protection
authorities and exercise data subject rights, including the right
to receive compensation for damages suffered as a result of GDPR
infringement.
The Court summarised, but did not expressly agree with, the
positions of the parties. Rather, the Court observed that the
legislative history of the WAMCA and the Dutch GDPR Implementation
Law did not address whether Art. 80 GDPR precludes claiming damages
in class actions for violation of GDPR. The Court noted that
obtaining a clear picture on this issue is important for the future
WAMCA-based privacy infringement and damages claims. [GN]
OVH GROUPE: Faces Class Suit Over Alleged Fire Losses, Damages
--------------------------------------------------------------
datacenterdynamics.com reports that 103 firms have joined the class
action claiming damages for losses caused by the fire which
destroyed OVHcloud's SBG2 data center in Strasbourg in March 2021.
The law firm says it has been contacted by fifty more OVHcloud
customers, while four large players are taking action
individually.
Paris law firm Ziegler & Associés says OVHcloud has offered a flat
rate of €900 ($1,000) compensation each, while its clients
suffered a total of more than €9.2 million in damages and lost
data caused by the fire at the French cloud provider's facility,
according to an update in Journal du Net (JDN).
The four companies taking individual action each have 10,000 or
more staff, and include one player listed on the CAC 40 French
stock market index.
Deadline - end of February
Those wishing to join the class action have until the end of
February, at which point, Ziegler will send a letter to OVHcloud
setting out their complaints. OVHcloud has previously declined to
comment on the complaint until this letter is received.
Jocelyn Ziegler, founder of Ziegler & Associates, told JDN that it
had calculated the losses of 102 of the 103 companies already
signed up and was in contact with more players who wish to join the
action.
The class action allows smaller companies to take collective
action, and so far only includes six companies with more than 500
employees, although Ziegler expects the average size of the
complainants (and their claims) to increase, explaining to JDN that
public bodies need approvals to join the process, and larger
companies with more than 1000 staff must consult their board of
directors.
Each client on the eventual list will have its losses individually
assessed, including direct financial costs and damage to their
brands, before Ziegler sends its letter. After that, it will give
OVHcloud a month to come to an out-of-court agreement, or else take
it to the commercial court.
By coincidence, this is around the first anniversary of the fire.
which also crippled the SBG1 data center next to SBG2.
"The objective is to demonstrate that OVH's situation is no longer
tenable, and that it will have to go through an amicable discussion
if it does not want a losing trial," Ziegler told JDN (Google
translate)
Ziegler already has the first version of OVH's defense, given to it
by a client who contacted the cloud provider directly. OVHcloud
says the event was unforeseeable, it took reasonable precautions
and, in any case, cloud services have an inherent risk that the
customer should have understood. Ziegler argues that this does not
match with OVHcloud's promises, and suggests that its fire
prevention systems were inadequate.
"Organizations that have joined the class action are fed up with
OVH's reaction. Most have received letters in which the group
indicates that it is disengaging from its responsibility or is
limiting itself to a limitation of liability clause. They ask that
OVH recognize the damage and compensate them," Ziegler told JDN.
In a statement, OVHcloud has said it acted quickly to help
customers, and has offered commercial support, with only
comparatively few customers taking the legal route. [GN]
PACIFICA SENIOR: Dismissal of Whitehead's Claims Partly Affirmed
----------------------------------------------------------------
The Court of Appeals for the Ninth Circuit affirmed in part and
reversed in part the district court's dismissal of the case, ASTON
WHITEHEAD, individually and on behalf of the general public as an
aggrieved employee under the Private Attorneys General Act,
Plaintiff-Appellant v. PACIFICA SENIOR LIVING MANAGEMENT LLC;
PACIFICA OAKLAND LLC, Defendants-Appellees, and STRATEGIC
OUTSOURCING, Defendant, Case No. 21-15035 (9th Cir.).
On appeal are Plaintiff Aston Whitehead's state and federal claims
against Pacifica Senior Living Management LLC and Pacifica Oakland
LLC ("Pacifica") for discrimination, retaliation, and wage and hour
violations, arising under Title VII, the Americans with
Disabilities Act ("ADA"), California's Fair Employment and Housing
Act ("FEHA"), California's Labor Code, California's Business and
Professions Code, the Private Attorneys General Act ("PAGA"), and
public policy.
First, the Ninth Circuit holds that the district court properly
dismissed Whitehead's retaliation claims. A plaintiff asserting a
retaliation claim under Title VII must show that "(1) she engaged
in activity protected under Title VII, (2) the employer subjected
her to an adverse employment decision, and (3) there was a causal
link between the protected activity and the employer's action."
Whitehead did not sufficiently allege that she engaged in protected
activity. Indeed, Whitehead pleaded that the disagreement at issue
stemmed from her questioning a co-worker about a group activity for
residents of the senior care facility, which is not protected
activity.
Additionally, Whitehead did not complain to her employer about any
alleged sex discrimination until after Pacifica had already
informed her that, in its view, she had resigned by refusing to
return to work. As any protected activity has no causal link to
Whitehead's alleged forced resignation, Whitehead's retaliation
claims fail for that reason as well.
Second, the Ninth Circuit holds that the district court also
properly dismissed Whitehead's claims of discrimination under Title
VII, the ADA, and FEHA and related claims. Whitehead alleged that
she was terminated and subject to discrimination because of her
sex, pregnancy, and pregnancy-related disability. A person suffers
discrimination under these statutes "when he or she is singled out
and treated less favorably than others similarly situated on
account of" sex, pregnancy, or disability.
Even if Whitehead did not resign but rather was terminated, she has
not pleaded facts to support the inference that her termination was
because of her sex, pregnancy, or disability as opposed to her
unwillingness to return to work because of a dispute with a
colleague. Because she has not pleaded a plausible claim of
discrimination, Whitehead's sex, pregnancy, and disability
discrimination claims fail, and so do her derivative claims for
failure to prevent discrimination under California Government Code
section 12940(k) and wrongful discharge in violation of public
policy.
Whitehead also did not plead a plausible failure-to-accommodate
claim. To the contrary, Whitehead acknowledged that a supervisor
informed her that she would be contacted when she received modified
duty, and that she was given modified duty weeks later. The
district court therefore did not err in dismissing Whitehead's
failure-to-accommodate claim.
Third, the Ninth Circuit finds that district court erred, however,
by dismissing Whitehead's PAGA claims for violations of the
California Labor Code. It holds that Whitehead sufficiently alleged
that Pacifica failed to timely pay her and other aggrieved
employees wages under PAGA. Whitehead's complaint also adequately
identified the other aggrieved employees subjected to violations of
the obligation to pay accrued vacation wages, alleging that
Pacifica "failed to pay accrued vacation wages to any of their
employees in California who resigned or were terminated since Jan.
15, 2017." Whitehead sufficiently pleaded that Pacifica failed to
provide copies of employment records to her and other California
employees who, since Jan. 15, 2017, have requested copies of their
employment records.
Fourth, the Ninth Circuit also reverses the district court's
dismissal of Whitehead's claim under California Business &
Professions Code Section 17200. Because it holds that Whitehead has
properly alleged violations of the California Labor Code, her claim
under section 17200 also may proceed.
Based on the foregoing, the district court's dismissal of
Whitehead's causes of action for discrimination, retaliation,
failure to accommodate, and wrongful discharge in violation of
public policy, and her claim for relief under California Labor Code
section 226(e), is affirmed (causes of action one through eleven
and, in part, twelve). The district court's dismissal of
Whitehead's causes of action arising under PAGA and her claim under
California Business and Professions Code section 17200 is reversed
(causes of action twelve to fifteen, and eighteen).
A full-text copy of the Court's Feb. 2, 2022 Memorandum is
available at https://tinyurl.com/bdh99v3b from Leagle.com.
PRECIOUS METALS: Lowey Dannenberg Reminds of May 23 Deadline
------------------------------------------------------------
IN RE JPMORGAN PRECIOUS METALS SPOOFING LITIGATION
Case No.: 1:18-cv-10356 (GHW)
Summary Notice of Proposed CLASS ACTION Settlement
If you purchased or sold any Precious Metals Futures or Options on
Precious Metals Futures on the Commodity Exchange Inc. ("COMEX") or
the New York Mercantile Exchange ("NYMEX") from March 1, 2008
through August 31, 2016, your rights may be affected by a pending
class action settlement, and you may be entitled to a portion of
the settlement fund.
If You Purchased or Sold Any Precious Metals Futures or Options on
Precious Metals Futures on the COMEX/NYMEX Exchanges:
This Summary Notice is to alert you to a proposed Settlement
totaling $60,000,000 (the "Settlement Amount") reached with
JPMorgan Chase & Co. ("JPMorgan") in a pending class action (the
"Action").
The United States District Court for the Southern District of New
York (the "Court") authorized this Summary Notice and has appointed
the lawyers listed below to represent the Settlement Class in this
Action:
Vincent Briganti
Lowey Dannenberg, P.C.
44 South Broadway, Suite 1100
White Plains, NY 10601
Telephone: (914) 733-7221
Email: vbriganti@lowey.com
Who is a member of the Settlement Class?
The proposed Settlement Class consists of all Persons and entities
that purchased or sold any Precious Metals Futures or Options on
Precious Metals Futures on the COMEX or NYMEX from March 1, 2008
through August 31, 2016 (the "Class Period"). Excluded from the
Settlement Class are: (i) JPMorgan and any parent, subsidiary,
affiliate or agent of JPMorgan, provided, that any Investment
Vehicle shall not be excluded from the Settlement Class, but under
no circumstances may JPMorgan (or any of its direct or indirect
parents, subsidiaries, affiliates, or divisions) receive a
distribution for its own account from the Settlement Fund through
an Investment Vehicle; and (ii) the United States Government.
"Precious Metals Futures" means Gold Futures contract(s), Silver
Futures contract(s), Platinum Futures contract(s) or Palladium
Futures contract(s), and "Options on Precious Metals Futures" means
any option on Precious Metals Futures.
The other capitalized terms used in this Summary Notice are defined
in the detailed Notice of Proposed Class Action Settlement, July 7,
2022 Fairness Hearing Thereon and Class Members' Rights ("Notice")
and in the Settlement Agreement, which are available at
www.preciousmetalsfuturesclassactionsettlement.com.
If you are not sure if you are included in the Settlement Class,
you can get more information, including the detailed Notice, at
www.preciousmetalsfuturesclassactionsettlement.com or by calling
toll-free 1-877-999-4333 (if calling from outside the United States
or Canada, call 1-414-921-0344).
What is this lawsuit about and what does the Settlement provide?
Class Plaintiffs allege that Defendants JPMorgan and three of
JPMorgan's former futures traders (John Edmonds, Robert Gottlieb,
and Michael Thomas Nowak) unlawfully and intentionally manipulated
the prices of gold and silver futures and options contracts traded
on the COMEX and platinum and palladium futures and options traded
on the NYMEX during the Class Period in violation of the Commodity
Exchange Act, 7 U.S.C. §§ 1, et seq. and the common law.
JPMorgan maintains that it has good and meritorious defenses to
Class Plaintiffs' claims and would prevail if the case were to
proceed. Nevertheless, to settle the claims in this lawsuit, and
thereby avoid the expense and uncertainty of further litigation,
JPMorgan has agreed to pay a total of $60,000,000 in cash for the
benefit of the proposed Settlement Class. If the Settlement is
approved, the Settlement Amount, plus interest earned from the date
it was established (the "Settlement Fund"), less any Taxes, the
reasonable costs of Class Notice and administration, any
Court-awarded attorneys' fees, litigation expenses and costs,
Incentive Awards for Class Plaintiffs, and any other costs or fees
approved by the Court (the "Net Settlement Fund") will be divided
among all Class Members who file valid Proof of Claim and Release
Forms ("Claim Form").
If the Settlement is approved, the Action will be resolved against
all Defendants. If the Settlement is not approved, JPMorgan and the
other Defendants will remain as defendants in the Action, and Class
Plaintiffs will continue to pursue their claims against
Defendants.
Will I get a payment?
If you are a member of the Settlement Class and do not opt out, you
will be eligible for a payment under the Settlement if you file a
Claim Form. You may obtain more information at
www.preciousmetalsfuturesclassactionsettlement.com or by calling
toll-free 1-877-999-4333 (if calling from outside the United States
or Canada, call 1-414-921-0344).
Claim Forms must be postmarked by August 8, 2022 or submitted
online at www.preciousmetalsfuturesclassactionsettlement.com on or
before 11:59 p.m. Eastern time on August 8, 2022.
What are my rights?
