/raid1/www/Hosts/bankrupt/CAR_Public/220222.mbx
C L A S S A C T I O N R E P O R T E R
Tuesday, February 22, 2022, Vol. 24, No. 32
Headlines
23 Essex Realty: Gannon Files ADA Suit in S.D. New York
A&E TELEVISION: Paguada Files ADA Suit in S.D. New York
ACCESS USA: Paguada Files ADA Suit in S.D. New York
ACCUTECH SYSTEMS: Medvigy Files Suit in S.D. California
ACUITY BRANDS: $15.75-Mil. Settlement to be Heard on June 3
ADVANCE AUTO: $49.25MM Settlement to be Heard on June 13
AH-HA CHOCOLATES: Hancock Sues Over Failure to Pay Wages
ALL STAR INNOVATIONS: Paguada Files ADA Suit in S.D. New York
ALLTRAN FINANCIAL: Brown Suit Remanded to Guilford Superior Court
AMERICAN SUGAR: Smith Suit Returned to St. Bernard State Court
ART.COM INC: Paguada Files ADA Suit in S.D. New York
ASSERTIO THERAPEUTICS: Bid to Seal Docs in Glumetza Suit Granted
BEACH HOUSE: Nygaard Bid to Certify Class Nixed
BEAUTY-LAB LLC: Abreu Files ADA Suit in S.D. New York
BIOGEN INC: Seeks to Dismiss Securities Suit Pending in D. Mass.
BRADLEY UNIVERSITY: Response to Class Cert. Bid Due May 12
BRENNER CAR: Order Overruling Objections to Arbitration Bid Upheld
BROCK GROUP: Scheduling Order Entered in Valentic Class Suit
BUNCH BIKES: Weekes Files ADA Suit in S.D. New York
CALIFORNIA OLIVE: Paguada Files ADA Suit in S.D. New York
CALM IN YOUR PALM: Weekes Files ADA Suit in S.D. New York
CDK GLOBAL: Parties' Bids for Summary Judgment Remain Pending
COLLECTO INC: Davis Suit Transferred to D. Colorado
COMPREHENSIVE HEALTHCARE: Extension of Briefing Schedule Sought
CONNECTICUT: Summary Judgment Bid in Gottlieb Class Suit Granted
COUNTRY CLUB: Bandas Files Suit in Tex. Dist. Ct.
CREDIT CORP: Asbury Suit Remanded to Davidson County Superior Court
CVS HEALTH: Lerner Sues Over Benzene Contaminated Products
DEKALB COUNTY, GA: Maze II Files Suit in N.D. Illinois
DENTAL EQUITIES: Mastercard's Bid to Reconsider Order Tossed
EARTHLY BODY: Abreu Files ADA Suit in S.D. New York
ELASTIQUE ATHLETICS: Fischler Files ADA Suit in E.D. New York
ELDERLY INSTRUMENTS: Abreu Files ADA Suit in S.D. New York
EQUINOX HOLDINGS: Order on Class Cert. Briefing Sched Entered
FINANCIAL BUSINESS: Hatchett Suit Moved to Person Superior Court
FIRST STUDENT: California Court Enters Final Judgment in Lopez Suit
GENERAL MOTORS: Romoff Appeals Vehicle Delivery Fee Case Dismissal
GEORGIA PACIFIC: Order on Class Cert, Discovery Amended in Diaz
GEORGIA: Coob Seeks to Certify Class of Deaf Individuals
H&R BLOCK INC: Court Dismisses Snarr Class Suit
H&R BLOCK: Swanson Suit Stayed Pending Arbitration
HAIN CELESTIAL: 2nd Circuit Vacates Dismissal Ruling on Lynn Suit
HAIN CELESTIAL: Bid to Junk Class Suits Pending
HAIN CELESTIAL: Ct. Extends Stay on Bid to Dismiss Securities Suit
HAIN CELESTIAL: Spadola Voluntarily Dismisses Claims
HAWAIIAN AIRLINES: O'Hailpin Appeals Denial of TRO Bid in ADA Case
IMMUNOVANT INC: Filing of Amended Complaint Due March 15
J.J. MARSHALL: Gartrell's 3rd Bid for Class Certification Denied
JOHN HANCOCK: $123MM Settlement to be Heard on May 17
JPMORGAN CHASE: $60MM Spoofing Settlement to be Heard on July 7
KNIGHT-SWIFT TRANSPORTATION: Scheduling Order Entered in Hobbs
KUCOIN: Williams Bid to Certify Class Partly Granted
LABOR SOURCE: Conditional Cert Bid Partly Granted in Murphy Suit
LABOR SOURCE: Rogers Dismissed From Murphy Suit Without Prejudice
LAS VEGAS SANDS: Bid to Dismiss Trust Suit Pending
LIONS GATE: Settles Pending Fiduciary Litigations
LLOYD AUSTIN: Federal Civilian Files Suit in M.D. Florida
MATTEL INC: $98MM Securities Settlement to Be Heard on May 2
MCKESSON CORPORATION: Faces Class Suits Over Opioids Side Effects
MDL 2936: Amended Scheduling Order Entered in Smitty's Suit
MICROCHIP TECHNOLOGY: Jackson Suit Gets Class Certification
MICROCHIP TECHNOLOGY: Maknissian Securities Suit Dismissed
MICROSOFT CORP: Loses Summary Judgment v. Steven Vance, et al.
MONDELEZ INTERNATIONAL: Faces Suit Over Wheat Markets Manipulation
NATIONS LENDING: Fitzhenry Must File Class Cert. Bid by July 26
NATIXIS INVESTMENT: Scheduling Order Entered in Waldner Suit
NAVISTAR INT'L: Bid to Modify Consent Decree in Shy Suit Granted
NEW YORK, NY: Brown Bid for TRO Tossed w/o Prejudice
NEW YORK, NY: Case Management Conference Set for April 5
NEWS CORP: Faces Antitrust Suits in New York
NOVARTIS INC: Faces Several Class Suits Over Carcinogen in Products
NOVARTIS INC: Generic Med Price-Fixing Suits Consolidated
PAYLOCITY HOLDING: Face Biometrics Suit in Illinois Court
PDR NETWORK: Court Dismisses Carlton's 1st Amended Suit Under TCPA
PINTEREST INC: Court Dismisses Securities Class Suit
PITTSBURGH LOGISTICS: Conditional Cert. of Collective Class OK'd
PLACE FOR MOM: Abreu Files ADA Suit in S.D. New York
POST HOLDINGS: Subsidiary Loses Summary Judgment Bid
QUALCOMM INC: 9th Cir. Affirms Dismissal of Mistry Securities Suit
QUALCOMM INC: Bid for Judgment on Class Suits Pending
QUALCOMM INC: Dismissal of Stockholders' Suit Under Appeal
REMIK HOLDINGS: New York App. Div. Certifies Class in Cupka Suit
SARMA COLLECTIONS: Hartley FDCPA Suit Removed to S.D. Florida
SMITHFIELD FOODS: Bid for Conditional Cert. Tossed in Smith Suit
SNAP INC: Faces Securities Suit Over Misleading Statements
SOCLEAN INC: Albright Suit Transferred to W.D. Pennsylvania
SOCLEAN INC: Carlile Suit Transferred to W.D. Pennsylvania
SOCLEAN INC: Coley Suit Transferred to W.D. Pennsylvania
SOCLEAN INC: Pomianek Suit Transferred to W.D. Pennsylvania
SPECTRUM BRANDS: Suit vs Subsidiary Settled
SUPER MICRO COMPUTER: Securities Suit Ongoing in N.D. Cal.
TALK OF THE TOWN: Default Judgment v. Baugh Entered in Clark Suit
TENNESSEE VALLEY AUTHORITY: Oral Argument on Bid to Dismiss Held
THERMON GROUP: Settlement in Principle Reached in Montreal Suit
TIVITY HEALTH: Class Cert. Evidentiary Hearing Reset to March 9
UBIQUITI INC: Molder Securities Suit Voluntarily Dismissed
UBS FINANCIAL: Court Wants Prefiling Review of Hsu's Future Filings
UNITED FOOD: Files Cross Appeal in Nagel Labor Case
UNITED STATES FIRE: Court Dismisses Riley Suit Without Prejudice
UNITED STATES: Navy Seals Seek Feb. 28 or March 1 Hearing
VIEW INC: Kaplan Fox Named Lead Counsel in Mehedi Securities Suit
VIEW INC: Stadium Capital Appointed as Lead Plaintiff
VISIT HEALTHCARE: Tatum-Rios Files ADA Suit in S.D. New York
VM INNOVATIONS: Case Management Plan & Scheduling Order Entered
WASHINGTON: Anderson Class Suit Dismissed
WE LEND LLC: Mooney Files TCPA Suit in S.D. New York
WILLIAMS-SONOMA STORES: Reed Files Suit in Cal. Super. Ct.
WWE INC: Faces Injury Suits by Performers
WWE INC: Settles Securities Action with Investors
XILINX INC: Securities Suit Over Merger Deal Voluntarily Dismissed
*********
23 Essex Realty: Gannon Files ADA Suit in S.D. New York
-------------------------------------------------------
A class action lawsuit has been filed against 23 Essex Realty
Corp., et al. The case is styled as Stephen Gannon, individually
and on behalf of all others similarly situated v. 23 Essex Realty
Corp., Taco Recipes Inc., John Doe 1-X, persons yet unknown,
Limited Liability Companies, Partnerships, Corporations 1-X,
entities yet unknown, Case No. 1:22-cv-00934-ER (S.D.N.Y., Feb. 2,
2022).
The lawsuit is brought over alleged violation of the Americans with
Disabilities Act.
Essex Realty -- https://essexrealtygroup.com/ -- is a leading
mid-market multifamily real estate brokerage firm based in
Chicago.[BN]
The Plaintiff is represented by:
Adam Douglas Ford, Esq.
Ford & Huff LC
228 Park Avenue South
New York, NY 10003
Phone: (212) 287-5913
Email: adam.ford@fordcranelaw.com
A&E TELEVISION: Paguada Files ADA Suit in S.D. New York
-------------------------------------------------------
A class action lawsuit has been filed against A&E Television
Networks, LLC. The case is styled as Josue Paguada, on behalf of
himself and all others similarly situated v. A&E Television
Networks, LLC, Case No. 1:22-cv-01290 (S.D.N.Y., Feb. 15, 2022).
The lawsuit is brought over alleged violation of the Americans with
Disabilities Act.
A&E Television Networks -- https://www.aenetworks.com/ -- are a
global media and entertainment brand portfolio that finds,
cultivates, illuminates and markets entertainment content to
worldwide audiences s.[BN]
The Plaintiff is represented by:
Edward Y. Kroub, Esq.
MIZRAHI KROUB LLP
200 Vesey Street, Ste. 24th Floor
New York, NY 10281
Phone: (212) 595-6200
Email: ekroub@mizrahikroub.com
ACCESS USA: Paguada Files ADA Suit in S.D. New York
---------------------------------------------------
A class action lawsuit has been filed against Access USA Shipping,
LLC. The case is styled as Josue Paguada, on behalf of himself and
all others similarly situated v. Access USA Shipping, LLC, Case No.