If you are a member of the Settlement Class and do not opt out, you
will release certain legal rights against JPMorgan, the other
Defendants, and Released Parties as explained in the detailed
Notice and Settlement Agreement, which are available at
www.preciousmetalsfuturesclassactionsettlement.com. If you do not
want to take part in the proposed Settlement, you must opt out by
May 23, 2022. You may object to the proposed Settlement, the
Distribution Plan, and/or Lead Counsel's request for attorneys'
fees, payment of litigation costs and expenses, and any Incentive
Awards to Class Plaintiffs. If you want to object, you must do so
by May 23, 2022. Information on how to opt out or object is
contained in the detailed Notice, which is available at
www.preciousmetalsfuturesclassactionsettlement.com.
When is the Fairness Hearing?
The Court will hold a hearing via audio teleconference from the
United States District Court for the Southern District of New York,
at the Daniel Patrick Moynihan U.S. Courthouse, located at 500
Pearl Street, New York, NY 10007, on July 7, 2022 at 3:00 p.m.
Eastern Time to consider whether to finally approve the proposed
Settlement, Distribution Plan, the application for an award of
attorneys' fees and payment of litigation costs and expenses, and
the application for Incentive Awards for the Class Plaintiffs. Any
Class Member who wants to participate at the Fairness Hearing can
do so remotely by calling the following toll-free number:
1-888-567-1602 (if calling from outside the United States or
Canada, call 1-862-298-0702) on the date and time of the Fairness
Hearing. You or your lawyer may ask to participate and speak at the
hearing, but you do not have to. Any changes to the time and place
of the Fairness Hearing, or other deadlines, will be posted to
www.preciousmetalsfuturesclassactionsettlement.com as soon as is
practicable. [GN]
R.J. REYNOLDS: Fla. Dist. App. Remands Gloger Suit for New Trial
----------------------------------------------------------------
In the case, R.J. Reynolds Tobacco Company, et al., Appellants v.
Kenneth Gloger, etc., Appellee, Case No. 3D20-38 (Fla. Dist. App.),
the District Court of Appeal of Florida for the Third District
reversed for a new trial the trial court's final judgment entered
following a jury verdict in favor of Kenneth Gloger, as personal
representative of the estate of his wife, Irene Gloger.
I. Introduction
In the appeal from an Engle-progeny tobacco case, Philip Morris USA
Inc. and R.J. Reynolds Tobacco Co. appeal a final judgment entered
following a jury verdict in favor of Kenneth Gloger, as personal
representative of the estate of his wife, Irene Gloger. The jury
awarded a total of $42.5 million in compensatory and punitive
damages.
The Appellants raise several arguments on appeal. Among them is
that the trial court erred in denying a cause challenge to a
prospective juror thus requiring appellants to utilize a peremptory
challenge to strike that juror. The prospective juror's responses
during voir dire, they argue, created at least a reasonable doubt
about her ability to be impartial and to follow the law if selected
to serve on the jury.
II. Background
During jury selection, the attorneys questioned the prospective
jurors about the parties' respective burdens of proof, and inquired
if they could follow the trial court's instructions on the law. At
the conclusion of jury selection, the Defendants challenged
Prospective Juror 8 for cause, given her statements and responses
during voir dire. The defense counsel argued that Prospective Juror
8 "said that we have to disprove addiction after it was explained
to her again and again that we have no burden." The trial court
disagreed with that characterization of the prospective juror's
statements, and denied defendants' for-cause challenge. Gloger's
counsel countered that the juror's testimony on addiction was
merely her opinion; instead, the pertinent question was whether the
juror would be "fair and impartial and listen to the evidence"
which -- according to counsel -- the juror confirmed she would do
if chosen to sit on the jury.
Because the for-cause challenge was denied, the Defendants were
required to use a peremptory challenge to strike Prospective Juror
8. The Appellants eventually used their allotted peremptory
challenges and requested an additional peremptory to strike another
specifically identified juror (prospective juror 131). The trial
court denied the request for an additional peremptory challenge,
and as a result, prospective juror 131 served on the jury.
Ultimately, the jury returned a verdict of compensatory damages in
the amount of $15 million, and punitive damages in the amount of
$27.5 million ($11 million against PM USA and $16.5 million against
RJ Reynolds), for a total verdict of $42.5 million. Judgment was
entered upon the verdict, and the appeal followed.
The Court of Appeal reviews the trial court's denial of the
for-cause challenge for an abuse of discretion.
III. Analysis
While it recognizes the trial court's unique vantage point in the
determination of juror bias, and the corresponding deference
accorded the trial court's determination, the Court of Appeal finds
that such deference is not without limits. The instant case
presents just such an instance in which there was plainly a
reasonable doubt about Prospective Juror 8's ability to be fair and
impartial and to follow the law. Under these circumstances, the
trial court erred in denying the Defendants' for-cause challenge,
requiring the Defendants to use a peremptory challenge to strike
the prospective juror.
Turning to the merits of the claim, Prospective Juror 8 stated
during jury selection that she believed anyone who smoked every day
was addicted to smoking, and even after it was explained -- and she
acknowledged -- that the Defendants did not have the burden of
proof on this issue, the prospective juror indicated she would
"expect the Defendants to prove" Mrs. Gloger "was not addicted" to
cigarettes.
While the prospective juror responded that she would "take back"
her earlier statements and would decide the question of addiction
on a case-by-case basis, one cannot ignore the stark contrast with
her initial responses to questions on the issue, which cast serious
doubt on her suitability to sit as a juror in the case.
Moreover, Prospective Juror 8's responses to the court's follow-up
questioning merely indicated that she would decide on a
case-by-case basis; she did not alter her responses on the question
of which party must prove (or disprove) the element of addiction.
Simply stated, the Court of Appeal opines that given her responses
to questioned and personal experiences discussed during jury
selection, there was a reasonable doubt as to whether Prospective
Juror 8 could set aside her preconceived belief that a daily smoker
is addicted and that defendants bore the burden of proving the
smoker was not addicted.
IV. Conclusion
The Court of Appeal concludes that the trial court erred in denying
the Defendants' for-cause challenge of Prospective Juror 8 and
further erred in denying the Defendants' request for an additional
peremptory challenge after the Defendants struck Prospective Juror
8 peremptorily, exhausting all their peremptory challenges. It
therefore reversed and remanded for a new trial.
Not final until disposition of timely filed motion for rehearing.
A full-text copy of the Court's Feb. 2, 2022 Opinion is available
at https://tinyurl.com/54z2h66p from Leagle.com.
Arnold & Porter Kaye Scholer LLP, and Geoffrey J. Michael --
geoffrey.michael@arnoldporter.com -- and David M. Menichetti --
david.menichetti@arnoldporter.com -- (Washington, DC); King &
Spalding LLP, and William L. Durham II and Val Leppert (in Atlanta,
Georgia), for the Appellants.
Ratzan, Weissman & Boldt, and Kimberly L. Boldt --
kimberly@rwblawyers.com -- Stuart N. Ratzan --
stuart@rwblawyers.com -- Stuart J. Weissman, Mario R. Giommoni and
Ryan C. Tyler; Crabtree & Auslander, John G. Crabtree, Charles M.
Auslander, Linda A. Wells, and Brian C. Tackenberg, for the
Appellee.
ROBLOX CORP: May Face Class Suit Over Alleged Illegal Gambling
--------------------------------------------------------------
Warren Terzian LLP is investigating a potential class action
against Roblox, RBX Flip, RBX Crash, and similar casino games on
the Roblox platform.
The law firm believes that these games may constitute illegal
gambling. You may have the right to recover any money or Robux lost
playing these games.
If any other questions, please email dan.terzian@warrenterzian.com.
[GN]
RUTGERS UNIVERSITY: Settles Pandemic-Related Class Suit for $5-Mil.
-------------------------------------------------------------------
Mike Deak at MyCentralJersey.com reports that Rutgers students will
receive between $50 and $70 each from a $5 million settlement of a
class action lawsuit against the university asking for a refund for
on-campus tuition and fees when the school transitioned to remote
learning in March 2020 because of the pandemic.
The settlement, tentatively reached in October and formally
approved by Superior Court Judge Alberto Rivas in New Brunswick on
Jan. 28, means that the approximately 65,000 students covered in
the class action suit will receive their share as a credit to their
next tuition and fee bill. Students no longer enrolled at the
university can have checks mailed to their last address or
deposited in their Venmo or PayPal accounts.
Students may also choose to donate their share of the settlement to
the Rutgers COVID-19 Dean of Students Emergency Fund.
Two class representatives, Kari Rocchio and Sana Mahmood, each will
receive $2,500.
Local:Rutgers Jewish center answers 'Maus' ban with free lessons on
Holocaust novel for teachers
The settlement also calls for the law firms that brought the case,
Carella, Byrne, Cecchi, Olstein, Brody & Agnello of Roseland;
Hagens Berman of Chicago and Bursor & Fisher of New York City, to
receive $950,000 in legal fees.
The firms originally had asked for $1.7 million in fees, slightly
more than a third of the $5 million settlement, but Rutgers argued
in a brief that it would "take too much money out of the hands of
the Rutgers students intended to benefit from the settlement."
Rutgers said the legal fees should be $500,000, about 10% of the
settlement, but both parties agreed to the $950,000.
The lawsuit, filed in May 2020, cited Rutgers for breach of
contract and unjust enrichment for "continuing to reap the
financial benefit of millions of dollars from students" despite
sending students home and closing campus because of the pandemic.
Rivas dismissed the lawsuit in December 2020, but the decision was
appealed and the parties entered mediation, which resulted in the
settlement.
Rutgers has a $4.8 billion budget for the 2021-22 fiscal year.
More information about the settlement can be found at
www.rutgersstudentfeesettlement.com. [GN]
S&P GLOBAL: Court Partly Compels Discovery in Aviles Class Suit
---------------------------------------------------------------
In the cases, LUIS RAMIRO AVILES, et al., Plaintiffs v. S&P GLOBAL,
INC., et al., Defendants. FERNANDO RAUL BENEDETTO, et al.,
Plaintiffs v. ATC REALTY FIFTEEN, INC., et al., Defendants. HORACIO
NESTOR ACEBEDO, et al., Plaintiffs v. ATC REALTY FIFTEEN, INC., et
al., Defendants. FREDERICO ALVAREZ, et al., Plaintiffs v. ATC
REALTY FIFTEEN, INC., et al., Defendants. HECTOR JORGE ARECO, et
al., Plaintiffs v. ATC REALTY FIFTEEN, INC., et al., Defendants,
Case Nos. 17-CV-2987 (JPO) (KHP), 17-CV-6087 (JPO) (KHP),
17-CV-7034 (JPO) (KHP), 18-CV-128 (JPO) (KHP), 18-CV-2416 (JPO)
(KHP) (S.D.N.Y.), Magistrate Judge Katharine H. Parker of the U.S.
District Court for the Southern District of New York issued an
Opinion and Order granting in part and denying in part:
(i) Defendants Smith Estate and Wells Fargo's motion for
permission to conduct additional discovery as to the
so-called Pre-2011 Plaintiffs;
(ii) the Plaintiffs' motion for a Protective Order for phased
discovery precluding all the Defendants from seeking
additional individualized discovery from the Plaintiffs
until after resolution of common issues;
(iii) Defendant Wells Fargo's motion o compel discovery
regarding its statute of limitations defense; and
(iv) all the Defendants' motion to compel the Plaintiffs to
complete their production and provide other information
about the process of collection, contending that the
production has been inadequate.
I. Background
The Plaintiffs (a group of nearly 500 investors located outside of
the United States) have asserted a dozen individual, derivative and
class claims in this action, all stemming from their investment in
the Lifetrade Funds and total loss of their investment when the
Funds defaulted on a line of credit, resulting in Wells Fargo
foreclosing on the debt and acquiring the Funds' assets, which had
been pledged as collateral.
The Plaintiffs charge the former and now deceased head of
Lifetrade, Roy Smith, with, among other things, breach of fiduciary
duty, fraud and misrepresentation stemming from his mismanagement
of the funds and concealing that the Funds were paying exorbitant
fees to companies controlled by Smith and then lying to investors
about the true financial state of the Funds and the meaning of the
S&P rating of the Funds and hiding the settlement with Wells Fargo
pursuant to which it acquired all of the Funds' assets. They charge
Wells Fargo with aiding and abetting Smith's breach of fiduciary
duty and unconscionability in connection with its settlement
agreement with the Funds, which they say was concealed from
investors. They charge Standard & Poors ("S&P") with recklessly
including certain information about the Funds' assets in its
ratings report that was untrue and misleading to investors.
The Honorable J. Paul Oetken found certain fraud-based claims to be
time-barred, leaving a large group of Plaintiffs who invested in
the Funds prior to April 24, 2011 with more limited claims against
S&P and the Estate of Roy Smith ("Estate"); however, these
Plaintiffs still have breach of fiduciary duty claims against the
Estate and foreign law claims against the Estate and S&P.
There are approximately 450 Plaintiffs who invested prior to April
24, 2011 ("Pre-2011 Plaintiffs") and about 66 Plaintiffs who
invested more recently ("Post-2011 Plaintiffs") with individual
claims against the Estate and S&P. Some of the Plaintiffs are
institutional investors. Four Plaintiffs are prosecuting the
derivative claims of breach of fiduciary duty on behalf of the
Lifetrade Funds ("Derivative Plaintiffs") against the Estate and
the aiding and abetting and unconscionability claims against Wells
Fargo. One of the derivative Plaintiffs, Rafael Mendoza de la
Torre, has indicated that he is withdrawing as a derivative
plaintiff, although he will remain an individual Plaintiff.
The Plaintiffs are all located abroad, making discovery more
expensive insofar as discovery requests and responses must be
translated into or from Spanish and Japanese and because of other
expenses associated with conducting discovery outside of the
District and the United States. Some of the Plaintiffs have died
and many are elderly or disabled, also complicating discovery.
To manage the scope and sequence of discovery appropriately and
efficiently, the Court directed the parties to develop a standard
set of contention interrogatories/written deposition questions that
would be furnished to the Pre-2011 Plaintiffs in an electronic
survey format in their native languages that they could answer and
attest to electronically. The goal is to eliminate or reduce the
need for depositions and minimize costs. The Court further directed
the parties to jointly review and select an appropriate vendor to
administer the dissemination of questions and collection of
responses.
The Defendants also propounded document requests on the Plaintiffs.
The Plaintiffs, however, have missed numerous deadlines and had to
obtain extensions of deadlines. Moreover, the Plaintiffs did not
initially closely supervise the collection of documents, allowing
their clients to self-collect. The Court later ordered them to go
back and more closely supervise the searches. They also produced
documents without metadata and failed to indicate which documents
came from which the Plaintiffs. As a result, the Court required
them to "create a very granular list" that identifies by Plaintiff
how each communicated, the location of their documents, their
document retention practices in the regular course, and how the
search and collection of their documents was conducted. It also
required them to comply with Rule 34 and state as applicable when a
particular Plaintiff does not have documents responsive to
particular document requests and the reason why they do not have
the documents (e.g., a broker or agent has them, lost or destroyed,
never had).
The Plaintiffs subsequently prepared a chart that provides the
Bates range of documents for each Plaintiff, whether emails were
searched and whether the individual conducted a self-search or
attorney-assisted search. For some Plaintiffs, it indicates that
the Plaintiff has no responsive electronic documents. The chart
also identifies the account where the Plaintiff's shares were held
(e.g., at Lifetrade or at a bank/broker) and whether the Plaintiff
produced an investment record (electronic or hard copy) of
Lifetrade ownership. For some Plaintiffs, the chart indicates the
name of the investor or account if different from the named
Plaintiff. For some Plaintiffs, information is missing.
Many Plaintiffs had few documents responsive to Defendants'
requests. Wells Fargo questions the volume of documents produced
given that some of the Plaintiffs are institutional investors or
had money managers and contends certain information is still
outstanding. The parties attempted to enter into a stipulation to
obviate the need for discovery but could not agree to stipulate
that the statute of limitations for the claim against Wells Fargo
accrued as of Aug. 14, 2012 (the date of the settlement agreement)
and not the date of discovery of the settlement agreement by any
one Plaintiff; however, the Plaintiffs have conceded in filings
with the Court that individual reliance is not an element of the
derivative claims. It believes it should be permitted to depose all
four Derivative Plaintiffs on the basis of the Derivative Claims.
The Estate also questions the adequacy of the production from the
Pre-2011 Plaintiffs. Insofar as each has individual claims against
the Estate for breach of fiduciary duty and violations of foreign
law, the Estate seeks information concerning their standing to
assert individual claims. The Estate also seeks documents and
testimony reflecting Smith's alleged "repeated assurances" that
they were working in the Plaintiff's best interest following the
settlement agreement.
As for the Post-2011 Plaintiffs, only about one-third appear as
shareholders in Lifetrade records. The remainder, according to the
Defendants, have not produced documentation confirming that they
invested after April 24, 2011. According to the Defendants, the
Plaintiffs' collection process has been unclear and they seek
clarity on the process and a date certain by when production must
be complete because they do not wish to be sandbagged later in the
litigation with newly discovered responsive documents. The
Defendants also seek to depose the Post-2011 Plaintiffs.
All the Defendants seek to depose the Post-2011 Plaintiffs or a
large number of them and also wish to conduct depositions, if
necessary, Wells Fargo and the Estate seek depositions of at least
some of the Pre-2011 Plaintiffs, after review of the Plaintiffs'
complete production and responses to the electronic survey.
The Plaintiffs object to broad discovery of them. They contend that
if a class is not certified, a trial of the individual claims of
the approximately 500 Plaintiffs could not be done in a single
trial. They propose that discovery on individual reliance issues be
deferred until a later time, after a decision on class
certification, and that individual reliance could be addressed in
"bellwether trials" at some point. In other words, they seek a
phased approach to discovery where individual reliance issues from
the Pre-2011 Plaintiffs and even the Post-2011 Plaintiffs be
deferred and dispositive motions and trials on common issues be
conducted first, as they may obviate the need for burdensome
discovery from 500 people all located abroad.
II. Discussion
The Court has been closely supervising discovery in the case and
has from the outset attempted to identify with the parties methods
of discovery that will reduce costs and expedite production of
information relevant to the claims and defenses in an efficient
manner. Having considered all of the parties' concerns, Judge
Parker resolves the motions as follows:
A. Document Production
a. All the Plaintiffs (that is, Pre-2011, Post-2011 and
Derivative Plaintiffs) will complete their document production by
Feb. 28, 2022. The Plaintiffs are reminded that under Fed. R. Civ.
P. 34 they are obliged to state that they do not possess responsive
documents (if that is the case) to particular document requests.
They may create an omnibus chart for this purpose to the extent
they believe doing so would be most efficient. They must make these
representations by Feb. 28, 2022. The Plaintiffs will provide an
updated chart indicating which documents were produced by which
Plaintiff by Feb. 28, 2022. To the extent the Plaintiffs have
collected electronic documents with metadata, they will provide a
metadata overlay by Feb. 16, 2022, consistent with the parties' ESI
protocol. The Plaintiffs are reminded of their obligation under
Fed. R. Civ. P. 26(g) to conduct a reasonable search for documents.
Judge Parker does not require a separate certification, as
requested by the efendants, as she finds no basis to believe that
the Plaintiffs have not attempted to diligently collect documents.
To the extent they do not have relevant documents, they will face
obstacles proving their claims. The Plaintiffs may be precluded
from relying on documents produced after Feb. 28, 2022 in
connection with class certification and dispositive motions and
trial.
b. The Plaintiffs will produce their final privilege log by
March 11, 2022.
B. Depositions and Additional Discovery
a. No depositions will be taken of the Pre-2011 Plaintiffs
until completion of the survey. The survey questions are intended
to eliminate or reduce the need for in-person or video depositions.
The survey should be issued by no later than Feb. 28, 2022 and
responses should be provided by no later than March 31, 2022. No
additional document requests or interrogatories or requests to
admit will be served on these Plaintiffs without leave from this
Court. Defendants may propose a discovery plan for limited
additional discovery, including depositions, by April 8, 2022.
b. The Defendants may depose all Derivative Plaintiffs,
including Mendoza. Those depositions will be conducted in April and
completed by April 29, 2022. To the extent they have not already
done so, the Derivative Plaintiffs will answer the interrogatories
propounded on them.
c. The parties are directed to meet and confer to determine
the best method to obtain information from the Post-2011 Plaintiffs
on the issue of reliance and other key issues. Judge Parker rejects
the Plaintiffs' argument that discovery on reliance should be
deferred for a number of reasons, including, without limitation,
that the case has been pending since 2017, many of the Plaintiffs
are elderly and there is a substantial risk that they may die or
become unable to participate in discovery if it is delayed, the
events in question took place a decade ago such that memories are
already faded and will continue to fade with the passage of more
time, Plaintiffs have asserted individual claims of fraud which
Defendants are entitled to explore and understand. She encourages
the parties to evaluate whether electronic survey questions can
reduce the need for individual depositions and whether time limits
are appropriate. The parties will be prepared to discuss their
proposed plan at the March case management conference. No
deposition notices or other discovery will be served on the
Post-2011 Plaintiffs until the parties meet and confer regarding a
plan for completing discovery as to these Plaintiffs and until
after the March case management conference.
d. Notwithstanding the above, to the extent the Plaintiffs
have identified any class representatives in connection with the
class certification briefing or submitted affidavits from
individual Plaintiffs, the Defendants will be permitted to depose
such Plaintiffs. Such depositions will take place as soon as
possible and no later than April 29, 2022.
C. Clarification on Scope of Discovery Sought by Wells Fargo
Wells Fargo seeks information from Pre- and Post-2011 Plaintiffs
are relevant to its statute of limitation defense, which it argues
is three years. As noted by Judge Oetken in his 2019 opinion in the
case, "where, as here, a shareholder asserts a fiduciary breach
claim derivatively on behalf of a company, New York law typically
applies a six-year limitations period regardless of whether the
claim sounds in fraud." Accordingly, as the applicable statute of
limitations is six years, and not three, Wells Fargo fails to show
how such discovery would be relevant to the defense it seeks to
assert.
Wells Fargo also seeks discovery from Pre- and Post-2011 Plaintiffs
to "demonstrate the absence of a fiduciary breach and defenses
related to mitigation, acts and omissions by one or more Plaintiff,
contribution, and set off." As the pending aiding and abetting
breach of fiduciary duty claim first requires a showing that Smith
and/or Marcum did indeed breach their fiduciary obligations, Wells
Fargo is entitled to explore whether a breach did occur and the
extent of such breach. Thus, subject to the limitations set forth
above, Wells Fargo may explore this subject area.
D. Request to Strike Allegations
To the extent the Defendants have requested that certain of the
Plaintiffs' allegations be stricken, the request is denied. Judge
Parker appreciates the Defendants' frustrations, but having
supervised discovery in the matter, she finds no reason to sanction
the Plaintiffs under Rule 37 at this point. The Plaintiffs have
been actively pursuing this case, met and conferred with defense
counsel, and engaged in discovery. At most they are guilty of
underestimating the time required to obtain discovery from 500
Plaintiffs and vigorous advocacy.
III. Conclusion
For the reasons she stated, and to avoid any confusion amongst the
parties, Judge Parker granted in part and denied in part each of
the following motions: (1) the Defendants Smith Estate and Wells
Fargo motion to compel discovery from the Pre-2011 Plaintiffs; (2)
the Plaintiffs' motion for a Protective Order; (3) the Defendant
Wells Fargo's motion to compel; and (4) the Defendants' motion to
compel production from certain Plaintiffs.
A full-text copy of the Court's Feb. 2, 2022 Opinion & Order is
available at https://tinyurl.com/45ccpuyw from Leagle.com.
SAINT-GOBAIN PERFORMANCE: Judge Okays $65MM Hoosick Settlement
--------------------------------------------------------------
The Associated Press reports that a federal judge has approved a
$65 million settlement in a class action lawsuit with three
companies over chemical contamination of the water supply in an
upstate New York village.
The Times Union reported the ruling on Feb. 4 by U.S. District
Senior Judge Lawrence E. Kahn sets off a 30-day period for an
appeal to be filed challenging the settlement. Kahn had previously
ruled the settlement was "fair, reasonable and adequate."
Under the settlement, Saint-Gobain Performance Plastics, Honeywell
International and 3M will compensate plaintiffs who are current or
former residents of Hoosick Falls, northwest of Albany, for their
exposure to PFOA, a chemical once used in certain industrial
processes. [GN]
SAN JOSE, CA: Class Decertification Order in Plata Suit Affirmed
----------------------------------------------------------------
In the case, RAYMOND PLATA, et al., Plaintiffs and Appellants v.
CITY OF SAN JOSE, Defendant and Appellant, Case No. G060385 (Cal.
App.), the Court of Appeals of California for the Fourth District,
Division Three, affirmed in part and reversed in part the trial
court's ruling granting the City's motion to decertify the class,
and refusing to grant the Platas any relief as to their tiered rate
argument.
I. Background
Appellants Raymond and Michelle Plata are property owners in the
City and customers of Muni Water. Muni Water provides water service
to over 26,000 metered customer connections in the area. The City
has owned and operated Muni Water for approximately 60 years.