1:22-cv-01291 (S.D.N.Y., Feb. 15, 2022).
The lawsuit is brought over alleged violation of the Americans with
Disabilities Act.
Access USA Shipping, Inc. -- https://www.myus.com/ -- operates as
package and shipping forwarding company. The Company's services
include logistics, package consolidation, export compliance,
paperwork services, mail forwarding, and personal shopper
services.[BN]
The Plaintiff is represented by:
Edward Y. Kroub, Esq.
MIZRAHI KROUB LLP
200 Vesey Street, Ste. 24th Floor
New York, NY 10281
Phone: (212) 595-6200
Email: ekroub@mizrahikroub.com
ACCUTECH SYSTEMS: Medvigy Files Suit in S.D. California
-------------------------------------------------------
A class action lawsuit has been filed against Accutech Systems
Corporation. The case is styled as Christopher Medvigy,
individually, and on behalf of all others similarly situated v.
Accutech Systems Corporation, Case No. 3:22-cv-00207-LL-BLM (S.D.
Cal., Feb. 15, 2022).
The nature of suit is stated as Other P.I.
Accutech -- https://www.trustasc.com/ -- delivers innovative trust
and wealth management solutions with exceptional, personalized
service to over 250 banks and wealth management companies.[BN]
The Plaintiff is represented by:
Cody Alexander Bolce, Esq.
Laura Grace Van Note, Esq.
Scott Edward Cole, Esq.
SCOTT COLE & ASSOCIATES
555 12th Street, Suite 1725
Oakland, CA 94607
Phone: (510) 709-5839
Email: cab@colevannote.com
lvn@colevannote.com
sec@colevannote.com
ACUITY BRANDS: $15.75-Mil. Settlement to be Heard on June 3
-----------------------------------------------------------
Kessler Topaz Meltzer & Check LLP and Labaton Sucharow LLP on Feb.
1, 2022 disclosed that the United States District Court for the
Northern District of Georgia Atlanta Division has approved the
following announcement of a proposed class action settlement on
behalf of purchasers of Acuity Brands, Inc. common stock (NYSE:
AYI):
SUMMARY NOTICE OF (I) PENDENCY OF CLASS ACTION AND PROPOSED
SETTLEMENT; (II) SETTLEMENT HEARING; AND
(III) MOTION FOR ATTORNEYS' FEES AND LITIGATION EXPENSES
TO: All persons who purchased publicly traded common stock of
Acuity Brands, Inc. ("Acuity") from October 7, 2015 to April 3,
2017, inclusive, and were damaged thereby ("Class"):
PLEASE READ THIS NOTICE CAREFULLY; YOUR RIGHTS
WILL BE AFFECTED BY A CLASS ACTION LAWSUIT
PENDING IN THIS COURT.
YOU ARE HEREBY NOTIFIED, pursuant to Rule 23 of the Federal Rules
of Civil Procedure and an Order of the United States District Court
for the Northern District of Georgia ("Court"), that the
above-captioned action ("Action") has been certified as a class
action on behalf of the Class, except for certain persons and
entities who are excluded from the Class by definition as set forth
in the full printed Notice of (I) Pendency of Class Action and
Proposed Settlement; (II) Settlement Hearing; and (III) Motion for
Attorneys' Fees and Litigation Expenses ("Notice").
YOU ARE ALSO NOTIFIED that Court-appointed Class Representative the
Public Employees' Retirement System of Mississippi ("Class
Representative"), on behalf of itself and the Court-certified
Class, has reached a proposed settlement of the Action with
defendants Acuity, Vernon J. Nagel, Richard K. Reece, and Mark A.
Black (collectively, "Defendants") for $15,750,000 in cash
("Settlement"). If approved by the Court, the Settlement will
resolve all claims in the Action.
A hearing ("Settlement Hearing") will be held on June 3, 2022 at
10:00 a.m., before the Honorable Mark H. Cohen, United States
District Court Judge for the Northern District of Georgia, either
in person at the Richard B. Russell Federal Building and United
States Courthouse, 75 Ted Turner Drive, SW, Courtroom: 1905,
Atlanta, GA 30303, or by video or telephonic conference as the
Court may order, to determine, among other things: (i) whether the
proposed Settlement on the terms and conditions provided for in the
Stipulation and Agreement of Settlement dated December 2, 2021
("Stipulation") is fair, reasonable, and adequate to the Class, and
should be finally approved by the Court; (ii) whether the Action
should be dismissed with prejudice against Defendants and the
releases specified and described in the Stipulation (and in the
Notice) should be granted; (iii) whether the proposed Plan of
Allocation (as set forth in the Notice) should be approved as fair
and reasonable; and (iv) whether Class Counsel's motion for
attorneys' fees and Litigation Expenses should be approved. Any
updates regarding the Settlement Hearing, including any changes to
the date or time of the hearing or updates regarding in-person or
remote appearances at the hearing, will be posted to the website
for the Settlement, www.strategicclaims.net/acuity.
If you are a member of the Class, your rights will be affected by
the pending Action and the Settlement, and you may be entitled to
share in the Settlement proceeds. If you have not yet received the
full printed Notice and Claim Form in the mail, you may obtain
copies of these documents by: (i) contacting the Claims
Administrator at Acuity Brands, Inc. Securities Litigation, c/o
Strategic Claims Services, 600 N. Jackson Street, Suite 205, Media,
PA 19063, 1-866-274-4004, info@strategicclaims.net; or (ii)
downloading them from the website for the Settlement,
www.strategicclaims.net/acuity, or from Class Counsel's websites
www.ktmc.com and www.labaton.com.
To be eligible to receive a payment from the Settlement, you must
be a member of the Class and submit a Claim Form postmarked (if
mailed), or online via www.strategicclaims.net/acuity, no later
than May 18, 2022, in accordance with the instructions set forth in
the Claim Form. If you are a Class Member and do not submit a
proper Claim Form, you will not be eligible to share in the
Settlement proceeds, but you will nevertheless be bound by any
judgments or orders entered by the Court in the Action.
If you are a member of the Class and wish to exclude yourself from
the Class, you must submit a request for exclusion such that it is
received no later than May 13, 2022, in accordance with the
instructions set forth in the Notice. If you properly exclude
yourself from the Class, you will not be bound by any judgments or
orders entered by the Court in the Action and you will not receive
any benefits from the Settlement.
Any objections to the proposed Settlement, the proposed Plan of
Allocation, and/or Class Counsel's motion for attorneys' fees and
Litigation Expenses, must be submitted to the Court and served on
Class Counsel and Defendants' Counsel such that they are received
no later than May 13, 2022, in accordance with the instructions set
forth in the Notice.
PLEASE DO NOT CONTACT THE COURT, THE CLERK'S OFFICE, DEFENDANTS, OR
DEFENDANTS' COUNSEL REGARDING THIS NOTICE. All questions about this
notice, the Settlement, or your eligibility to participate in the
Settlement should be directed to Class Counsel or the Claims
Administrator.
Requests for the Notice and Claim Form should be made to the Claims
Administrator:
Acuity Brands, Inc. Securities Litigation
c/o Strategic Claims Services
600 N. Jackson Street, Suite 205
Media, PA 19063
1-866-274-4004
info@strategicclaims.net
www.strategicclaims.net/acuity
All other inquiries should be made to Class Counsel:
Andrew L. Zivitz, Esq.
Kessler Topaz Meltzer & Check, LLP
280 King of Prussia Road
Radnor, PA 19087
1-610-667-7706
info@ktmc.com
James W. Johnson, Esq.
Labaton Sucharow LLP
140 Broadway
New York, NY 10005
1-888-219-6877
settlementquestions@labaton.com
DATED: FEBRUARY 1, 2022
BY ORDER OF THE COURT
United States District Court
Northern District of Georgia
ADVANCE AUTO: $49.25MM Settlement to be Heard on June 13
--------------------------------------------------------
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF DELAWARE
IN RE ADVANCE AUTO PARTS, INC.
SECURITIES LITIGATION
Case No. 18-CV-00212-RTD-SRF
CLASS ACTION
SUMMARY NOTICE OF (I) PENDENCY OF CLASS ACTION AND PROPOSED
SETTLEMENT; (II) SETTLEMENT HEARING; AND (III) MOTION FOR
ATTORNEYS' FEES AND LITIGATION EXPENSES
TO: All persons and entities who purchased or otherwise acquired
the common stock of Advance Auto Parts, Inc. ("AAP") between
November 14, 2016 and August 15, 2017, inclusive:
PLEASE READ THIS NOTICE CAREFULLY; YOUR RIGHTS MAY BE AFFECTED BY A
CLASS ACTION LAWSUIT PENDING IN THIS COURT.
YOU ARE HEREBY NOTIFIED, pursuant to Rule 23 of the Federal Rules
of Civil Procedure and an Order of the United States District Court
for the District of Delaware ("Court"), that the above-captioned
action ("Action") has been certified as a class action on behalf of
the following class: all persons and entities who purchased or
otherwise acquired the common stock of AAP between November 14,
2016 and August 15, 2017, inclusive, and were damaged thereby (the
"Class"). Certain persons and entities are excluded from the Class
by definition as set forth in the Stipulation and Agreement of
Settlement dated December 23, 2021 ("Stipulation") and the Notice
described below.
YOU ARE ALSO HEREBY NOTIFIED that Court-appointed Class
Representative the Public Employees' Retirement System of
Mississippi ("Class Representative"), on behalf of itself and the
Court-certified Class, has reached a proposed settlement of the
Action with defendants AAP, Thomas R. Greco, and Thomas Okray
(collectively, "Defendants") for $49,250,000 in cash
("Settlement"). If approved by the Court, the Settlement will
resolve all claims in the Action.
A hearing ("Settlement Hearing") will be held on June 13, 2022 at
10:00 a.m., before the Honorable Robert T. Dawson, United States
District Judge, either in person at the J. Caleb Boggs Federal
Building, 844 N. King Street, Wilmington, DE 19801, or by video or
telephonic conference as the Court may order, to determine, among
other things: (i) whether the proposed Settlement on the terms and
conditions provided for in the Stipulation is fair, reasonable, and
adequate to the Class, and should be finally approved by the Court;
(ii) whether the Action should be dismissed with prejudice against
Defendants and the releases specified and described in the
Stipulation (and in the Notice described below) should be granted;
(iii) whether the proposed Plan of Allocation should be approved as
fair and reasonable; and (iv) whether Class Counsel's motion for
attorneys' fees and litigation expenses should be approved. Any
updates regarding the Settlement Hearing, including any changes to
the date or time of the hearing or updates regarding in-person or
remote appearances at the hearing, will be posted to the website
for the Settlement, www.AAPSecuritiesLitigation.com.