Muni Water's annual budget is reflected each year in a document
called a source and use of funds statement, which is part of the
City's annual operating budget. The fund allocated for Muni Water
revenues and charges is Fund 515.
On Nov. 4, 2013, the Platas filed with the City a claim pursuant to
Government Code sections 910 and 910.2. In the claim, they accused
Muni Water of violating Proposition 218 ab initio -- that is, since
its passage in 1997 -- by collecting money from customers and
illegally transferring it to the City's own general fund. In
essence, they said, the City used Muni Water revenues not for
operational costs associated with water service, but for general
purposes. So, the argument went, these transfers depleted Muni
Water's own cash reserves and customers were required to pay higher
rates than they otherwise would have in order to make up the
difference. The claim asserted the unlawful practice continued
through the 2013 to 2014 fiscal year.
The City rejected the claim on Nov. 12, 2013, and so in January
2014, the Platas brought a class action lawsuit. They sought
declaratory and injunctive relief against the City under
Proposition 218, as well as recovery of the amounts overpaid.
On Feb. 3, 2015, the Platas filed an amended and supplemental
complaint which folded in an additional government claim they had
lodged with respect to the 2014 to 2015 fiscal year. The City
rejected that claim on Nov. 6, 2014. Thereafter, the Platas filed
two more government claims, one on Oct. 21, 2015, with respect to
the 2015 to 2016 fiscal year, and the other on Dec. 1, 2016, with
respect to the 2016 to 2017 fiscal year. These subsequent claims
became the subject of two more lawsuits. Only the lawsuit
concerning the 2015 to 2016 fiscal year was consolidated with the
present action. Thus, for all intents and purposes, 2016 marks the
end of the relevant factual timeframe in the case.
In June of 2015, the trial court granted the Platas' motion to
serve as the Lead Plaintiffs in a class of "all past and current
customers of the San Jose Municipal Water System who have paid for
water service from the San Jose Municipal Water System since Jan.
1, 1997."
The Platas have isolated five categories of transfers within the
City's budgets over the years which they claim were unlawful. The
first is late fees charged to customers who do not pay their water
bill on time. The second is amounts transferred to service the debt
incurred in the financing of city hall and related structures and
appurtenances. The third is so-called "enterprise in lieu"
transfers; these transfers represent fees the City would otherwise
charge a private utility to provide a similar service. The fourth
is "rate of return" transfers, or transfers the City made from Muni
Water to compensate the City for investing in the Muni Water system
instead of investing the funds elsewhere. And the fifth is
transfers made to the City to compensate it for overhead costs. As
the issues are framed in this appeal, we need only address the
first, third, and fourth categories.
In September 2017, only a few weeks before trial was set to begin
in the matter, the parties filed a joint pretrial statement in
which the Platas seemingly introduced two new issues into the trial
mix: (1) "Whether the City's use of tiered water rates violated
Section 6" of article XIII D of the California Constitution, and
(2) "whether the City charges Muni Water customers based on the
cost of providing water service to their parcel."
Not long after this revelation, the City filed a motion to
decertify the class, arguing the addition of the "new theories"
destroyed any community of interest between the class members, as
well as the other elements necessary for class certification. The
issue was also highlighted amongst the City's numerous motions in
limine. The City contended neither theory had been mentioned in the
Platas' government claims or in their pleadings.
After a lengthy bench trial, the trial court issued a statement of
decision making -- among many -- the following determinations
pertinent to our inquiry. First, the late fees charged by Muni
Water were not a fee or charge covered by Proposition 218. Second,
any claims accruing prior to Nov. 4, 2012 were time-barred because
of the statute of limitations provided under Government Code
section 911.2, and there was no basis for applying any equitable
tolling doctrine. (The three bases proffered by the Platas were
delayed accrual, estoppel, and continuing violation, but they only
raise the third in this appeal.)
As for tiered water rates, however, the trial court found the
discussion of high rates in the Platas' government claims adequate
to give notice to the City that its rate structure was being
questioned. It found the tiered rate structure did not comply with
Proposition 218, but it was unable to award the Platas any relief
because they did not show individualized harm. It also noted "a
more significant complication" raised by the City in its class
decertification motion. The tiered rate structure would impact
different class members differently from month to month, thus
making it potentially "impossible" to draw a "line between
'winners' and 'losers' based on monthly water consumption." It
granted the City's motion to decertify the class, and refused to
grant the Platas any relief as to their tiered rate argument.
II. Discussion
The Platas appeal four aspects of the trial court's ruling. First,
they think the trial court erred in determining late fees were not
governed by Proposition 218. Second, they feel the trial court
should have awarded relief on their tiered rate theory, or should
at least have allowed them the opportunity to present evidence of
individualized harm. Following from this is their third argument:
The class should not have been decertified based on the tiered rate
theory because there was no significant change in circumstances to
warrant it. And finally, the trial court incorrectly applied the
statute of limitations to bar any recovery with respect to rate of
return and enterprise in lieu transfers.
The City appeals the trial court's ruling on tiered rates to the
extent it allowed the theory to be aired at all, for the reasons
mentioned.
The Court of Appeals think the City is correct, and thus, it need
not linger long on the Platas' second and third arguments.
A. Late Penalty Charges
The Platas argued Muni Water violated Proposition 218 criteria by
charging late penalty charges which could not be tied to any cost
of providing water. The trial court did not think these charges
needed to comply with those criteria.
It was correct, the Court of Appeals opines. First, it finds that
the analysis of late penalty charges seems straightforward. These
charges do not burden landowners as landowners -- as Apartment
Association and its progeny contemplate -- but landowners as
delinquent bill payers. An owner will not incur a late penalty
charge merely through ownership and normal use of property, but
through an additional act -- or in the case, omission: Dailing to
pay his or her bill by the due date. This issue is, in the Court of
Appeals' view, dispositive. Without the benefit of a crystal ball,
Muni Water cannot identify in advance which property owners will
become delinquent on their bills. Thus, it would be unable to
calculate a per-parcel charge and notify those property owners of a
public hearing as it would be required to do under article XIII D,
section 6, subdivision (a).
Second, the Court of Appeals finds that the late penalty charges
are not charges for water delivery, they are charges for money
non-delivery, for failure to pay the bill. They are charged, as one
of the City's accountants testified, to incentivize customers to
pay their bills on time. They have nothing to do with water usage
any more than failure to pay your Mastercard bill has to do with
the dinner you put on your card. They are not "fees" as
contemplated in the constitutional definition.
Finally, the Court of Appeals finds that the penalty in question is
not tacked to water rates and is not dependent on a customer's
usage. It is charged if and only if a customer fails to pay his or
her bill in a timely fashion. Any suggestion the District might
someday attempt to raise revenue by encouraging non-payment fails
the straight-face test. The Court of Appeals upholds the trial
court's ruling as to late penalty charges.
B. Tiered Rate Structure
Relying on Capistrano Taxpayers Assn., Inc. v. City of San Juan
Capistrano (2015) 235 Cal.App.4th 1493, the trial court found Muni
Water's tiered rate structure does not withstand constitutional
scrutiny because the City did not perform a proportionality
analysis to understand how the tier prices relate to the actual
cost of providing water at those levels of consumption.
Based on the record before it, the Court of Appeals opines that the
City was justified in believing both the government claim and the
lawsuit turned on the transfers and late penalty charges. And even
though the claim and the pleadings may have suggested rates in
general as a point of contention in the future, discovery had shown
the focus of the litigation to be the transfers and their
downstream impact -- so to speak -- on customers. This appears to
have been both sides' understanding of the case. Thus, the trial
court abused its discretion in permitting the Platas to "assert not
merely a new theory, but liability on an entirely different state
of facts."
Allowing the Platas to expand the scope of issues on the eve of
trial undermined the purpose of the GCA, and the Court of Appeals
therefore reverses the aspect of the judgment pertaining to tiered
rates, which renders moot the Platas' contention that they should
have been awarded relief with respect to this theory.
C. Statute of Limitations
The trial court barred recovery premised on violations taking place
before Nov. 4, 2012, exactly one year before the filing of the
Platas' first government claim. This ruling effectively eviscerated
their claims for the rate of return and enterprise in lieu
transfers, which had ceased three years prior to their first
government claim. The Platas therefore argue such claims are not
time-barred because the City continues to unlawfully use the
transferred revenues so the statute has not run; accrual has been
continuous.
The Court of Appeals thinks substantial evidence supports the trial
court's finding. First, the class members did not specially pledge
money to the City and had no expectation of being reimbursed at the
time of payment. Second, one could just as easily use a "first in
first out" approach, which would mean the funds that had been
sitting in the account longest would be the first to be expended.
Lastly, the trial court was within its province to believe him over
Knudsen, and the Court of Appeals defers to its credibility
determination.
Since the Platas succeeded on none of their claims, the Court of
Appeals need not address the trial court's order decertifying the
class, which -- while facially sound -- was based on circumstances
related to the addition of the tiered water rate theory, which it
concludes should not have been in play.
III. Disposition
The judgment is reversed only as to the trial court's findings on
the tiered rate structure. In all other respects, it is affirmed.
The City of San Jose will recover its costs on appeal.
A full-text copy of the Court's Feb. 2, 2022 Opinion is available
at https://tinyurl.com/4vces329 from Leagle.com.
McManis Faulkner, James McManis -- jmcmanis@mcmanislaw.com --
Matthew Schechter -- mschechter@mcmanislaw.com -- Tyler Atkinson --
tatkinson@mcmanislaw.com -- and Hilary Weddell --
hweddell@mcmanislaw.com -- for Plaintiffs and Appellants Raymond
and Michelle Plata.
Richard Doyle, City Attorney, Nora Frimann and Ardell Johnson,
Assistant City Attorneys, Kathryn Zoglin and Margo Laskowska,
Deputy City Attorneys for Defendant and Respondent City of San
Jose.
Hanson Bridgett, Adam W. Hofmann -- ahofmann@hansonbridgett.com --
and Sean G. Herman -- SHerman@hansonbridgett.com -- as Amicus
Curiae on behalf of The League of California Cities.
SANTANDER BANK: Reaches $4.25M Settlement in Labor Class Action
---------------------------------------------------------------
topclassactions.com reports that Santander Bank has reached a $4.25
million class action settlement with a group of business operations
managers who had accused the bank of failing to pay overtime.
The managers called on a New Jersey federal court to approve the
unopposed settlement, which includes a $10,000 service award to
lead Plaintiff Crystal Sanchez and a $5,000 award to each of the
other six named plaintiffs in the case.
The class includes 764 branch operations managers from
Pennsylvania, New York, Connecticut, Massachusetts, New Hampshire
and Rhode Island who will receive a prorated share of the
settlement based on the number of weeks they worked. $1.4 million
will go toward attorney fees, the motion says.
The managers, who had sued for violations of the Fair Labor
Standards Act and various states' laws, say in the motion that the
settlement would avoid further expenses then would come with
continued litigation.
"The parties anticipate spending much more time and resources
should litigation continue, with both sides spending an exorbitant
amount of time and resources on discovery, motion practice, and
experts," the motion reads.
Plaintiffs Says She Felt Obligated To Work Extra 10-12 Hours Per
Week Because She Was Understaffed
Sanchez filed the class action lawsuit in 2017 alleging that
Santander failed to pay such business operations managers overtime
despite requiring them to work off the clock.
Sanchez worked at the South Amboy, New Jersey, branch between 2014
and 2017 and alleged that during her time as a manager, she, and
other business operations managers, were not paid time and a half
for the off-the-clock work they were required to perform.
She argued that she felt obligated to work an extra 10 to 12 hours
per week due to short staffing and a ban on overtime. She allegedly
requested that management hire more employees because she was
understaffed and was told that other branches were understaffed as
well, but the bank did not take action.
Sanchez also accused the bank of sexual harassment under the New
Jersey Law Against Discrimination and the state Conscientious
Employee Protection Act, but that claim is not covered by this
settlement.
Sanchez said she experienced a "severe and pervasive sexually
harassing work environment" because of her sex and due to her
suffering from depression and an anxiety disorder.
Have you ever been stiffed on overtime pay from your work? Let us
know in the comments section!
The workers are represented by Justin L. Swidler and Richard S.
Swartz of Swartz Swidler LLC and Stephan T. Mashel and Amy
Blanchfield of Mashel Law LLC. Santander is represented by Chris!na
Tellado and Valerie E. Brown of Holland & Knight LLP.
The case is Sanchez v. Santander Bank et al., Case No.
3:17-cv-05775, in the U.S. District Court for the District of New
Jersey. [GN]
SHATTUCK LABS: Bronstein Gewirtz Reminds of April 1 Deadline
------------------------------------------------------------
Bronstein, Gewirtz & Grossman, LLC notifies investors that a class
action lawsuit has been filed against Shattuck Labs, Inc.
("Shattuck" or the "Company") (NASDAQ: STTK) and certain of its
officers, on behalf of shareholders who purchased or otherwise
acquired Shattuck securities: (a) pursuant and/or traceable to the
registration statement and related prospectus issued in connection
with Shattuck's October 2020 initial public offering (the "IPO" or
"Offering"); and/or (b) between October 9, 2020 and November 9,
2021, both dates inclusive (the "Class Period"). Such investors are
encouraged to join this case by visiting the firm's site:
www.bgandg.com/sttk.
This class action seeks to recover damages against Defendants for
alleged violations of the federal securities laws under the
Securities Exchange Act of 1933 and the Securities Exchange Act of
1934.
The complaint alleges that the materials supporting the IPO and
defendants throughout the Class Period made false and/or misleading
statements and/or failed to disclose that: (1) the Collaboration
Agreement with Takeda was not solid; (2) Takeda and Shattuck would
"mutually agree" to terminate the Collaboration Agreement in
essentially one year; (3) as a result, Shattuck would cease to
receive any future milestone, royalty, or other payments from
Takeda; and (4) as a result, defendants' statements about the
Company's business, operations, and prospects were materially false
and misleading and/or lacked a reasonable basis at all relevant
times.
A class action lawsuit has already been filed. If you wish to
review a copy of the Complaint you can visit the firm's site:
www.bgandg.com/sttk or you may contact Peretz Bronstein, Esq. or
his Investor Relations Analyst, Yael Nathanson of Bronstein,
Gewirtz & Grossman, LLC at 212-697-6484. If you suffered a loss in
Shattuck you have until April 1, 2022, to request that the Court
appoint you as lead plaintiff. Your ability to share in any
recovery doesn't require that you serve as a lead plaintiff.
Bronstein, Gewirtz & Grossman, LLC is a corporate litigation
boutique. Our primary expertise is the aggressive pursuit of
litigation claims on behalf of our clients. In addition to
representing institutions and other investor plaintiffs in class
action security litigation, the firm's expertise includes general
corporate and commercial litigation, as well as securities
arbitration. Attorney advertising. Prior results do not guarantee
similar outcomes. [GN]
SLIDERS INC: Puzone Sues Over Unpaid Wages for Restaurant Servers
-----------------------------------------------------------------
ALEXANDER PUZONE and CARISSA PECKRUL, on behalf of themselves and
all others similarly situated, Plaintiffs v. SLIDERS, INC.; SLIDERS
RESTAURANT GROUP, LLC; SLIDERS MIDDLETOWN, LLC; SLIDERS TORRINGTON,
LLC; SLIDERS WALLINGFORD, LLC; and FRED MARCANTONIO, Defendants,
Case No. HHD-CV22-6152065-S (Conn. Sup. Ct., February 9, 2022) is a
class action against the Defendants for failure to pay the
Plaintiffs and similarly situated servers full minimum wage for all
hours worked in violation of the Connecticut Minimum Wage Act.
Plaintiffs Puzone and Peckrul worked for the Defendants as servers
from February 23, 2019 until March 1, 2020 and from December 2016
until March 2020, respectively.
Sliders, Inc. is a restaurant owner and operator, headquartered in
Southington, Connecticut.
Sliders Restaurant Group, LLC is a restaurant owner and operator,
headquartered in Southington, Connecticut.
Sliders Middletown, LLC is a restaurant owner and operator,
headquartered in Southington, Connecticut.
Sliders Torrington, LLC is a restaurant owner and operator,
headquartered in Southington, Connecticut.
Sliders Wallingford, LLC is a restaurant owner and operator,
headquartered in Southington, Connecticut. [BN]
The Plaintiffs are represented by:
Michael Petela, Esq.
HAYBER, MCKENNA & DINSMORE, LLC
750 Main Street, Suite 904
Hartford, CT 06103
Telephone: (860) 522-8888
Facsimile: (860) 218-9555
E-mail: mpetela@hayberlawfirm.com
SOCLEAN INC: Jenkins Moved From W.D. Missouri to W.D. Pennsylvania
------------------------------------------------------------------
The case styled ROBERT JENKINS, individually and on behalf of all
others similarly situated v. SOCLEAN, INC., Case No. 4:21-cv-00723,
was transferred from the U.S. District Court for the Western
District of Missouri to the U.S. District Court for the Western
District of Pennsylvania on February 9, 2022.
The Clerk of Court for the Western District of Pennsylvania
assigned Case No. 2:22-cv-00241-JFC to the proceeding.
The case arises from the Defendant's alleged breach of express
warranty, breach of implied warranty of merchantability, fraudulent
misrepresentation, fraud by omission, negligent misrepresentation,
unjust enrichment, failure to warn, and medical monitoring by
failing to disclose that its SoClean 2 continuous positive airway
pressure (CPAP) sanitizing machines emit zone.
SoClean, Inc. is a manufacturer of cleaning devices, with its
principal place of business at 12 Vose Farm Road, Peterborough, New
Hampshire. [BN]
The Plaintiff is represented by:
Michael J. Fleming, Esq.
KAPKE & WILLERTH, LLC
3304 NE Ralph Powell Road
Lee's Summit, MO 64064
Telephone: (816) 461-3800
Facsimile: (816) 254-8014
E-mail: mike@kapkewillerth.com
- and –
Bryan T. White, Esq.
WHITE GRAHAM BUCKLEY & CARR
19049 East Valley View Parkway, Ste. C
Independence, MO 64055
Telephone: (816) 373-9080
Facsimile: (816) 373-9319
E-mail: bwhite@wagblaw.com
- and –
John M. Deakle, Esq.
Russell L. Johnson, Esq.
Ronald V. Johnson, Esq.
DEAKLE-JOHNSON LAW FIRM, PLLC
802 N. Main Street
P.O. Box 2072
Hattiesburg, MS 39403
Telephone: (601) 544-0631
Facsimile: (601) 544-0699
E-mail: jmd@deaklelawfirm.com
rljohnson@djlawms.com
rvjohnson@djlawms.com
- and –
Patrick W. Pendley, Esq.
Andrea Barient, Esq.
PENDLEY, BAUDIN & COFFIN
24110 Eden Street
P.O. Drawer 71
Plaquemine, LA 70765
Telephone: (888) 725-2477
Facsimile: (225) 687-6398
E-mail: pwpendley@pbclawfirm.com
abarient@pbclawfirm.com
SOCLEAN INC: Turner Moved From W.D. Missouri to W.D. Pennsylvania
-----------------------------------------------------------------
The case styled JACKIE TURNER, individually and on behalf of all
others similarly situated v. SOCLEAN, INC., Case No. 4:21-cv-00722,
was transferred from the U.S. District Court for the Western
District of Missouri to the U.S. District Court for the Western
District of Pennsylvania on February 9, 2022.
The Clerk of Court for the Western District of Pennsylvania
assigned Case No. 2:22-cv-00243-JFC to the proceeding.
The case arises from the Defendant's alleged breach of express
warranty, breach of implied warranty of merchantability, fraudulent
misrepresentation, fraud by omission, negligent misrepresentation,
unjust enrichment, failure to warn, and medical monitoring by
failing to disclose that its SoClean 2 continuous positive airway
pressure (CPAP) sanitizing machines emit zone.
SoClean, Inc. is a manufacturer of cleaning devices, with its
principal place of business at 12 Vose Farm Road, Peterborough, New
Hampshire. [BN]
The Plaintiff is represented by:
Michael J. Fleming, Esq.
KAPKE & WILLERTH, LLC
3304 NE Ralph Powell Road
Lee's Summit, MO 64064
Telephone: (816) 461-3800
Facsimile: (816) 254-8014
E-mail: mike@kapkewillerth.com
- and –
Bryan T. White, Esq.
WHITE GRAHAM BUCKLEY & CARR
19049 East Valley View Parkway, Ste. C
Independence, MO 64055
Telephone: (816) 373-9080
Facsimile: (816) 373-9319
E-mail: bwhite@wagblaw.com
- and –
John M. Deakle, Esq.
Russell L. Johnson, Esq.
Ronald V. Johnson, Esq.
DEAKLE-JOHNSON LAW FIRM, PLLC
802 N. Main Street
P.O. Box 2072
Hattiesburg, MS 39403
Telephone: (601) 544-0631
Facsimile: (601) 544-0699
E-mail: jmd@deaklelawfirm.com
rljohnson@djlawms.com
rvjohnson@djlawms.com
- and –
Patrick W. Pendley, Esq.
Andrea Barient, Esq.
PENDLEY, BAUDIN & COFFIN
24110 Eden Street
P.O. Drawer 71
Plaquemine, LA 70765
Telephone: (888) 725-2477
Facsimile: (225) 687-6398
E-mail: pwpendley@pbclawfirm.com
abarient@pbclawfirm.com
SPIRIT AEROSYSTEMS: Meitav Dash Appeals Securities Suit Dismissal
-----------------------------------------------------------------
Lead Plaintiff Meitav Dash Provident Funds and Pension Ltd., et
al., filed an appeal from a court ruling entered in the lawsuit
entitled JACOB GOLDMAN, individually and on behalf of all others
similarly situated, Plaintiff v. SPIRIT AEROSYSTEMS HOLDINGS, INC.,
THOMAS C. GENTILE III, JOSE GARCIA, and JOHN GILSON, Defendants,
Case No. 4:20-CV-00054-SPF-JFJ, in the United States District Court
for the Northern District of Oklahoma - Tulsa.
As reported in the Class Action Reporter on Feb. 19, 2020, the
lawsuit is a class action on behalf of all persons or entities who
purchased or otherwise acquired publicly traded Spirit securities
from October 31, 2019 through January 29, 2020, seeking to recover
compensable damages caused by Defendants' violations of the federal
securities laws under the Securities Exchange Act of 1934.
According to the complaint, Spirit filed a Form 10-Q with the SEC
on October 31, 2019, which provided its financial results and
position for the fiscal quarter ended September 26, 2019. However,
the statements were materially false and/or misleading because they
failed to disclose adverse facts pertaining to the Company's
business, operations and prospects.
Additionally, the Company's shares fell $2.56 per share or
approximately 4% on unusually high volume to close at $65.08 per
share as a result of the press release issued by the Company on
January 30, 2020 announcing its failure to comply with its
accounting procedures and the resignation of Defendants Garcia, the
Company's SVP and CFO, and Gilson, its vice president, controller
and principal accounting officer.
The Plaintiff claims that the Defendants' wrongful acts and
omissions, and the precipitous decline in the market value of the
Company's securities have caused significant losses and damages to
Plaintiff and other Class members.
On July 20, 2020, the Plaintiffs filed an amended complaint.
On September 18, 2020, the Defendants filed a motion to dismiss for
failure to state a claim and supporting brief.
On January 7, 2022, Judge Stephen P. Friot entered an order
dismissing with prejudice Plaintiff's consolidated class action
complaint; dismissing/terminating case; granting Defendants' motion
to dismiss for failure to state a claim; and granting Defendants'
motion to dismiss party.
The Plaintiffs seek a review of this order.
The appellate case is captioned as Meitav Dash Provident Funds and
Pension Ltd., et al. v. Spirit AeroSystems Holdings, Inc., et al.,
Case No. 22-5013, in the United States Court of Appeals for the
Tenth Circuit, filed on Feb. 7, 2022.
The briefing schedule in the Appellate Case states that:
-- Docketing statement, transcript order form and notice of
appearance are due on Feb. 22, 2022 for City of Miami Fire Fighters
and Police Officers Retirement Trust, Meitav Dash Provident Funds
and Pension Ltd. and Gary Smith; and
-- Notice of appearance is due on Feb. 22, 2022 for Shawn
Campbell, Jose Garcia, Thomas C. Gentile III, John Gilson and
Spirit AeroSystems Holdings, Inc.[BN]
Plaintiffs-Appellants MEITAV DASH PROVIDENT FUNDS AND PENSION LTD.;
GARY SMITH, individually and on behalf of all others similarly
situated; CITY OF MIAMI FIRE FIGHTERS AND POLICE OFFICERS
RETIREMENT TRUST; and JACOB GOLDMAN, individually and on behalf of
all others similarly situated, are represented by:
Brian Calandra, Esq.
Joseph Alexander Hood, II, Esq.
Jeremy Alan Lieberman, Esq.
POMERANTZ LLP
600 Third Avenue, 20th Floor
New York, NY 10016
Telephone: (212) 661-1100
- and -
James W. Johnson, Esq.
Francis Paul McConville, Esq.