If you are a member of the Class, your rights will be affected by
the pending Action and the Settlement, and you may be entitled to
share in the Settlement proceeds. This notice provides only a
summary of the information contained in the detailed Notice of (I)
Pendency of Class Action and Proposed Settlement; (II) Settlement
Hearing; and (III) Motion for Attorneys' Fees and Litigation
Expenses ("Notice"). You may obtain a copy of the Notice, along
with the Claim Form, on the website for the Settlement,
www.AAPSecuritiesLitigation.com, or from Class Counsel's website,
www.ktmc.com. You may also obtain copies of the Notice and Claim
Form by contacting the Claims Administrator at AAP Securities
Litigation Settlement, c/o KCC Class Action Services, P.O. Box
43034, Providence, RI 02940-3034; 1-866-819-0430;
info@AAPSecuritiesLitigation.com.
To be eligible to receive a payment from the Settlement, you must
be a member of the Class and submit a Claim Form postmarked (if
mailed), or online via www.AAPSecuritiesLitigation.com, no later
than June 9, 2022, in accordance with the instructions set forth in
the Claim Form. If you are a Class Member and do not submit a
proper Claim Form, you will not be eligible to share in the
Settlement proceeds, but you will nevertheless be bound by any
judgments or orders entered by the Court in the Action.
If you are a member of the Class and wish to exclude yourself from
the Class, you must submit a request for exclusion such that it is
received no later than May 23, 2022, in accordance with the
instructions set forth in the Notice. If you properly exclude
yourself from the Class, you will not be bound by any judgments or
orders entered by the Court in the Action and you will not receive
any benefits from the Settlement. Excluding yourself from the Class
is the only option that may allow you to be part of any other
current or future lawsuit against Defendants or any of the other
released parties concerning the claims being resolved by the
Settlement. Please note, however, if you decide to exclude
yourself, you may be time-barred from asserting certain of the
claims covered by the Action by a statute of repose.
Any objections to the proposed Settlement, the proposed Plan of
Allocation, and/or Class Counsel's motion for attorneys' fees and
litigation expenses, must be submitted to the Court and served on
Class Counsel and Defendants' Counsel such that they are received
no later than May 23, 2022, in accordance with the instructions set
forth in the Notice.
PLEASE DO NOT CONTACT THE COURT, THE CLERK'S OFFICE, DEFENDANTS, OR
DEFENDANTS' COUNSEL REGARDING THIS NOTICE. All questions about this
notice, the Settlement, or your eligibility to participate in the
Settlement should be directed to Class Counsel or the Claims
Administrator.
Requests for the Notice and Claim Form should be made to the Claims
Administrator:
AAP Securities Litigation Settlement
c/o KCC Class Action Services
P.O. Box 43034
Providence, RI 02940-3034
1-866-819-0430
info@AAPSecuritiesLitigation.com
www.AAPSecuritiesLitigation.com
All other inquiries should be made to Class Counsel:
Sharan Nirmul, Esq.
Kessler Topaz Meltzer & Check, LLP
280 King of Prussia Road
Radnor, PA 19087
(610) 667-7706
info@ktmc.com
www.ktmc.com
DATED: February 18, 2022
BY ORDER OF THE COURT
United States District Court
District of Delaware
AH-HA CHOCOLATES: Hancock Sues Over Failure to Pay Wages
--------------------------------------------------------
Jahlynn Hancock, on behalf of herself and all other similarly
situated persons, known and unknown v. AH-HA CHOCOLATES, FUDGE &
ICE CREAM CORP., d/b/a Kilwins Ice Cream And Chocolates d/b/a
Kilwins Chicago – Hyde Park, CHOCOLATE GIRL EXPLOSION, INC.,
d/b/a Kilwins Ice Cream And Chocolates d/b/a Kilwins Chicago –
310 S. Michigan avenue, CHOCOLATE BLESSINGS, INC., d/b/a Kilwins
Ice Cream And Chocolates d/b/a Kilwins Chicago – Navy Pier, AND
JACQUELINE JACKSON, individually, Case No. 1:22-cv-00623 (N.D.
Ill., Feb. 4, 2022), is brought for: failure to pay the minimum
wage for all hours worked, in violation of the federal Fair Labor
Standards Act ("FLSA"), the Illinois Minimum Wage Law ("IMWL"), and
the Chicago Minimum Wage Ordinance, Chicago ("CMWO"); failure to
pay overtime wages, in violation of the FLSA, IMWL, and CMWO;
unlawful pay deductions and nonpayment of wages in violation of the
Illinois Wage Payment and Collection Act ("IWPCA"), FLSA and IMWL;
tip theft in violation of the FLSA and IWPCA; and retaliatory
discharge in violation of the FLSA, IMWL and IWPCA.
The Plaintiff often earned tips as part of their compensation.
Initially, Defendants only permitted cash tips. However, later in
Hancock's employment, Defendants eventually allowed customers to
leave credit card tips. Kilwins-Chicago employed a practice,
applicable to the Plaintiff alike, of wage theft in the form of
stolen tips. Defendants regularly confiscated all tips earned by
the Plaintiff. Hancock was never permitted to keep any cash tips
she received from customers. Upon information and belief, the cash
tips stolen by Jackson and Kilwins-Chicago constituted, on average,
$50 dollars per week.
The Defendants implemented and enforced a policy by which
"mandatory break" periods were deducted from all employee paychecks
even when breaks were not actually taken. If Hancock or the
Plaintiff Class worked at least six consecutive hours, Defendants
enforced a "mandatory break" policy. However, Defendants enforced
this mandatory hour deduction even when the Plaintiff was unable to
take a full hour break during which they were entirely relieved of
duties. This means, when the various shops were short-staffed,
busy, or the like, and no break was possible, Defendants still
deducted one hour of pay per shift.
The Defendants employed a practice, applicable to the Plaintiff
alike, of mandatory pay deductions based on cell phone usage.
Jackson would frequently communicate with the Plaintiff via cell
phone during their respective shifts. Despite this, Defendants
implemented and enforced a policy whereby any employee caught using
their cell phone while at work would have a mandatory hour of time
deducted from their paycheck. Defendants regularly enforced the
policy and deducted time from the Plaintiff's pay improperly. By
way of example only, Jackson sometimes called or texted Hancock
work-related instructions when customers submitted online orders.
Jackson would send a text message to Hancock containing a
screenshot of an online order. However, anytime Jackson came to the
store and saw an employee's phone in their pocket or on the
counter, she would claim that Hancock was improperly using her cell
phone and say, "I am deducting an hour." The deductions resulted in
the Plaintiff not receiving at least the minimum wage for all hours
worked and, in certain cases, less than time-and-one-half their
regular hourly rates for hours worked over 40.
The Defendants' actions were intentional and willful, as evidenced
in part because they terminated the Plaintiff's employment when she
began complaining about unpaid wages and requesting copies of
paystubs and other pay records, says the complaint.
The Plaintiff was hired on September 30, 2020, in the position of
team member and was responsible for assisting guests with purchases
from ice cream to confectionery.
Kilwins is a nationwide conveyer of ice cream and confectionary
with a corporate headquarters in Petoskey, Michigan.[BN]
The Plaintiff is represented by:
Max Barack, Esq.
Haskell Garfinkel, Esq.
Matthew Fletcher, Esq.
Andrew Fullett, Esq.
THE GARFINKEL GROUP, LLC
One of Plaintiffs' Attorneys
6252 N. Lincoln Avenue, Suite 200
Chicago, IL. 60659
Email: max@garfinkelgroup.com
haskell@garfinkelgroup.com
matthew@garfinkelgroup.com
andrew@garfinkelgroup.com
ALL STAR INNOVATIONS: Paguada Files ADA Suit in S.D. New York
-------------------------------------------------------------
A class action lawsuit has been filed against All Star Innovations,
LLC. The case is styled as Josue Paguada, on behalf of himself and
all others similarly situated v. All Star Innovations, LLC, Case
No. 1:22-cv-01288 (S.D.N.Y., Feb. 15, 2022).
The lawsuit is brought over alleged violation of the Americans with
Disabilities Act.
All Star Innovations -- https://allstarinnovations.com/ -- is the
Atlanta area's most trusted source for a wide array of facility
maintenance and construction services.[BN]
The Plaintiff is represented by:
Edward Y. Kroub, Esq.
MIZRAHI KROUB LLP
200 Vesey Street, Ste. 24th Floor
New York, NY 10281
Phone: (212) 595-6200
Email: ekroub@mizrahikroub.com
ALLTRAN FINANCIAL: Brown Suit Remanded to Guilford Superior Court
-----------------------------------------------------------------
Judge Catherine C. Eagles of the U.S. District Court for the Middle
District of North Carolina remands the case, TARA BROWN, on behalf
of herself and all others similarly situated, Plaintiff v. ALLTRAN
FINANCIAL, LP, Defendant, Case No. 1:21-CV-595 (M.D.N.C.), to the
Superior Court of Guilford County.
Introduction
Plaintiff Brown filed suit in state court alleging that the
Defendant communicated information about her alleged debt to a
third party. Alltran removed the case to the Court, asserting
federal question jurisdiction based on Ms. Brown's federal Fair
Debt Collection Practices Act claim.
Background
In July 2021, Ms. Brown brought the putative class action in North
Carolina state court alleging Alltran violated the North Carolina
Debt Collection Act, N.C. Gen. Stat. Section 75-50 et seq., the
North Carolina Unfair and Deceptive Trade Practices Act, N.C. Gen.
Stat. Section 75-1.1, and the federal Fair Debt Collection
Practices Act, 15 U.S.C. Section 1692 et seq. The putative class
consists of consumers in North Carolina whose debt information
Alltran sent to a third party without consent.
Alltran removed the action to the Court based on federal question
jurisdiction arising out of the FDCPA claim. The Court sua sponte
questioned standing in light of TransUnion LLC v. Ramirez, 141
S.Ct. 2190 (2021) and ordered the parties to show cause why the
case should not be remanded to state court for lack of subject
matter jurisdiction.
Ms. Brown has since amended her complaint. She removed her claims
under the NCDCA, N.C. Gen. Stat. Section 75-50 et seq., and the
associated treble damages provision of the UDTPA, N.C. Gen. Stat
Section 75-1.1, and she added a claim under the North Carolina
Collection Agency Act, N.C. Gen. Stat Section 58-70 et seq. Her
federal claim was unaffected.
The Court has the original and amended complaints before it. It
offered the parties an opportunity to present evidence in support
of subject matter jurisdiction; neither party responded to that
invitation. Judge Eagles thus applies the usual test for analyzing
standing at the pleadings stage and will accept as true the factual
allegations in the complaints.
According to the original and amended complaint, Ms. Brown owes
money to an unidentified creditor, and that debt was in default.
The creditor "transferred" the debt to Alltran, a debt collector.
As part of attempting to collect that debt, Alltran used a
third-party vendor to prepare and send letters to Ms. Brown from
Alltran about her debt. Alltran sent information about Ms. Brown's
debt to the third-party vendor, who "populated" some or all the
debt information into a "prepared template," printed the resulting
letter, and mailed it to Ms. Brown.
In May 2021, Ms. Brown received and read one such letter from
Alltran about her debt. She did not consent to Alltran sharing her
debt information with the third-party vendor.