David J. Schwartz, Esq.
Irina Vasilchenko, Esq.
LABATON SUCHAROW
140 Broadway, 34th Floor
New York, NY 10005
Telephone: (212) 907-0700
- and -
James M. Reed, Esq.
John W. Dowdell, Esq.
HALL ESTILL LAW FIRM
320 South Boston Avenue, Suite 200
Tulsa, OK 74103-3706
Telephone: (918) 594-0400
- and -
Patrick V. Dahlstrom, Esq.
POMERANTZ LLP
Ten South La Salle Street, Suite 3505
Chicago, IL 60303
Telephone: (312) 377-1181
- and -
Evan R. Hoey, Esq.
Geoffrey C. Jarvis, Esq.
KESSLER TOPAZ MELTZER & CHECK, LLP
280 King of Prussia Road
Radnor, PA 19087
Telephone: (610) 667-7706
- and -
William B. Federman, Esq.
FEDERMAN & SHERWOOD
10205 North Pennsylvania Avenue
Oklahoma City, OK 73120
Telephone: (405) 235-1560
- and -
Phillip C. Kim, Esq.
Laurence Mathew Rosen, Esq.
ROSEN LAW FIRM
275 Madison Avenue, 34th Floor
New York, NY 10016
Telephone: (212) 686-1060
Defendants-Appellees SPIRIT AEROSYSTEMS HOLDINGS, INC., THOMAS C.
GENTILE, III, JOSE GARCIA, JOHN GILSON, and SHAWN CAMPBELL are
represented by:
R Richard Love, III, Esq.
CONNER & WINTERS
15 East 5th Street
Tulsa, OK 74103
Telephone: (918) 586-5711
- and -
Robert Ritchie, Esq.
VINSON & ELKINS
2001 Ross Avenue, Suite 3900
Dallas, TX 75201-2975
Telephone: (214) 220-7700
- and -
Mary Quinn Cooper, Esq.
Jessica L. Dickerson, Esq.
MCAFEE & TAFT
Williams Tower II
2 West 2nd Street, Suite 1100
Tulsa, OK 74103
Telephone: (918) 587-0000
- and -
Andrew Rodgers, Esq.
Patrick Joseph Smith, Esq.
SMITH VILLAZOR LLP
250 West 55th Street, 30th Floor
New York, NY 10019
- and -
Spencer F. Smith, Esq.
MCAFEE & TAFT
211 North Robinson
Eighth Floor, Two Leadership Square
Oklahoma City, OK 73102
Telephone: (405) 235-9621
- and -
John Christopher Davis, Esq.
JOHNSON & JONES
6120 South Yale Avenue, Suite 500
Tulsa, OK 74136
Telephone: (918) 584-6644
- and -
Carrington Giammittorio, Esq.
HAYNES AND BOONE
2323 Victory Avenue, Suite 700
Dallas, TX 75219
Telephone: (214) 651-5000
- and -
Daniel Gold, Esq.
SHEARMAN & STERLING LLP
2828 North Harwood Street
Dallas, TX 75201
STYLE MANAGEMENT: Faces Cerrato Wage-and-Hour Suit in S.D.N.Y.
--------------------------------------------------------------
RONALD CERRATO GALAN, individually and on behalf of all others
similarly situated, Plaintiff v. STYLE MANAGEMENT CO., INC., ANDREW
ROSENBERG, and STEFANIE ROSENBERG, Defendants, Case No.
1:22-cv-01137 (S.D.N.Y., February 9, 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
wages, failure to pay overtime wages, failure to furnish accurate
wage notice, and failure to furnish accurate wage statements.
Mr. Cerrato was employed as a non-exempt parking garage attendant,
cleaner and laborer from early 2011 through March 2020 and again
from July 2020 until August 2021.
Style Management Co., Inc. is an owner and operator of a taxi cab
vehicle renting and leasing business, with its principal place of
business at 518 West 44th Street, New York, New York. [BN]
The Plaintiff is represented by:
David D. Barnhorn, Esq.
Peter A. Romero, Esq.
LAW OFFICE OF PETER A. ROMERO PLLC
490 Wheeler Road, Suite 250
Hauppauge, NY 11788
Telephone: (631) 257-5588
SURFSIDE COFFEE: Campbell Suit Alleges Unpaid OT for Store Managers
-------------------------------------------------------------------
TRAVIS CAMPBELL, individually and on behalf of all others similarly
situated, Plaintiff v. SURFSIDE COFFEE COMPANY LLC and CHRISTOPHER
MELLGREN, Defendants, Case No. 2:22-cv-00090-SPC-MRM (M.D. Fla.,
February 9, 2022) is a class action against the Defendants for
violation of the Fair Labor Standards Act by failing to compensate
the Plaintiff and similarly situated store managers overtime pay
for all hours worked in excess of 40 hours in a workweek.
The Plaintiff worked as a store manager at the Defendants' Dunkin'
Donut store in Florida.
Surfside Coffee Company LLC is an owner and operator of Dunkin'
Donuts stores in and around Ft. Myers and southern Florida. [BN]
The Plaintiff is represented by:
Maria R. Alaimo, Esq.
VILES & BECKMAN, LLC
6350 Presidential Court Suite A
Fort Myers, FL 33919
Telephone: (239) 334-3933
Facsimile: (239) 334-7105
E-mail: Maria@vilesandbeckman.com
Stefanie@vilesanbeckman.com
T-MAC PIZZA: Jimenez Seeks Minimum Wages for Delivery Drivers
-------------------------------------------------------------
Phillip Jimenez, On behalf of himself and those similarly situated
v. T-Mac Pizza, LLC, James Haydon, Natalie Haydon, Case No.
1:22-cv-00366 (D. Colo., Feb. 9, 2022) is a class and collective
action complaint based on the Defendants' compensation and
reimbursement policies at the Defendants' Domino's Pizza stores.
According to the complaint, the Defendants have repeatedly and
willfully violated the Fair Labor Standards Act and the Colorado
Minimum Wage Act by failing to adequately reimburse delivery
drivers for their delivery-related and other work-related expenses,
thereby failing to pay delivery drivers the legally mandated
minimum wage for all hours worked.
The Defendants have also repeatedly and willfully violated the
Colorado Wage Claim Act, by taking unauthorized deductions from the
delivery drivers wages and failing to pay all wage and compensation
earned by the delivery drivers in a timely manner, says the suit.
The Plaintiff seeks to represent the suit on behalf of delivery
drivers who use personal vehicles to deliver Domino's pizzas and
other foods to Defendants' customers.
The Defendants own and operate multiple Domino's Pizza franchise
stores (the "T- Mac Domino's stores").[BN]
The Plaintiff is represented by:
Andrew R. Biller, Esq.
Andrew P. Kimble, Esq.
BILLER & KIMBLE, LLC
8044 Montgomery Road, Suite 515
Cincinnati, OH 45236
Telephone: (513) 202-0710
E-mail: abiller@billerkimble.com
akimble@billerkimble.com
TALKSPACE INC: Pomerantz Law Firm Reminds of June 17 Deadline
-------------------------------------------------------------
Pomerantz LLP on Feb. 6 disclosed that a class action lawsuit has
been filed against Talkspace, Inc. ("Talkspace" or the "Company")
f/k/a Hudson Executive Investment Corporation ("HEIC") (NASDAQ:
TALK; TALKW; HEC; HECCW; HECCU) and certain of its officers and
directors. The class action, filed in the United States District
Court for the Southern District of New York, and docketed under
22-cv-00840, is on behalf of a class consisting of all persons and
entities other than Defendants that purchased or otherwise acquired
Talkspace securities between June 11, 2020 and November 15, 2021,
both dates inclusive (the "Class Period"), and/or (b) all holders
of Talkspace common stock as of the record date for the special
meeting of shareholders held on June 17, 2021 to consider approval
of the merger between HEIC and Talkspace (the "Merger") and
entitled to vote on the Merger (the "Class"); seeking to recover
damages caused by Defendants' violations of the federal securities
laws and to pursue remedies under Sections 10(b), 14(a), and 20(a)
of the Securities Exchange Act of 1934 (the "Exchange Act") and
Rules 10b-5 and 14a-9 promulgated thereunder, against Defendants,
and arising from the materially false or misleading statements or
omissions issued during the Class Period and in the proxy statement
issued in connection with the Merger (the "Proxy").
If you are a shareholder who purchased Talkspace securities during
the Class Period, and/or held Talkspace common stock as of the
record date for the special meeting of shareholders held on June
17, 2021 to consider approval of the Merger and were entitled to
vote on the Merger, you have until March 8, 2022 to ask the Court
to appoint you as Lead Plaintiff for the class. A copy of the
Complaint can be obtained at www.pomerantzlaw.com. To discuss this
action, contact Robert S. Willoughby at newaction@pomlaw.com or
888.476.6529 (or 888.4-POMLAW), toll-free, Ext. 7980. Those who
inquire by e-mail are encouraged to include their mailing address,
telephone number, and the number of shares purchased.
Talkspace began as HEIC, a blank check company. A blank check
company is sometimes referred to as a special purpose acquisition
company-or "SPAC"-and does not initially have any operations or
business of its own. Rather, it raises money from investors in an
initial public offering and then uses the proceeds from the
offering to acquire a business or operational assets, usually from
a private company that does not publicly report financial or
operating results. As a result, investors in blank check companies
rely on the skill, transparency, and honesty of the blank check
company's sponsor to spend the offering proceeds to acquire a
fundamentally sound target company that offers attractive
risk-adjusted returns for investors.
Talkspace is a behavioral healthcare company that markets itself as
being enabled by a "purpose-built technology platform." Talkspace
provides individuals and licensed therapists, psychologists, and
psychiatrists with an online platform for one-on-one therapy
delivered via messaging, audio, and video. Talkspace's platform
serves two different business channels: (i) business-to-consumer
("B2C"), comprised of individual consumers who subscribe directly
on Talkspace's platform; and (ii) business-to-business ("B2B"),
comprised of large enterprise clients who offer their employees and
insured members access to Talkspace's platform for free or at
in-network reimbursement rates, respectively.
On January 13, 2021, HEIC issued a press release announcing that it
had entered into a merger agreement with Talkspace. As a result of
the Merger, the owners of the pre-Merger Talkspace business were
expected to own approximately 50.8% of the common stock of the
combined Company, on a fully diluted net exercise basis.
Throughout the Class Period, Defendants made materially false and
misleading statements regarding the Company's business, operations,
and prospects. Additionally, the Proxy omitted and/or
misrepresented material information. Specifically, Defendants and
the Proxy made false and/or misleading statements and/or failed to
disclose that: (i) HEIC had overstated its competitive advantage
and due diligence capabilities with respect to identifying and
effectuating a merger with target companies; (ii) HEIC had
conducted inadequate due diligence into then-private, pre-Merger
Talkspace, or else ignored and/or failed to disclose multiple red
flags concerning then-private, pre-Merger Talkspace's business and
operations; (iii) Talkspace was experiencing significantly
increased online advertising costs in its B2C business since the
beginning of 2021; (iv) Talkspace was experiencing lower conversion
rates in its online advertising in its B2C business; (v) as a
result of (iii) and (iv) above, Talkspace was experiencing
increased customer acquisition costs and more tepid B2C demand than
represented to investors; (vi) as a result of (iii)-(v) above,
Talkspace was suffering from ballooning customer acquisition costs
and worsening growth and gross margin trends; (vii) Talkspace had
overvalued its accounts receivables from certain of its health plan
clients in its B2B business, which amounts required adjustment
downward; and (viii) as a result of (iii)-(vii) above, Talkspace's
2021 financial guidance was not achievable and lacked any
reasonable basis in fact.
On the basis of the defective Proxy, on June 17, 2021, HEIC
shareholders voted to approve the Merger at a special shareholder
meeting. Following the consummation of the Merger on June 22, 2021,
HEIC changed its name to "Talkspace, Inc."
On August 9, 2021, after the market closed, HEIC, which had been
renamed Talkspace following the June 22, 2021 Merger close, issued
a press release announcing the Company's financial results for the
second quarter of 2021 ("Q2 2021"). That same day, Talkspace held a
conference call to discuss the Company's Q2 2021 results. On the
call, Defendants revealed some issues relating to increased
customer acquisition costs due to rising digital advertising costs
while downplaying their impact, and confirmed a material increase
in customer acquisition costs since the beginning of the year.
On this news, Talkspace's stock price fell $1.11 per share, or
18.72%, to close at $4.82 per share on August 10, 2021. Despite
this decline in the Company's stock price, Talkspace securities
continued to trade at artificially inflated prices throughout the
remainder of the Class Period as a result of Defendants' continued
misstatements or omissions regarding Talkspace's true financial
condition and prospects.
Then, on November 15, 2021, after the market closed, Talkspace
issued a press release announcing the Company's financial results
for the third quarter of 2021 ("Q3 2021"). The press release
disclosed, inter alia, that "[i]n the third quarter we increased
the allowance for credit losses on receivables by $3.4 million, of
which $2.8 million related to prior quarters"; that a "slowdown in
the B2C business resulted in part from delays in launching new
products and features, as well as a decline in conversion rates";
that "[g]ross profit was $14.2 million in the third quarter,
compared to $15.1 million in the prior-year quarter"; that "[g]ross
margin was 54% compared to 70% a year ago"; and that "[t]his
decline was due to the increase in the reserve for credit losses on
receivables, revenue mix shift towards B2B, and continued
investment in W2 therapist network."
In a separate press release issued the same day, Talkspace
announced that, effective immediately, Defendant Oren Frank was
stepping down from his position as Chief Executive Officer and as a
member of Talkspace's Board of Directors. Likewise, his wife Roni
Frank was stepping down from her position as Head of Clinical
Services and a Board member, effective that day.
Talkspace also held a conference call after the market had closed
to discuss the Company's disappointing Q3 2021 results. In his
prepared remarks, Defendant Douglas L. Braunstein acknowledged:
"[T]he overall financial results for the third quarter came in
below expectations management shared with investors on our last
earnings call. We are obviously disappointed by this performance,
and we have to do better."
Following these press releases and the Q3 2021 conference call,
Talkspace's stock price fell $1.23 per share, or 36.28%, to close
at $2.16 per share on December 16, 2021.
Subsequent to, and due to, the closing of the Merger, the price of
Talkspace common stock declined precipitously as the truth about
Talkspace and the Proxy's false and misleading nature were revealed
over time. By December 30, 2021, the price of Talkspace common
stock was trading below $2 per share, 80% below the price
shareholders would have received if they had redeemed their shares
instead of approving the Merger less than one year earlier.
Pomerantz LLP, with offices in New York, Chicago, Los Angeles,
Paris, and Tel Aviv, is acknowledged as one of the premier firms in
the areas of corporate, securities, and antitrust class litigation.
Founded by the late Abraham L. Pomerantz, known as the dean of the
class action bar, Pomerantz pioneered the field of securities class
actions. Today, more than 85 years later, Pomerantz continues in
the tradition he established, fighting for the rights of the
victims of securities fraud, breaches of fiduciary duty, and
corporate misconduct. The Firm has recovered numerous
multimillion-dollar damages awards on behalf of class members. See
www.pomlaw.com. [GN]
TILRAY INC: Moves to Dismiss Cannabis Securities Class Action
-------------------------------------------------------------
lawstreetmedia.com reports that Tilray, Inc., Brendan Kennedy and
Mark Castaneda filed a motion to dismiss the plaintiffs' second
amended complaint in the case of Kasilingam, et al. v. Tilray Inc.
in the Southern District of New York.
According to the motion, Tilray is a global pioneer in what is
expected to be a $150 billion cannabis industry. It further states
that Tilray was the first medical cannabis producer with a Good
Manufacturing Practices certified production facility in North
America, the first producer to export medical cannabis to Africa,
Australia, Europe and Latin America and among the first medical
cannabis companies to be licensed in two countries. Additionally,
the motion purports that Tilray was the first cannabis company to
have an initial public offering and to trade on the NASDAQ, with
its July 2018 IPO.
The lead plaintiff filed the present suit on behalf of himself and
all other individuals who purchased Tilray common stock on the
NASDAQ from January 16, 2019 through March 2, 2020 alleging
violations of the Securities Exchange Act.
Specifically, the second amended complaint alleges that Tilray's
CEO Brendan Kennedy misled investors about Tilray's revenue and
financial security resulting in a 95% decrease in share value for
investors who purchased Tilray stock during the January 16, 2019
through March 2, 2020 period. The plaintiffs argue that, despite
the drop in share price, Kennedy's misleading statements were part
of a long con to effectuate two separate mergers to make Tilray the
largest cannabis company in the world.
The plaintiffs argue that Kennedy told reporters and investors that
the cannabis market was in its infancy and would reach sales of
$200 billion per year. Further, the complaint states that Kennedy
informed investors that, like the beer market, the cannabis market
would be dominated by three or four giant companies and that
Kennedy would make it so Tilray was one of those giants.
The motion to dismiss states that the second amended complaint is
the plaintiffs' "third failed attempt to cobble together a coherent
case." The motion purports that on September 27, 2021, the court
dismissed the plaintiffs' first amended complaint stating that it
"failed to adequately plead scienter" and that the allegations were
"vague, speculative, and conclusory."
Further, the motion to dismiss states that the original complaint
alleged a theory that Kennedy made the challenged statements to
inflate Tilray's stock price to effectuate just a single downstream
merger. The defendants argue that the court must dismiss the second
amended complaint because the court found that the first amended
complaint did not adequately allege facts to support a single
downstream merger, and the plaintiffs have failed to provide
additional facts to support the "even more preposterous theory"
that Kennedy planned to effectuate two separate mergers. [GN]
TOFTE WASTEWATER: Faces Suit Over Unlawful Wastewater Discharges
----------------------------------------------------------------
CLEAN WATER AND AIR, LLC, individually and on behalf of all others
similarly situated, Plaintiff v. TOFTE WASTEWATER TREATMENT
ASSOCIATION D/B/A BLUEFIN BAY ON LAKE SUPERIOR WWTP, Defendant,
Case No. 0:22-cv-00386-JRT-LIB (D. Minn., February 9, 2022) is a
class action against the Defendant for violation of the federal
Clean Water Act, public nuisance, and negligence.
According to the complaint, the Defendant violated the terms of its
Clean Water Act National Pollutant Discharge Elimination System
(NPDES) permit by discharging wastewater directly into Lake
Superior above the allowed pollutant levels. The Defendant
allegedly discharges of mercury, fecal matter, coliform and
suspended solids or other pollution into Lake Superior. The
Plaintiff and other individuals who have visited Tofte Town Park
suffered damage or injury as a result of the Defendant's unlawful
pollution of Lake Superior.
Clean Water and Air, LLC is an organization formed for the purpose
of advocating for clean waterways and air and the preservation of
natural resources.
Tofte Wastewater Treatment Association, doing business as Bluefin
Bay on Lake Superior WWTP, is an association based in Minnesota.
[BN]
The Plaintiff is represented by:
Patrick W. Michenfelder, Esq.
Chad A. Throndset, Esq.
THRONDSET MICHENFELDER, LLC
Cornerstone Building
One Central Avenue West, Suite 101
St. Michael, MN 55376
Telephone: (763) 515-6110
Facsimile: (763) 226-2515
E-mail: pat@throndsetlaw.com
chad@throndsetlaw.com
TOYOTA MOTOR: Davis Sues Over Venza Vehicle's Windshield Defect
---------------------------------------------------------------
HEATHER A. DAVIS and ROBERT SWEENY, individually and on behalf of
all others similarly situated, Plaintiffs v. TOYOTA MOTOR SALES,
U.S.A., INC., Defendant, Case No. 4:22-cv-00090-SDJ (E.D. Tex.,
February 9, 2022) is a class action against the Defendant for
breach of implied and express warranties pursuant to the
Magnuson-Moss Warranty Act and the Texas Business & Commercial
Code, and Arizona Revised Statute, fraudulent concealment, unjust
enrichment, and violations of the Texas Deceptive Practices Act and
the Arizona Consumer Fraud Act.
The case arises from the Defendant's alleged marketing and sale of
2021 Toyota Venza vehicles with defective windshields. The
vehicles' defect causes the windshields to crack, chip and/or
fracture. The Defendant has refused to repair or replace the
defective windshields in the vehicles under Toyota's warranty,
requiring that vehicle owners pay hundreds or thousands of dollars
to repair the defect. As a result of the Plaintiffs' and Class
members' reliance on the Defendant's omissions and
misrepresentations, they have suffered ascertainable loss of money,
property, and/or loss in value of their Class vehicles, says the
suit.
Toyota Motor Sales, U.S.A., Inc. is an automobile manufacturer,
headquartered in Plano, Texas. [BN]
The Plaintiffs are represented by:
Jody B. Burton, Esq.
LEMBERG LAW, L.L.C.
43 Danbury Road
Wilton, CT 06897
Telephone: (203) 653-2250
Facsimile: (203) 653-3424
UNITED BEHAVIORAL: Appeals Atty.'s Fees & Costs Awarded in Wit Suit
-------------------------------------------------------------------
Defendant United Behavioral Health filed an appeal from a court
ruling entered in the lawsuit entitled DAVID WIT, et al.,
Plaintiffs, v. UNITED BEHAVIORAL HEALTH, Defendant, GARY ALEXANDER,
et al., Plaintiffs, v. UNITED BEHAVIORAL HEALTH, Defendant, Case
No. 3:14-cv-02346-JCS, in the U.S. District Court for the Northern
District of California, San Francisco.
Defendant United Behavioral Health (UBH), which also operates as
OptumHealth Behavioral Solutions, administers mental health and
substance use disorder benefits for commercial welfare benefit
plans. In that capacity, it has developed Level of Care Guidelines
and Coverage Determination Guidelines that it uses for making
coverage determinations. Plaintiffs in related class actions assert
claims under the Employee Retirement Income Security Act of 1974
(ERISA), alleging that they were improperly denied benefits for
treatment of mental health and substance use disorders because
UBH's Guidelines do not comply with the terms of their insurance
plans and/or state law.
The Plaintiffs assert two claims: 1) breach of fiduciary duty
(Breach of Fiduciary Duty Claim) and 2) arbitrary and capricious
denial of benefits (Denial of Benefits Claim). Plaintiffs assert
the Breach of Fiduciary Duty Claim under 29 U.S.C. Section
1132(a)(1)(B) (Count I in all of the operative complaints) and, to
the extent the injunctive relief Plaintiffs seek is unavailable
under that section, they assert the claim under 29 U.S.C. Section
1132(a)(3)(A) (Count III in all of the operative complaints).
On November 24, 2020, the Plaintiffs filed a motion for Attorney
Fees.
As reported in the Class Action Reporter on Jan. 17, 2022, Chief
Magistrate Judge Joseph C. Spero of the U.S. District Court for the
Northern District of California granted in part and denied in part
the Plaintiffs' Petition for Attorneys' Fees and Costs. The Court
awarded $19,628,071.88 in attorneys' fees and $1,230,729.86 in
costs.
The Defendant seeks a review of this order.
The appellate case is captioned as United Behavioral Health v.
David Wit, et al., Case No. 22-15184, in the United States Court of
Appeals for the Ninth Circuit, filed on Feb. 7, 2022.
The briefing schedule in the Appellate Case states that:
-- Appellant United Behavioral Health Mediation Questionnaire
was due Feb. 14, 2022;
-- Transcript shall be ordered by March 7, 2022;
-- Transcript is due on April 7, 2022;
-- Appellant United Behavioral Health opening brief is due on
May 16, 2022;
-- Appellees Gary Alexander, Lori Flanzraich, David Haffner,
Cecilia Holdnak, Mary Jones, Corinna Klein, Brian Muir, Brandt
Pfeifer, Linda Tillitt, David Wit and Natasha Wit answering brief
is due on June 16, 2022; and
-- Appellant's optional reply brief is due 21 days after service
of the answering brief.[BN]
Defendant-Appellant UNITED BEHAVIORAL HEALTH is represented by:
Nathaniel Philip Bualat, Esq.
Thomas F. Koegel, Esq.
CROWELL & MORING, LLP
3 Embarcadero Center, 26th Floor
San Francisco, CA 94111
Telephone: (415) 365-7294
- and -
Jennifer S. Romano, Esq.
Andrew Holmer, Esq.
CROWELL & MORING, LLP
515 S Flower Street, 40th Floor
Los Angeles, CA 90071
- and -
April N. Ross, Esq.
CROWELL & MORING, LLP
1001 Pennsylvania Avenue, NW
Washington, DC 20004
Telephone: (202) 624-2500
Plaintiffs-Appellees DAVID WIT; NATASHA WIT; BRIAN MUIR; BRANDT
PFEIFER, on behalf of the Estate of his deceased wife, Lauralee
Pfeifer; LORI FLANZRAICH, on behalf of her daughter Casey
Flanzraich; CECILIA HOLDNAK, on behalf of herself, her daughter
Emily Holdnak; GARY ALEXANDER, on his own behalf and on behalf of
his beneficiary son, Jordan Alexander; CORINNA KLEIN; and DAVID
HAFFNER, on behalf of themselves and all others similarly situated,
are represented by:
Adam Abelson, Esq.