Analysis
In Spokeo, Inc. v. Robins, 578 U.S. 330, 338 (2016), standing to
sue is a doctrine rooted in the traditional understanding of a case
or controversy. For there to be a case or controversy under Article
III, the plaintiff must have a personal stake in the case -- in
other words, standing. To satisfy the standing requirement, a
"plaintiff must have (1) suffered an injury in fact, (2) that is
fairly traceable to the challenged conduct of the defendant, and
(3) that is likely to be redressed by a favorable judicial
decision."
The burden of establishing standing in the case is on the
Defendant, Alltran, because it is Alltran that has invoked the
jurisdiction of the Court. Alltran must show that the complaint
includes "clearly allege[d] facts demonstrating each element" of
standing.
Judge Eagles assumes without deciding that it was a violation of
the Fair Debt Collection Practices Act for Alltran to share Ms.
Brown's debt information with a third-party mailing vendor. But a
statutory violation alone is not sufficient to confer standing. As
the Supreme Court has made clear, a statutory violation does not
necessarily cause concrete harm. Nor is it enough that both parties
agree that Ms. Brown has standing.
Ms. Brown and Alltran both assert that Ms. Brown has alleged
intangible and concrete harm similar to that caused by the tort of
disclosure of private information. Ms. Brown's bare allegations of
speculative harm do not show the kind of public disclosure or
reputational harm caused by tortious disclosure of private
information. Nor do the facts alleged show the kind of harm giving
rise to tortious intrusion upon seclusion, as Ms. Brown contends,
such as physically invading a person's home or other private place,
eavesdropping by wiretapping or microphones, peering through
windows, persistent telephoning, unauthorized prying into a bank
account, and opening personal mail of another.
As Judge Eagles noted, standing is not a generic analysis. Alltran
has not identified any specific allegations to support its
contention that Ms. Brown alleged a concrete intangible harm.
Spokeo requires the complaint to include "clearly alleged facts
demonstrating each element" of standing. Neither Alltran nor Ms.
Brown have identified specific allegations of injury in fact from
the alleged disclosure at issue. The Court does not have subject
matter jurisdiction and remand is appropriate.
Conclusion
Judge Eagles concludes that because neither Alltran nor Ms. Brown
have identified allegations of concrete harm resulting from
Alltran's alleged federal statutory violations, Ms. Brown lacks
standing for her claim to remain in federal court. She declines to
exercise supplemental jurisdiction over the state law claims and
remands the case to the Superior Court of Guilford County.
A full-text copy of the Court's Feb. 8, 2022 Memorandum Opinion &
Order is available at https://tinyurl.com/ymtv58nf from
Leagle.com.
AMERICAN SUGAR: Smith Suit Returned to St. Bernard State Court
--------------------------------------------------------------
Judge Lance M. Africk of the U.S. District Court for the Eastern
District of Louisiana remanded the case, JIMMIE SMITH, JR. v.
AMERICAN SUGAR REFINING, INC., SECTION I, Civil Action No. 21-1932,
C/W No. 21-1934 (E.D. La.), to the 34th Judicial District Court for
the Parish of St. Bernard.
I. Background
Mr. Smith filed the instant putative class action in the 34th
Judicial District Court on Aug. 25, 2021. The class action petition
states that American Sugar owned and operated a sugar refinery
located at 7417 N. Peters Road in Arabi, Louisiana ("the Domino
Sugar Refinery"). The petition alleges that, on Aug. 27, 2020 at
approximately 4:00 p.m., "a massive fire occurred at one of the
silos at the Domino Sugar Refinery which released harmful and
hazardous substances that were subsequently disbursed throughout
the area."
Mr. Smith, on behalf of a putative class, raises negligence and
nuisance claims against American Sugar. He defines the class as
"all persons, natural or juridical, domiciled in and/or residing in
the Parishes of St. Bernard and/or Orleans, State of Louisiana, who
have sustained legally cognizable damages in the form of physical
and emotional damages, nuisance, trespass, and interference with
the enjoyment of their properties, as a result of the fire and/or
emissions from the Domino Sugar Refinery on or around Aug. 27,
2020."
Mr. Smith filed an irrevocable stipulation alongside his class
petition. The 15-paragraph stipulation states, among other things,
that Smith and his attorneys "will not seek to enforce any judgment
that may be awarded in excess of $75,000, exclusive of interests
and costs for any one plaintiff individually." Smith explains that
the document contains this type of stipulation "literally stated
ten different ways so as to resolve any ambiguity that the
Plaintiff's claim does not exceed the jurisdictional threshold
under 28 U.S.C. Section 1332(a)." Additionally, Smith makes several
stipulations as to the maximum individual damages of the unnamed
members of the putative class, and states that the aggregate amount
of all claims in the proposed class action does not exceed $5
million, exclusive of interests and costs.
On Oct. 21, 2021, American Sugar removed the action to federal
court. On the same date, American Sugar also removed Alkurd et al.
v. American Sugar Refining, Inc., No. 21-1934, a 48-plaintiff mass
joinder action arising from the same explosion and raising the same
legal claims. The Court consolidated the instant action with
Alkurd. On Jan. 4, 2022, it granted a joint motion to remand the
Alkurd action to state court.
American Sugar asserts that federal jurisdiction exists pursuant to
the Class Action Fairness Act of 2005, 28 U.S.C. Section 1332(d).
Additionally, it asserts that the Court has diversity jurisdiction
over this action pursuant to 28 U.S.C. Section 1332(a). It appears
that American Sugar may intend to argue that the Court has
diversity jurisdiction over Smith's claims, and therefore that the
Court may exercise supplemental jurisdiction over the claims of the
unnamed class members, pursuant to 28 U.S.C. Section 1367.
The parties agree that the requisite diversity of citizenship
exists: Smith is domiciled in Louisiana and American Sugar is a
Delaware corporation with its principal place of business in
Florida. However, Smith contends that the amount in controversy
requirements set forth in Sections 1332(d) and 1332(a) have not
been met. Accordingly, he contends that this Court does not have
subject matter jurisdiction over the action, and he seeks remand to
state court.
II. Discussion
A. Jurisdiction Pursuant to 28 U.S.C. Section 1332(d)
The parties agree that there is diversity of citizenship between
the named Plaintiff and the Defendant, but disagree regarding
whether the amount in controversy exceeds $5 million. As relevant
to determining the amount in controversy, the parties disagree over
both the quantum of recovery that the class members would likely
receive and the size of the putative class.
1. Quantum of Recovery
Smith argues that the value of each class member's claim is not
likely to exceed $5,000. Additionally, Smith cites to the awards
granted in cases that he asserts involve incidents that are
factually similar to, although more significant than, the instant
matter. He also raises the recently-decided Spencer v. Valero
Refining Meraux, LLC, 2021-C-0383 (La. App. 4 Cir. Feb. 2, 2022),
___ So.3d ___, arising from an explosion and fire at a Valero
refinery and affirming damage awards for claims of negligent
infliction of emotional distress absent physical injury.
American Sugar sketches a dramatically larger estimate for
potential recovery in its notice of removal, indicating that the
class members' individual claims would exceed $75,000. In support,
it cites to Louisiana caselaw arising from situations that are
largely factually dissimilar, and far more severe, than the
situation at issue in the case. For instance, it cites awards for
"fear and fright" of latent disease caused by exposure to
environmental contaminants in cases where the plaintiffs were
exposed to contaminants for periods ranging from months to years.
It also cites to cases in which plaintiffs were awarded substantial
awards for serious or permanent disabilities caused by exposure to
toxic substances.
Judge Africk concludes that Smith's cases are far more similar to
the instant action than those of American Sugar. He concurs with
Smith's assessment that its proffered case, Spencer, involves
factually similar, although more significant, incidents. For
instance, plaintiffs in Aaron experienced physical symptoms for
several days to weeks, whereas Smith has indicated that neither
Smith nor any of the Alkurd plaintiffs sought medical treatment
relating to the Domino Sugar Refinery explosion, although some
plaintiffs experienced "respiratory symptoms and headaches" lasting
"less than 1 day." The Valero incident at issue in Spencer appears
to have been greater in magnitude and duration than the incident at
issue in the present action, and among other things, it caused the
Spencer plaintiffs to leave their home for several days out of fear
of chemical exposure.
2. Class Size
Smith's class action petition defines the putative class to include
"all persons residing in the Parishes of St. Bernard and/or
Orleans, State of Louisiana, who have sustained legally cognizable
damages as a result of the fire and/or emissions from the Domino
Sugar Refinery."
American Sugar raises several arguments against Smith's class
definition. First, with respect to the geographical scope of the
class, American Sugar states that the class petition is "evasive"
and does not specify which areas of St. Bernard and Orleans
Parishes were impacted by the alleged incident. Second, with
respect to determining which individuals within the specified
geographic area should be included in the class, American Sugar
submits that all residents of this area should be included.
Judge Africk concludes that American Sugar's approach is overly
broad and methodologically unconvincing. Indeed, the Fifth Circuit
has rejected similar definitions and methodologies in class actions
arising from chemical plant explosions that caused chemicals to be
released into the air. For instance, in Berniard v. Dow Chemical
Co., 481 F. App'x 859 (5th Cir. 2010), the removing defendants
defined the putative class according to "census data of the various
geographical areas referred to in the several pleadings and
complaints."
The Fifth Circuit described this methodology as "speculative and
unconvincing" and concluded that these "bald exposure
extrapolations were insufficient to establish the likely number of
persons affected by the release of chemicals." It ultimately
concluded that the defendants had "overstated the reach of the
plaintiffs' petitions by improperly equating the geographic areas
in which potential plaintiffs might reside with the population of
the plaintiff class itself."
American Sugar's methodology is speculative and unconvincing. It
overstates the reach of Smith's petition by improperly equating the
geographic areas in which potential plaintiffs might reside with
the population of the plaintiff class itself. Further, the
comparisons that American Sugar makes to damage recovery in similar
cases are too attenuated to satisfy its burden."
While American Sugar need not prove that the jurisdictional amount
is satisfied to a legal certainty, it must prove that it is more
likely than not that the jurisdictional amount is satisfied. It has
not done so, Judge Africk holds.
B. Jurisdiction Pursuant to 28 U.S.C. Sections 1332(a) and 1367
To the extent that American Sugar asserts that the Court has
diversity jurisdiction over the claims of all the Plaintiffs, named
and unnamed, Judge Africk concludes that it does not. For the
reasons he stated, American Sugar has not demonstrated that the
claims of any plaintiff -- let alone all the Plaintiffs --
individually exceed $75,000. However, to the extent that American
Sugar is attempting to assert that the Court has diversity
jurisdiction over Smith and that the Court may exercise
supplemental jurisdiction over diverse class member's claims, Judge
Africk concludes that the stipulation language is broad enough to
encompass attorney's fees.
Judge Africk concludes that Smith's stipulation is valid insofar as
it waives Smith's right to collect any judgment exceeding $75,000,
including damages and attorney's fees. Accordingly, the Court does
not have diversity jurisdiction over Smith's claims, and therefore
may not exercise supplemental jurisdiction over the rest of the
class' claims.
III. Conclusion
For the reasons he stated, Judge Africk granted the motion to
remand, and remanded the action to the 34th Judicial District Court
for the Parish of St. Bernard. He denied as moot the motion to
dismiss.
A full-text copy of the Court's Feb. 8, 2022 Order & Reasons is
available at https://tinyurl.com/579uj98b from Leagle.com.
ART.COM INC: Paguada Files ADA Suit in S.D. New York
----------------------------------------------------
A class action lawsuit has been filed against Art.com, Inc. The
case is styled as Josue Paguada, on behalf of himself and all
others similarly situated v. Art.com, Inc., Case No. 1:22-cv-01292
(S.D.N.Y., Feb. 15, 2022).
The lawsuit is brought over alleged violation of the Americans with
Disabilities Act.
Art.com Inc. -- https://www.art.com/ -- is the world's largest
online specialty retailer of high-quality wall art and
complementary decor.[BN]
The Plaintiff is represented by:
Edward Y. Kroub, Esq.
MIZRAHI KROUB LLP
200 Vesey Street, Ste. 24th Floor
New York, NY 10281
Phone: (212) 595-6200
Email: ekroub@mizrahikroub.com
ASSERTIO THERAPEUTICS: Bid to Seal Docs in Glumetza Suit Granted
----------------------------------------------------------------
In the case, In re GLUMETZA ANTITRUST LITIGATION. This Document
Relates to: ALL ACTIONS, Case Nos. C 19-05822 WHA, C 19-05831 WHA,
C 19-06138 WHA, C 19-06156 WHA, C 19-06839 WHA, C 19-07843 WHA
(Consolidated) (N.D. Cal.), Judge William Alsup of the U.S.
District Court for the Northern District of California granted the
Direct Purchaser Class Plaintiffs' Administrative Motion to File
Under Seal Pursuant to Civil L.R. 7-11 and 79-5.
The Defendants in the consolidated litigation include Assertio
Therapeutics, Inc., Bausch Health Companies Inc., BlackRock Fund
Advisors, a subsidiary of BlackRock, Inc., Lupin Inc., and Lupin
Ltd.
The Court finds that there are compelling reasons for granting the
request to file documents under seal in the formats that they have
been provided to the Court. He orders sealed the highlighted,
redacted portions of the Declaration of Michael Atkinson in support
of the Motion for Final Approval of Class Action Settlements.
A full-text copy of the Court's Feb. 8, 2022 Order is available at
https://tinyurl.com/y4pr37d8 from Leagle.com.
BEACH HOUSE: Nygaard Bid to Certify Class Nixed
-----------------------------------------------
In the class action lawsuit captioned as Holly Nygaard and Quanell
Gee, on behalf of themselves and others similarly situated, v.
Beach House Hospitality Group, LLC d/b/a Beach House Bar & Grill;
and Erez Sukarchi, individually, Case No. 4:20-cv-00233-JD
(D.S.C.), the Court entered an order granting the Plaintiffs'
motion to compel and denying the Plaintiffs' motion to certify
class.
The Court said, "Based on the testimony gathered in this lawsuit,
there was no uniform policy applied to every server and bartender
during the entire time period. Whether a server or bartender was
required to pay for silverware, walkouts, or wrong orders varied,
as were the amounts required to be paid for each. There was no
uniform policy applied to everyone during the entire time period.
Accordingly, there is no uniform method for determining which
servers or bartenders were
required to pay for silverware, walkouts, or wrong orders; or for
when and how much servers or bartenders were required to pay.
Individual inquiries are necessary to ascertain a class that was
affected by Beach House's managers' intermittent and discretionary
charges for silverware, walkouts, and wrong orders. "In the Fourth
Circuit, class certification is not appropriate when ‘class
members are impossible to identify without extensive and
individualized fact-finding’ as it needs to be administratively
feasible for the court to determine which individuals are members
of the class." Therefore, this case should not be certified as a
class action."
This case involves alleged violations of the Fair Labor Standards
Act ("FLSA") and the South Carolina Payment of Wages Act ("SCPWA").
The Plaintiffs Nygaard and Gee, individually and on behalf of
others similarly situated, were servers or bartenders at Beach
House Bar & Grill. The Plaintiffs allege under their SCPWA claim
that Defendants Beach House and Erez Sukarchi, had a policy that
among other things required some of its servers and/or bartenders
to pay Beach House for the cost for silverware, walkouts, and/or
wrong orders, or a discounted portion of such costs, during the
time period pertinent to this lawsuit.
A copy of the Court's order dated Feb. 9, 2021 is available from
PacerMonitor.com at https://bit.ly/34IrSEj at no extra charge.[CC]
BEAUTY-LAB LLC: Abreu Files ADA Suit in S.D. New York
-----------------------------------------------------
A class action lawsuit has been filed against Beauty-Lab LLC. The
case is styled as Luigi Abreu, individually, and on behalf of all
others similarly situated v. Beauty-Lab LLC, Case No. 1:22-cv-01297
(S.D.N.Y., Feb. 15, 2022).
The lawsuit is brought over alleged violation of the Americans with
Disabilities Act.
Beauty Lab -- http://www.beautylab.net.co/-- is a cosmetic
products manufacturer in Richardson, Texas.[BN]
The Plaintiff is represented by:
Edward Y. Kroub, Esq.
MIZRAHI & KROUB LLP
200 Vesey Street
New York, NY 10281
Phone: (212) 595-6200
Email: ekroub@mizrahikroub.com
BIOGEN INC: Seeks to Dismiss Securities Suit Pending in D. Mass.
----------------------------------------------------------------
Biogen Inc. disclosed in its Form 10-K Annual Report for the fiscal
year ended December 31, 2021, filed with the Securities and
Exchange Commission on February 3, 2022, that the company and
certain current and former officers are named as defendants in an
action filed by a shareholder on November 13, 2020, and now pending
in the U.S. District Court for the District of Massachusetts.
The action alleges violations of federal securities laws under 15
U.S.C §78j(b) and §78t(a) and 17 C.F.R. §240.10b-5 and seeks a
declaration of the action as a class action and monetary relief. An
estimate of the possible loss or range of loss cannot be made at
this time. No trial date has been set. The company has filed a
motion to dismiss, which is pending.
Biogen is a global biopharmaceutical company based in
Massachusetts.
BRADLEY UNIVERSITY: Response to Class Cert. Bid Due May 12
----------------------------------------------------------
In the class action lawsuit captioned as Doe v. Bradley University,
Case No. 1:20-cv-01264 (C.D. Ill.), the Hon. Judge Jonathan E.
Hawley entered an order that:
-- Response to the motion to certify May 12, 2022
class due by:
-- Replies due by: June 3, 2022
The nature of suit states diversity-contract dispute.
Bradley University is a private university in Peoria, Illinois.[CC]
BRENNER CAR: Order Overruling Objections to Arbitration Bid Upheld
------------------------------------------------------------------
In the case, NICOLE ZENTNER AND ANDREW KIVETT v. BRENNER CAR
CREDIT, LLC AND PAXTON SECURITIES CO. Appellants, Case No. 751 MDA
2021 (Pa. Super.), the Superior Court of Pennsylvania affirmed the
order entered in the Court of Common Pleas of Lycoming County
denying the Appellants' preliminary objections seeking to compel
arbitration.
I. Background
The matter was initiated by the filing of a class complaint on Dec.
11, 2020, by Plaintiffs/Appellees Zentner and Kivett. The
Appellants/Defendants, in the trial court, filed a single
preliminary objection to the complaint on Feb. 19, 2021, pursuant
to Pa.R.C.P. 1028(a)(6), which the Appellees answered on March 10,
2021. The Appellants filed a reply brief on April 28, 2021, and
oral argument was held on May 3, 2021.
The action is based on the Appellants' alleged improper notice of
disposition of repossessed vehicles. The Appellees, who represent
the class, purchased vehicles from. Brenner Car Credit, LLC, who
sold the vehicle, financed the transaction, and took a security
interest in the vehicle pursuant to an installment sales contract
entitled Retail Installment Contract and Security Agreement
(RICSA).
In addition to the RICSAs, and on the same day the RICSAs were
executed, the Appellees executed Buyers' Orders in connection with
the purchase of their respective vehicles. Paxton, after
assignment, became the secured party under the RICSAs. Due to
failure to make the required payments, the Appellees' vehicles were
repossessed without proper notice, according to the Appellees.
In its lone preliminary objection, Appellants claim that the
Buyers' Orders contain an arbitration clause that mandates
arbitration in the matter. Conversely, the trial court found that
because the arbitration clause is only located within the text of
the Buyers' Orders -- but not within the text of the RICSAs -- and
since the RICSAs are entirely devoid of any mention of any
arbitration agreement or the Buyers' Orders, the Appellants'
preliminary objection should be overruled.
By order May 19, 2021, the court denied the Appellants' preliminary
objection, and Appellants filed a timely notice of appeal. The
court did not order the Appellants to file a concise statement of
errors complained of on appeal pursuant to Pa.R.A.P. 1925(b), but
did file an opinion pursuant to Rule 1925(a).
On appeal, the Appellants present the following issues for the
Superior Court's review:
1. Whether the trial court erred in concluding the parties'
arbitration agreement was unenforceable under Knight v. Springfield
Hyundai, 81 A.3d 940 (Pa. Super. 2013), and Pennsylvania law.
2. Whether the trial court erred in failing to recognize that
federal law requires the arbitrator to determine, in the first
instance, the scope and application of the parties' arbitration
agreement as well as the validity of the underlying contract.
3. Whether the trial court erred in concluding the Appellees'
claims were not within the scope of the parties' broad arbitration
agreement, as federal law requires that all presumptions be applied
in favor of arbitration.
4. Whether the trial court erred in failing to consider
applicable federal law concerning the termination of agreements
containing arbitration agreements.
5. Whether the trial court erred in denying the Appellants'
preliminary objection pursuant to Pa.R.C.P. 1028(a)(6).
II. Discussion
Each of the Appellants' claims raises a challenge to the trial
court's order overruling Appellants' preliminary objection.
Therefore, the sole issue on appeal is whether the arbitration
clause found in the Buyers' Orders, but not the RICSAs, is valid
and enforceable, and, therefore, binding on the parties.
First, the Appellants claim that the trial court erred in applying
Knight, supra, to the facts of the case. Specifically, they argue
that, in Knight, the RICSA contained an integration clause and did
not reference the Buyers' Orders, whereas in the present case, the
Buyers' Orders referenced the RICSAs.
The Superior Court agrees with the trial court and finds Knight to
be controlling. In the present case, as in Knight, the parties
signed Buyers' Orders generally outlining the terms of their
vehicle sales contracts, which included an arbitration clause on
the reverse side. Similarly, the parties in both cases subsequently
agreed to installment sale contracts, which specified the details
of the sales and the financing agreements for the purchased
vehicles. Like the RICSA in Knight, which contained an integration
clause, the court found the parties intended for the RICSAs to
constitute stand-alone integrated agreements. Because the RICSAs at
issue in the case did not contain any arbitration clauses, the
court properly applied Knight and determined the arbitration clause
in the Buyers' Orders was not applicable to the instant suit.