ZUCKERMAN SPAEDER LLP
100 E. Pratt Street, Suite 2440
Baltimore, MD 21202
Telephone: (410) 949-1148
- and -
Meiram Bendat, Esq.
MEIRAM BENDAT
7 West Figueroa Street, Suite 300 PMB #300059
Santa Barbara, CA 93101
Telephone: (310) 598-3690
- and -
Jason Cowart, Esq.
Brian Hufford, Esq.
ZUCKERMAN SPAEDER LLP
485 Madison Avenue, 10th Floor
New York, NY 10022
Telephone: (212) 704-9600
- and -
Andrew N. Goldfarb, Esq.
David A. Reiser, Esq.
Caroline E. Reynolds, Esq.
ZUCKERMAN SPAEDER LLP
1800 M Street, NW
Washington, DC 20036
Telephone: (202) 778-1800
Intervenors-Plaintiffs-Appellees LINDA TILLITT and MARY JONES are
represented by:
Adam Abelson, Esq.
ZUCKERMAN SPAEDER LLP
100 E. Pratt Street, Suite 2440
Baltimore, MD 21202
Telephone: (410) 949-1148
- and -
Meiram Bendat, Esq.
MEIRAM BENDAT
7 West Figueroa Street, Suite 300 PMB #300059
Santa Barbara, CA 93101
Telephone: (310) 598-3690
- and -
Jason Cowart, Esq.
Brian Hufford, Esq.
ZUCKERMAN SPAEDER LLP
485 Madison Avenue, 10th Floor
New York, NY 10022
Telephone: (212) 704-9600
- and -
Andrew N. Goldfarb, Esq.
David A. Reiser, Esq.
Caroline E. Reynolds, Esq.
ZUCKERMAN SPAEDER LLP
1800 M Street, NW
Washington, DC 20036
Telephone: (202) 778-1800
UNITED BEHAVIORAL: Appeals Atty.'s Fees, Costs Awarded in Alexander
-------------------------------------------------------------------
Defendant United Behavioral Health filed an appeal from a court
ruling entered in the lawsuit entitled GARY ALEXANDER, et al., the
Plaintiffs v. UNITED BEHAVIORAL HEALTH, the Defendant, Case No.
3:14-cv-05337-JCS, in the U.S. District Court for the Northern
District of California, San Francisco.
As previously reported in the Class Action Reporter, the Defendant
United Behavioral Health (UBH), which also operates as OptumHealth
Behavioral Solutions, administers mental health and substance use
disorder benefits for commercial welfare benefit plans. In that
capacity, it has developed Level of Care Guidelines and Coverage
Determination Guidelines (Guidelines) that it uses for making
coverage determinations. Plaintiffs in these related class actions
assert claims under the Employee Retirement Income Security Act of
1974 (ERISA), alleging that they were improperly denied benefits
for treatment of mental health and substance use disorders because
UBH's Guidelines do not comply with the terms of their insurance
plans and/or state law.
The Defendants now seeks a review of the Court Order granting in
part Plaintiffs' petition for attorneys' fees and costs entered on
January 5, 2022.
The appellate case is captioned as United Behavioral Health v. Gary
Alexander, et al., Case No. 22-15186, in the United States Court of
Appeals for the Ninth Circuit, filed on Feb. 7, 2022.
The briefing schedule in the Appellate Case states that:
-- Appellant United Behavioral Health Mediation Questionnaire
was due Feb. 14, 2022;
-- Transcript shall be ordered by March 7, 2022;
-- Transcript is due on April 7, 2022;
-- Appellant United Behavioral Health opening brief is due on
May 16, 2022;
-- Appellees' answering brief is due on June 16, 2022; and
-- Appellant's optional reply brief is due 21 days after service
of the answering brief.[BN]
WELLS FARGO: To Pay $40.3MM to Settle Mortgage Class Action Suit
----------------------------------------------------------------
jdsupra.com reports that a $40.3 million class-action settlement
was recently approved between a large national bank and a class of
plaintiffs who claimed that the bank wrongly denied them loan
modifications, which resulted in foreclosure of their homes.
The borrowers claim that from 2010 through 2018, the bank made an
error in its calculations for some borrowers that caused them to be
denied a loan modification when they were in fact entitled to one
under the Home Affordable Modification Plan. Under HAMP,
participating mortgage servicers were incentivized to modify
eligible mortgages in order to avoid foreclosure.
The bank had twice previously detected this error in its
calculation software, and in 2018 it implemented a comprehensive
fix, publicized the error, and contacted certain homeowners to
provide an apology and between $5,000 and $15,000 in compensation.
Under the approved settlement, each borrower is entitled to between
$14,000 and $116,502 in payments for economic damages, depending on
their unpaid principal balance, the amount of time they were
delinquent in payments, and any payment they had already received
from the bank in remediation.
The case is Hernandez et al. v. Wells Fargo Bank NA et al., case
number 3:18-cv-07354, in the U.S. District Court for the Northern
District of California. [GN]
WILLINGBORO, NJ: Faces Suit Over Cancer-Causing Chemicals in Water
------------------------------------------------------------------
burlingtoncountytimes.com reports that a woman who cares for her
great-grandchildren is suing the Willingboro Municipal Utilities
Authority for money she spent after receiving a notice that levels
of a cancer-causing chemical, PFOS, found in her tap water violated
the legal standard.
Attorneys for the woman are now seeking class action status,
arguing other residents incurred expenses following the directive
of the WMUA and are not responsible for the carcinogen found in the
tap water.
"People stopped using the water about a month later but over that
period of time after people already got the notice to when they
stopped pulling it from the contaminated well they had told people
you should go see a doctor, you should buy bottled water, if you're
elderly, if you're an infant, if you're immunocompromised, if
you're pregnant do not drink the water. said co-counsel Stephen
DeNittis, of the Marlton-based firm DeNittis Osefchen & Prince.
The WMUA has not responded to requests for comment on the suit.
The WMUA told customers in a Dec. 1 notice that sampling showed the
water system had exceeded the state standard of the
perfluorooctanesulfonic acid maximum contaminant level. The notice
advised certain groups of customers, including the elderly, the
immune compromised, and those with specific health concerns, to
consult with their doctor and encouraged using bottled water to
prepare beverages for infants and drinking or cooking.
Carrie Dempsey, 76, filed the suit. She says she followed the
WMUA's advice to consult her doctor, according to the suit. Dempsey
also started buying bottled water as she regularly prepares
beverages and meals for her nine month old great-grandchild.
"They didn't offer any of them any type of compensation to
reimbursement for those things," added DeNittis. [GN]
ZURICH AMERICAN: Big Red Appeals Insurance Suit Dismissal
---------------------------------------------------------
Plaintiff Big Red Management Corp. filed an appeal from a court
ruling entered in the lawsuit entitled BIG RED MANAGEMENT CORP., on
behalf of itself and all others similarly situated, Plaintiff, v.
ZURICH AMERICAN INSURANCE COMPANY, Defendant, Case No.
2:20-cv-02113-KSM, in the United States District Court for the
Eastern District of Pennsylvania.
As reported in the Class Action Reporter on May 25, 2020, the
lawsuit alleges that Big Red has suffered business losses for which
coverage is afforded under its Property Portfolio Protection,
General Liability Coverage and Business Automobile, Business
Protection Policies, issued by Zurich in connection with the
current coronavirus pandemic and the civil actions taken by
governmental authorities in efforts to quell the COVID-19
Pandemic.
As a consequence of the Pandemic (including specifically damage to
property caused by the coronavirus), and the various Orders issued
in the Commonwealth, the Plaintiff and the Additional Insureds have
suffered Covered Losses under the Policy. The Defendants have,
however, wrongfully repudiated coverage under the Policy for such
Covered Losses suffered by the Plaintiff and the Additional
Insureds, the Plaintiff contends.
On March 16, 2020, the City of Philadelphia announced the closure
of non-essential businesses, including restaurants like the
Plaintiff. On March 22, 2020, Philadelphia Mayor Jim Kenney issued
an Emergency Order Temporarily Prohibiting Operation of
Non-Essential Businesses and Congregation of Persons to Prevent the
Spread of 2019 Novel Coronavirus.
The Plaintiff purchased policy CPO-0171641-05, effective July 1,
2019, to July 1, 2020. This was a renewal from policy CPO
0171641-04. The Plaintiff purchased the Business Protection
Policies issued by Zurcich paying a total premium in excess of
$300,000, says the complaint.
On September 2, 2020, the Plaintiff filed an amended complaint.
On January 7, 2022, the Honorable Karen S. Marston entered an order
granting Defendant's motion to dismiss Plaintiff's amended
complaint.
The Plaintiff now seeks a review of this order.
The appellate case is captioned as Big Red Management Corp. v.
Zurich American Insurance Co., Case No. 22-1230, in the United
States Court of Appeals for the Third Circuit, filed on Feb. 8,
2022.[BN]
Plaintiff-Appellant BIG RED MANAGEMENT CORP, on behalf of itself
and all others similarly situated, is represented by:
Daniel E. Bacine, Esq.
Jeffrey A. Barrack, Esq.
Mark R. Rosen, Esq.
Meghan J. Talbot, Esq.
BARRACK RODOS & BACINE
2001 Market Street, 38th Floor
3300 Two Commerce Square
Philadelphia, PA 19103
Telephone: (215) 963-0600
- and -
Stephen R. Basser, Esq.
BARRACK, RODOS & BACINE
600 West Broadway, Suite 1700
San Diego, CA 92101
Telephone: (619) 230-0800
Defendant-Appellee ZURICH AMERICAN INSURANCE CO. is represented
by:
Eric D. Freed, Esq.
Stephen S. Kempa, Esq.
COZEN O'CONNOR
1650 Market Street
One Liberty Place, Suite 2800
Philadelphia, PA 19103
Telephone: (215) 665-3724
- and -
Patrick F. Hofer
Gabriela Richeimer, Esq.
CLYDE & CO
1775 Pennsylvania Avenue, N.W., Suite 400
Washington, DC 20006
Telephone: (202) 747-5110
- and -
Archis A. Parasharami, Esq.
Evan M. Tager, Esq.
MAYER BROWN
1999 K Street, N.W.
Washington, DC 20006
Telephone: (202) 263-3000
- and -
Bronwyn F. Pollock, Esq.
Douglas A. Smith, Esq.
MAYER BROWN
350 South Grand Avenue, 25th Floor
Los Angeles, CA 90071
Telephone: (213) 229-5194
[*] Class Action Over Alleged Illegal Background Check Can Proceed
------------------------------------------------------------------
PreEMPLOY reports that a U.S. District Court judge in New York has
ruled that a convicted murderer who served almost 23 years in
prison can sue over being turned down for a delivery driver job. In
the court's decision, it stated that the plaintiff might pursue a
class action suit after being turned down for a position delivering
groceries to people's homes by a logistics provider.
In this case, one of the multiple companies being targeted in the
suit conducted a background check on the plaintiff and found that
he had lied about having no criminal history. The plaintiff had
been previously convicted of second-degree murder, and the
logistics provider to which he had applied turned him down for the
position.
The plaintiff then filed a class-action suit against the logistic
provider and multiple of the related companies to which they
provided services. The class to which the plaintiff will represent
is all individuals with criminal histories which the companies have
turned down in violation of New York's law which forbids employers
from rejecting applicants due to criminal history that is not
directly related to the positions for which they are applying or
would pose an unreasonable danger to the public.
Though the judge declined to rule on the merits of the case, they
did find that the defendants had failed in demonstrating that
either of these two exceptions would apply and that the plaintiff
had successfully shown that he had been rehabilitated and does not
pose an unreasonable risk to the general public. However, the judge
did express sympathy to the idea that the defendants may not want a
convicted murderer to deliver to the homes of their customers.
The multiple companies being targeted in this suit outside of the
logistics company to which the plaintiff applied attempted to file
a motion for dismissal, arguing both that the employee was turned
down for lying on his application and that they could not be sued
because they were not the prospective employers. Both of these
arguments were rejected by the court.
The court found that the plaintiff had "barely" demonstrated that
all of the companies had sufficient control over hiring decisions
to make them prospective employers. Though, the court warned that
this might not survive through summary judgment. Additionally, the
court found that it was too early to consider the motivations for
rejecting the employee, which would better be done either at a
motion for summary judgment or during a trial. However, at this
juncture, the court found that the criminal history of the
applicant does not appear to have a bearing on his ability to
perform the job.
This illustrates the importance of considering all local, state,
and federal laws in making decisions based on criminal history and
working with a background check provider you can trust to assist
you in complying with applicable laws. [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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