Second, the Appellants argue that federal law requires the
arbitrator to determine, in the first instance, the scope and
application of the parties' arbitration agreement as well as the
validity of the underlying contract.
The Superior Court holds that no relief is due. It finds that the
Appellees' challenge, in the trial court, was to the applicability
and validity of the arbitration clause itself as it related to the
dispute alleged in the complaint, not the validity of the RICSA or
Buyers' Orders. As such, the Prima Paint rule requiring the
arbitrator to pass, in the first instance, on the validity of the
contract, is inapplicable to the instant facts.
Third, the Appellants argue that federal law requires that all
presumptions be applied in favor of arbitration.
The Superior Court concludes, "with positive assurance," that the
MVSFA requires any RICSA to contain all of the agreements between
buyer and seller relating to the installment sale of a motor
vehicle, and because the RICSAs at issue in the case did not
include any arbitration agreement, there was none made between the
parties covering the instant dispute. As such, the arbitration
clause found in the Buyers' Orders is not "susceptible of an
interpretation that covers the asserted dispute."
Fourth, the Appellants argue that federal law provides for
arbitration clauses to remain in effect after the termination of
the agreements in which they are contained. Specifically, they
argue that the arbitration clause in the Buyers' Orders survived,
even if it was subsumed by the RICSA, and was included in the final
agreement between the parties.
Nevertheless, in the case, again, the entire agreement was required
to have been included in the RICSA. Moreover, the agreement in Bank
Julius Baer contained an arbitration clause that was never
terminated and, instead, was expressly incorporated, because the
text of the incorporation clause stated, "without exception, all
the rights and remedies provided in this Agreement are cumulative
and not exclusive of any rights or remedies provided under any
other agreement or by law or in equity." Conversely, in the case,
the parties agreed that the RICSAs would constitute the entirety of
the agreements.
Accordingly, having failed to discern any abuse of discretion or
error of law, the Superior Court concludes that the court properly
overruled the Appellants' preliminary objection seeking to compel
arbitration. It affirmed the Order and entered judgment.
A full-text copy of the Court's Feb. 8, 2022 Decision is available
at https://tinyurl.com/p36s66tw from Leagle.com.
BROCK GROUP: Scheduling Order Entered in Valentic Class Suit
------------------------------------------------------------
In the class action lawsuit captioned as ALAN VALENTIC v. THE BROCK
GROUP, INC., BROCK INDUSTRIAL SERVICES, LLC, and BROCK SERVICES,
LLC, Case No. 2:21-cv-01789-WSH (W.D. Pa.), the Hon. Judge Scott
Hardy entered an scheduling order as follows:
-- Initial disclosures required by March 11, 2022
Rule 26(a) of the Federal Rules
of Civil Procedure shall be made
by:
-- Any motions to amend the pleadings Oct. 10, 2022
or add new parties shall be filed by:
-- Class Certification discovery shall Oct. 10, 2022
be completed by:
-- The Plaintiff's Motion and Supporting Nov. 9, 2022
Memorandum in Support of Class
Certification and all supporting
evidence shall be filed by:
-- The Defendants' Memorandum in Dec. 9, 2022
Opposition to Class Certification
and all supporting evidence shall
be filed by:
Brock Group provides construction and insulation services.
A copy of the Court's order dated Feb. 9, 2021 is available from
PacerMonitor.com at https://bit.ly/3uQR3iL at no extra charge.[CC]
BUNCH BIKES: Weekes Files ADA Suit in S.D. New York
---------------------------------------------------
A class action lawsuit has been filed against Bunch Bikes Inc. The
case is styled as Robert Weekes, individually, and on behalf of all
others similarly situated v. Bunch Bikes Inc., Case No.
1:22-cv-01338 (S.D.N.Y., Feb. 16, 2022).
The lawsuit is brought over alleged violation of the Americans with
Disabilities Act.
Bunch Bikes -- https://bunchbike.com/ -- makes award-winning
electric cargo bikes.[BN]
The Plaintiff is represented by:
Edward Y. Kroub, Esq.
MIZRAHI KROUB LLP
200 Vesey Street, Ste. 24th Floor
New York, NY 10281
Phone: (212) 595-6200
Email: ekroub@mizrahikroub.com
CALIFORNIA OLIVE: Paguada Files ADA Suit in S.D. New York
---------------------------------------------------------
A class action lawsuit has been filed against California Olive
Ranch, Inc. The case is styled as Josue Paguada, on behalf of
himself and all others similarly situated v. California Olive
Ranch, Inc., Case No. 1:22-cv-01296 (S.D.N.Y., Feb. 15, 2022).
The lawsuit is brought over alleged violation of the Americans with
Disabilities Act.
California Olive Ranch, Inc. -- https://californiaoliveranch.com/
-- manufactures food products.[BN]
The Plaintiff is represented by:
Edward Y. Kroub, Esq.
MIZRAHI KROUB LLP
200 Vesey Street, Ste. 24th Floor
New York, NY 10281
Phone: (212) 595-6200
Email: ekroub@mizrahikroub.com
CALM IN YOUR PALM: Weekes Files ADA Suit in S.D. New York
---------------------------------------------------------
A class action lawsuit has been filed against Calm in your Palm,
LLC. The case is styled as Robert Weekes, individually, and on
behalf of all others similarly situated v. Calm in your Palm, LLC,
Case No. 1:22-cv-01339 (S.D.N.Y., Feb. 16, 2022).
The lawsuit is brought over alleged violation of the Americans with
Disabilities Act.
Calm In Your Palm's (CIYP's) purpose is to create books and
accompanying products that delight children & bond families.[BN]
The Plaintiff is represented by:
Edward Y. Kroub, Esq.
MIZRAHI KROUB LLP
200 Vesey Street, Ste. 24th Floor
New York, NY 10281
Phone: (212) 595-6200
Email: ekroub@mizrahikroub.com
CDK GLOBAL: Parties' Bids for Summary Judgment Remain Pending
--------------------------------------------------------------
CDK Global, Inc. disclosed in its Form 10-Q Report for the
quarterly period ended December 31, 2021, filed with the Securities
and Exchange Commission on February 4, 2022, that the parties'
cross-motions for summary judgment were fully briefed and remain
pending.
Teterboro Automall, Inc. brought a putative class action suit on
behalf of itself and all similarly situated automobile dealerships
against CDK Global, LLC. Teterboro's suit was originally filed on
October 19, 2017, in the U.S. District Court for the District of
New Jersey. Since that time, several more putative class actions
have been filed in a number of federal district courts, with
substantively similar allegations; all of them have been
consolidated with the MDL proceeding.
On June 4, 2018, a consolidated class action complaint was filed on
behalf of a putative class made up of all dealerships in the United
States that directly purchased the Dealer Management System (DMS)
and/or allegedly indirectly purchased DMS or data integration
services from CDK Global, LLC. CDK Global, LLC moved to dismiss the
complaint, or in the alternative, compel arbitration of certain of
the cases while staying the remainder pending the outcome of those
arbitration proceedings; its motion to dismiss was granted in part
and denied in part, while its motion to compel arbitration was
denied.
On February 22, 2019, CDK Global, LLC filed an answer to the
remaining claims in Putative Dealership Class Plaintiffs' complaint
and asserted counterclaims against the Putative Dealership Class
Plaintiffs. Plaintiffs filed a motion to dismiss CDK Global, LLC's
counterclaims; that motion was granted in part and denied in part
on September 3, 2019.
On October 23, 2018, the Putative Dealership Class Plaintiffs and
Reynolds filed a motion for preliminary approval of settlement and
for conditional certification of the proposed settlement class. The
court finally approved that settlement on January 22, 2019. The
parties' cross-motions for summary judgment were fully briefed as
of September 28, 2020 and remain pending.
CDK Global Inc. is a provider of retail technology and software as
a service (SaaS) solutions based in Illinois.
COLLECTO INC: Davis Suit Transferred to D. Colorado
---------------------------------------------------
The case styled as Brenda Davis, and all others similarly situated
v. Collecto, Inc. doing business as: EOS CCA, Defendant; DISH
Network, LLC, Interested Party; Case No. 3:21-cv-00044 was
transferred from the U.S. District Court for the Southern District
of West Virgina, to the U.S. District Court for the District of
Colorado on Feb. 15, 2022.
The District Court Clerk assigned Case No. 1:22-mc-00035-PAB to the
proceeding.
Collecto, Inc. doing business as EOS CCA --
https://www.eos-cca.com/ -- headquartered in Norwell,
Massachusetts, is a provider of customer care and receivables
management services.[BN]
The Plaintiffs appear pro se.
The Interested Party is represented by:
David Matthew Krueger, Esq.
BENESCH FRIEDLANDER COPLAN & ARONOFF LLP-CLEVELAND
200 Public Square
BP America Building, Suite 2300
Cleveland, OH 44114-2378
Phone: (216) 363-4500
Fax: (216) 363-4588
Email: dkrueger@beneschlaw.com
COMPREHENSIVE HEALTHCARE: Extension of Briefing Schedule Sought
---------------------------------------------------------------
In the class action lawsuit captioned as ERIK BLAIR, on behalf of
himself and similarly situated employees, v. COMPREHENSIVE
HEALTHCARE MANAGEMENT SERVICES, LLC, ET AL., Case No.
2:18-cv-00254-WSS (W.D. Pa.), the Parties ask the Court to enter an
order extending by 10 days the briefing schedule on Plaintiffs'
motion for class certification.
Per this Court's order dated January 10, 2022, the deadline for
Plaintiffs' motion for class certification is February 10, 2022.
On February 9, 2022, counsel for the Defendants notified
Plaintiffs' counsel that there were an additional 2,400 documents
on its discovery platform to be produced, which the Defendants
discovered on February 8, 2022. Defendants believe that a technical
issue occurred during the ESI review.
The Defendants have committed to completing a production of these
documents no later than Monday, February 14, 2022.
Without waiving any arguments concerning Defendants' prior
non-production of these documents, the Plaintiffs' counsel believes
that interests of fairness weigh in favor of extending the briefing
schedule on Plaintiffs' motion for class certification by ten days,
so that Plaintiffs' counsel can review the additional documents
before filing the motion for class certification.
Comprehensive Healthcare is a private company. The company
currently specializes in the hospital & health care area.
A copy of the Parties' motion dated Feb. 9, 2021 is available from
PacerMonitor.com at https://bit.ly/3HSTMfd at no extra charge.[CC]
The Plaintiff is represented by:
Joseph H. Chivers, Esq.
THE EMPLOYMENT RIGHTS GROUP, LLC
First & Market Building
100 First Avenue, Suite 650
Pittsburgh, PA 15222
Telephone: (412) 227-0763
Facsimile: (412) 774-1994
E-mail: jchivers@employmentrightsgroup.com
- and -
John R. Linkosky, Esq.
715 Washington Avenue
Carnegie, PA 15106-4107
Telephone: (412) 278-1280
E-mail: linklaw@comcast.net
- and -
Jeffrey W. Chivers, Esq.
Theodore I. Rostow, Esq.
CHIVERS LLP
300 Cadman Plaza West, 12th Floor
Brooklyn, NY 11201
Telephone: (718) 210-9825
E-mail: jwc@chivers.com
tir@chivers.com
The Defendants are represented by:
Catherine A. Cano, Esq.
Marla N. Presley, Esq.
JACKSON LEWIS P.C.
10050 Regency Circle, Suite 400
Telephone: (402) 827-4263
E-mail: catherine.cano@jacksonlewis.com
marla.presley@jacksonlewis.com
CONNECTICUT: Summary Judgment Bid in Gottlieb Class Suit Granted
----------------------------------------------------------------
In the case, ANDY GOTTLIEB, ET AL., Plaintiffs v. NED LAMONT, ET
AL., Defendant, Civil Case No. 3:20-CV-00623 (JCH) (D. Conn.),
Judge Janet C. Hall of the U.S. District Court for the District of
Connecticut issued a Ruling:
(1) granting the State Defendants' Motion to Exclude the
Expert Testimony of Plaintiff Gottlieb;
(2) granting in part and denying in part the Plaintiffs'
Motion to Exclude the Expert Testimony of Bromley and
McDonough;
(3) denying the Plaintiffs' Motion to add a party plaintiff;
(4) denying the Plaintiffs' Motion for Summary Judgment;
(5) granting the State Defendants' Motion for Summary
Judgment; and
(6) granting the Plaintiffs' Motion for Leave to File Excess
Pages.
I. Background
Plaintiffs Andy Gottlieb, Lorna Chand, and Jason W. Bartlett bring
the action against the State Defendants (Gov. Ned Lamont, Secretary
of State Denise Merrill), and Intervenor-Defendant Democratic State
Central Committee ("DSCC"), alleging that Connecticut's ballot
access laws for party primaries are unconstitutional under the
First and Fourteenth Amendments.
In their Second Amended Complaint, the Plaintiffs bring a single
Count against the Defendants, alleging that Connecticut's laws for
accessing the ballot for party primaries unduly burden their rights
under the First and Fourteenth Amendment. They seek various
declaratory and injunctive remedies, including enjoining
Connecticut's primary ballot access laws to allow them to begin
petitioning for ballot access on the first business day of 2022.
The Plaintiffs are Connecticut voters, former candidates for public
office, and -- in the case of Plaintiff Gottlieb -- a candidate for
state representative in 2022. Gottlieb also ran for state senate in
2018, but fell short of accessing the primary ballot by 32
signatures. In 2020, Plaintiff Bartlett ran for state senate as
well. He also fell short of accessing the primary ballot. Both
Gottlieb and Bartlett had collected enough raw signatures during
their campaigns to qualify for the primary ballot; however, both
had signatures excluded because of various deficiencies, causing
them to drop below the threshold for ballot access. Plaintiff Chand
served as Gottlieb's treasurer during his 2018 campaign and alleges
that she was prevented from voting for Gottlieb, her candidate of
choice, in the 2018 primary because of Connecticut's overly
restrictive primary ballot access laws.
The ballot access laws for state senate and other district offices
that the Plaintiffs challenge provide candidates with three avenues
to appear on the ballot for party primaries. First, a candidate can
receive the endorsement of the party at the party convention. For
candidates that do not receive the endorsement, section 9-400 of
the Connecticut General Statutes provides two additional avenues:
(1) by receiving at least 15% of the delegate vote at a convention
held by that political party; or (2) by circulating a petition and
obtaining the signatures of five percent of the enrolled members of
the party in the district. This second option, the petitioning
process, was added by the Connecticut legislature by Public Act
03-241, effective Jan. 1, 2004.
In 2020, these requirements were relaxed due to the ongoing
COVID-19 pandemic. Governor Lamont issued an Executive Order that
"extended the deadline to submit petitions by two days"; eliminated
the in-person signature requirement; and reduced the required
number of signatures to petition on to the primary ballot by thirty
percent. Those modifications applied only to "the primary elections
conducted in 2020," and there is nothing in the record indicating
that, despite the recent spike in cases and deaths across the
country and in Connecticut due to the Omicron variant, Governor
Lamont is considering similar modifications for the 2022
primaries.
It was against this backdrop that the Plaintiffs first filed the
case in 2020. A day after Governor Lamont issued his Executive
Order, the Plaintiffs moved for an emergency injunction to, inter
alia, lower "the signature requirement to one percent of the
registered party members in a given district and extend the
deadline" to file those signatures for an additional 34 days. The
Court denied their Motion on June 8, 2020, concluding that the
Plaintiffs had "failed to demonstrate a clear or substantial
likelihood of success on the merits." The Court was careful,
however, to limit its analysis to the Plaintiffs' likelihood of
success in challenging Connecticut's ballot access laws as amended
by Governor Lamont's Executive Order.
Pending before the Court are six separate Motions, including the
parties' Cross-Motions for Summary Judgment.
First, the Plaintiffs and the State Defendants have each moved to
exclude expert testimony proffered by the other side. The
Defendants seek to exclude the expert testimony of Plaintiff
Gottlieb. The Plaintiffs have opposed this Motion. They also, in
turn, have moved to exclude what they argue is the expert testimony
brought forth by the State Defendants in the form of sworn
declarations by Theodore E. Bromley and Thomas McDonough.
Second, after the Cross-Motions for Summary Judgment were joined,
the Plaintiffs moved to add an additional party as a plaintiff to
the action. Both the State Defendants and the DSCC have opposed
this Motion.
Third, the Plaintiffs and the State Defendants have cross-moved for
summary judgment. Both have filed Memoranda in support of their
position.
Finally, in support of their Motion for Summary Judgment, the
Plaintiffs have moved for leave to file excess pages for their
Local Rule 56(a)1 Statement. That Motion is unopposed.
As Judge Hall assesses the parties' cross-motions for summary
judgment following discovery, no such Executive Order is in place
for the 2022 elections. She first addresses the parties' two
Motions to Exclude and the Plaintiffs' Motion to add an additional
plaintiff to the case. After ruling on those motions, she turns to
the cross-motions for summary judgment.
II. Discussion
A. Motion to Exclude
The State Defendants have moved to exclude the expert testimony of
Plaintiff Gottlieb, who has prepared a report comparing primary
ballot access laws across the 50 states. They argue, inter alia,
that Gottlieb is not qualified to present expert testimony on
ballot access laws. The Plaintiffs, in turn, have moved to exclude
what they argue is the expert testimony of two of the State
Defendants' declarants, Bromley and McDonough. They argue that the
State defendants failed to disclose this testimony in accordance
with the Court's scheduling order.
1. Bromley and McDonough
In response to the Plaintiffs' Motion to Exclude the expert
testimony of Bromley and McDonough for failure to disclose, the
State Defendants make two arguments. First, they contend that "most
of the challenged statements are factual assertions, not opinions."
Second, to the extent that they are offering opinions, they are
doing so as lay witnesses pursuant to Rule 701.
Judge Hall finds that neither of these arguments is availing. She
explains that when evaluating whether testimony should be precluded
under Rule 37 for failure to disclose under Rule 26(a), courts
consider four factors," citing Chamberlain Estate of Chamberlain v.
City of White Plains, 960 F.3d 100, 117 (2d Cir. 2020). These
factors, commonly known as the Softel factors, are: (1) the party's
explanation for the failure to comply with the discovery order; (2)
the importance of the testimony of the precluded witness; (3) the
prejudice suffered by the opposing party as a result of having to
prepare to meet the new testimony; and (4) the possibility of a
continuance.'
First, Judge Hall finds that significant portions of the Bromley
and McDonough declarations purport to offer opinions. Second, the
opinions the two declarants offer do not meet the Rule 701 criteria
for admissible opinions from lay witnesses. Thus, taken together,
the Softel factors counsel towards excluding only the testimony
from Bromley and McDonough, including the testimony identified
above, see supra at 12-13, that could only be admitted pursuant to
Rule 702. The Plaintiffs' Motion to Exclude is therefore granted in
part and denied in part, and the testimony of Bromley and McDonough
is admitted only to the extent that it does not constitute expert
testimony under Rule 702.
2. Gottlieb
The State Defendants have moved to exclude the expert testimony of
Plaintiff Gottlieb, arguing, inter alia, that he is not qualified
to testify as an expert in the matter.
Judge Hall agrees. She holds that there is nothing in the record to
indicate that Gottlieb possesses the requisite "knowledge, skill,
experience, training, or education" to testify as an expert on
primary ballot access laws specifically or election law more
generally. Gottlieb is clearly intelligent and well-educated.
However, admitting his report would risk transforming any
discerning individual with an unrelated Master's degree into an
expert in any subject in which they take a keen interest. The law
does not support such a broad definition of expertise.
Hence, Judge Hall cannot conclude that Gottlieb is qualified to
testify as an expert. The State Defendants' Motion to Exclude is,
therefore, granted.
B. Motion to Add Party Plaintiff
Next, following the conclusion of motion practice related to the
parties' Cross-Motions for Summary Judgment, the Plaintiffs have
moved pursuant to Rule 21 to add another plaintiff to the lawsuit,
Anthony DiLizia. DiLizia is running for United States Congress as a
Democrat in Connecticut in 2022. It appears that the Plaintiffs'
purpose in seeking to add DiLizia is to protect against the
standing arguments raised by the State Defendants in their Motion
for Summary Judgment: At the time the Motions for Summary Judgment
were joined, neither Gottlieb, Bartlett, or Chand were running for
office in 2022, while DiLizia was. Plaintiff Gottlieb later
announced his candidacy in 2022 as well. According to the
Plaintiffs, to the extent that the Court finds "that the
Defendants' Article III standing argument has merit, Mr. DiLizia's
addition to the case cures any Article III defect."
Judge Hall rules that the deadline for the Plaintiffs to amend
their pleadings has long passed. Moreover, permitting them to add
another party at this time would frustrate the interests of
justice. Further delay in the case is especially unwarranted given
the fast-approaching 2022 primary elections. Finally, the
Plaintiffs will suffer no prejudice from the Court denying their
Motion, as the Court does not believe they have a standing issue in
the case. Given that the Plaintiffs' argument about good cause
appears to be premised on "curing the standing and ripeness issues
raised by the State Defendants", the Court's determination that
those arguments by the State Defendants do not have merit obviates
that rationale. That, coupled with the waste of judicial resources
and undue delay permitting such a late amendment to the pleadings
would cause, counsels against granting the Plaintiffs' Motion.
Judge Hall denied the Motion to Add Party Plaintiff.
C. Cross-Motions for Summary Judgment
Judge Hall next addresses the merits of the parties' cross-Motions
for Summary Judgment. First, she finds that the Plaintiffs have
standing and that their claims are ripe for adjudication. She then
concludes that, on the record before her and under the prevailing
standards, Connecticut's restrictions on primary ballot access are
reasonable and non-discriminatory, and serve an important state
interest in regulating elections.
1. Standing and Ripeness
As an initial matter, the State Defendants argue that the
Plaintiffs lack standing and that their claims are not ripe. They,
however, ignore the fact that the Second Circuit has already
addressed this exact question in a similar context and rejected
both of these arguments, Judge Hall finds. Second, Plaintiff
Gottlieb has standing because he is running for office again in
2022, and as such is subject to the very primary ballot access laws
the Plaintiffs challenge in the case. Given that the Plaintiffs
have brought forth evidence demonstrating a "substantial risk" that
Connecticut's ballot access laws will lead to the suppression of
speech, they have standing to bring the suit.
2. The Anderson-Burdick Framework
Although there is "no litmus-paper test [that] will separate valid
ballot-access provisions from invalid interactive speech
restrictions", Judge Hall explains that courts in this Circuit
apply a two-step inquiry to weigh the severity of a ballot access
law against a state's interest in promulgating such a restriction.
The Second Circuit has summarized this test, commonly referred to
as the "Anderson-Burdick" framework, as follows: First, they
ascertain the extent to which the challenged restriction burdens
the exercise of the speech and associational rights at stake. The
restriction could qualify as reasonable and nondiscriminatory or as
severe. Once they have resolved this first question, they proceed
to the second step, in which they apply one or another pertinent
legal standard to the restriction.
In conducting this inquiry, courts do not consider each avenue to
the ballot in isolation; rather, they must "consider the challenged
regulations, and the burdens they impose 'within the context of the
state's overall scheme of election regulations.'" "Under this
totality approach", if any of the three avenues Connecticut
provides to access the primary ballot "would be constitutional
standing alone, the others must be viewed as broadening the
opportunities for ballot access and as a fortiori constitutional."
3. Connecticut's Overall Election Scheme and the Burden on
Plaintiffs' Rights
The first step of the Anderson-Burdick test requires the court to
assess whether the burden on plaintiffs' rights "qualifies as
reasonable and nondiscriminatory or as severe." The hallmark of a
severe burden is exclusion or virtual exclusion from the ballot. In
the case, the Plaintiffs focus their efforts only on challenging
the reasonableness of the third avenue to access the primary ballot
in Connecticut -- petitioning.
Judge Hall finds that the evidence in the record as to how
difficult these thresholds would be to obtain is disputed. Reading
the evidence in the light most favorable to the Plaintiffs, she
says, the signature requirements do not virtually exclude
candidates from accessing the ballot through petitioning. The
Plaintiffs have failed to bring forth evidence upon which a
reasonable jury could conclude that Connecticut's overall scheme
for accessing the primary ballot imposes a severe burden on them.
4. Connecticut's Asserted Interest
The Defendants have asserted several important state interests.
First, Connecticut "has a strong interest in conducting orderly,
fair, and transparent elections." In addition, the petitioning
deadlines promulgated by the state also serve the state's "interest
in the orderly and efficient administration of elections."
Judge Hall concludes that there is no evidence in the record upon
which a reasonable jury could conclude that the state's interest in
promulgating these regulations does not outweigh the reasonable and
nondiscriminatory burdens they impose on the Plaintiff's rights.
She therefore grants the State Defendants' Motion for Summary
Judgment, and denies the Plaintiffs' Motion for Summary Judgment.
III. Conclusion
For the reasons she stated, Judge Hall: (1) granted the State
Defendants' Motion to Exclude the Expert Testimony of Plaintiff
Gottlieb; (2) granted in part and denied in part the Plaintiffs'
Motion to Exclude the Expert Testimony of Bromley and McDonough;
(3) denied the Plaintiffs' Motion to add a party plaintiff; (4)
denied the Plaintiffs' Motion for Summary Judgment; (5) granted the
State Defendants' Motion for Summary Judgment, and; (6) granted the
Plaintiffs' Motion for Leave to File Excess Pages.
A full-text copy of the Court's Feb. 8, 2022 Ruling is available at
https://tinyurl.com/vnz6w6bd from Leagle.com.
COUNTRY CLUB: Bandas Files Suit in Tex. Dist. Ct.
-------------------------------------------------
A class action lawsuit has been filed against Country Club Estates
Association, Inc. The case is styled as Chris Bandas, for all other
similarly situated v. Country Club Estates Association, Inc., Case
No. 2022DCV-0522-A (Tex. Dist. Ct., Nueces Cty., Feb. 16, 2022).
The nature of suit is stated as Other Contract.
The Country Club Estates Homeowners Association (CCEH) --
http://www.countryclubestates.org/-- is a nonprofit Corporation
that owns and operates the Clubhouse and Pool facilities.[BN]
CREDIT CORP: Asbury Suit Remanded to Davidson County Superior Court
-------------------------------------------------------------------
Judge Catherine C. Eagles of the U.S. District Court for the Middle
District of North Carolina remanded the case, RANDY ASBURY, on
behalf of himself and others similarly situated, Plaintiff v.
CREDIT CORP SOLUTIONS, INC., Defendant, Case No. 1:21-CV-650
(M.D.N.C.), to the Superior Court of Davidson County.
Introduction
Plaintiff Asbury filed suit in state court alleging that the
Defendant communicated information about his alleged debt to a
third party. Credit Corp removed the case to the Court, asserting
federal question jurisdiction based on Mr. Asbury's federal Fair
Debt Collection Practices Act claim.
When the Court questioned whether the Plaintiff had standing to
pursue that claim in federal court, and despite its burden to show
subject matter jurisdiction, Credit Corp declined to identify the
concrete injury-in-fact allegations necessary to establish
jurisdiction. When a litigant invokes the jurisdiction of the court
and then fails to identify the alleged facts necessary to show that
jurisdiction exists, remand is appropriate.
Background
In July 2021, Mr. Asbury brought the putative class action in North
Carolina state court, alleging Credit Corp violated the North
Carolina Debt Collection Act, N.C. Gen. Stat. Section 75-50 et
seq., the North Carolina Unfair and Deceptive Trade Practices Act,
N.C. Gen. Stat. Section 75.1-1, and the federal Fair Debt
Collection Practices Act, 15 U.S.C. Section 1692 et seq. The
putative class consists of consumers in North Carolina whose debt
information Credit Corp sent to a third party without their
consent.
Credit Corp removed the action to the Court based on federal
question jurisdiction arising out of the FDCPA claim. The Court sua
sponte questioned standing in light of TransUnion LLC v. Ramirez,
141 S.Ct. 2190 (2021) and ordered the parties to show cause why the
case should not be remanded to state court for lack of subject
matter jurisdiction.
According to the complaints, Mr. Asbury owes money to an
unidentified creditor, and that debt was in default. The creditor
"transferred" the debt to Credit Corp, a debt collector. As part of
attempting to collect that debt, Credit Corp used a third-party
vendor to prepare and send letters to Mr. Asbury from Credit Corp
about his debt. It sent information about Mr. Asbury's debt to the
third-party vendor who "populated" some or all the debt information
into a "prepared template," printed the resulting letter, and
mailed it to Mr. Asbury. The vendor prepared and sent two such
letters from Credit Corp to Mr. Asbury, who received and read the
letters. Mr. Asbury did not consent to Credit Corp sharing his debt
information with the third-party vendor.
Analysis
Judge Eagles assumes without deciding that it was a violation of
the Fair Debt Collection Practices Act for Credit Corp to share Mr.
Asbury's debt information with its vendor. But a statutory
violation alone is not sufficient to confer standing. As the
Supreme Court has made clear, a statutory violation does not
necessarily cause concrete harm. Nor is it enough that both parties
agree that Mr. Asbury has standing.
Judge Eagles holds that allowing Credit Corp to remove a case based
on subject matter jurisdiction that it is unwilling to defend at
the outset increases the likelihood that the Court will issue a
hypothetical decision of no consequence. It also precludes the
Court from addressing objections to subject matter jurisdiction
that Credit Corp can later raise on appeal, should it lose a
dispositive motion. If Credit Corp wants the Ccourt to exercise
jurisdiction over the merits, which it says it does, then it must
demonstrate that the Court has jurisdiction -- jurisdiction to rule
against it as well as in favor of it.
Spokeo requires the complaint to include "clearly alleged facts
demonstrating each element" of standing. In the absence of specific
allegations of injury in fact from the alleged disclosure at issue,
the Court does not have subject matter jurisdiction and remand is
appropriate.
Conclusion
For these reasons, Judge Eagles remanded the case to the Superior
Court of Davidson County. No decision is made on the motion to
dismiss, which can be heard in state court.
A full-text copy of the Court's Feb. 8, 2022 Memorandum Opinion &
Order is available at https://tinyurl.com/35xz9mx7 from
Leagle.com.
CVS HEALTH: Lerner Sues Over Benzene Contaminated Products
----------------------------------------------------------
Jasmine Lerner, on behalf of herself and all others similarly
situated v. CVS HEALTH CORPORATION, Case No. 1:22-cv-01013-LJL
(S.D.N.Y., Feb. 4, 2022), is brought against Defendant for the
manufacture, marketing, and sale of CVS After-sun Aloe Vera
Soothing Spray and After-Sun Aloe Vera Moisturizing Gel (the
"Products") that are contaminated with the carcinogenic impurity
benzene.
This is a class action lawsuit against Defendant for the
manufacture and sale of the Products, which were defective because
they contain benzene, a carcinogenic chemical impurity that has
been linked to leukemia and other cancers. The Products are not
designed to contain benzene (nor is the presence of benzene
disclosed in any way on the Products' labels), and in fact no
amount of benzene is acceptable in the Products. However,
Defendant's Products not only contained benzene, but many contained
benzene at levels far exceeding acceptable limits set by the United
States Food & Drug Administration ("FDA"), including even emergency
interim limits. The presence of benzene in the Products renders
them unsafe and worthless, and unsuitable for their principal and
intended purpose.
While investigating the carcinogenic potential of active
ingredients in sun care products, Valisure, an online pharmacy
registered with the FDA, recently detected high levels of benzene,
a known human carcinogen, in the Products. Valisure tested
Defendant's Products using a sophisticated gas chromatography flame
ionization test modified to follow FDA guidance for impurities
detection. Valisure's testing revealed quantities of benzene in the
Products in excess of the "FDA concentration limit of 2 parts per
million (ppm)." Defendant's Products contained among the highest
concentrations of benzene of all of the products tested by
Valisure.
Benzene is a component of crude oil, gasoline, and cigarette smoke,
and is one of the elementary petrochemicals. The Department of
Health and Human Services has determined that benzene causes cancer
in humans. Benzene is not listed as an ingredient on the Products'
labels. Defendant does not disclose the actual or potential
presence of benzene in its Products at all on the Product's
labeling, or in any advertising or website promoting the Product.
As a manufacturer, distributor, and seller of a cosmetics product,
Defendant had and has a duty to ensure that its Products did not
contain excessive (or any) levels of benzene, including through
regular testing. But based on Valisure's testing results, Defendant
made no reasonable effort to test its Products for benzene or other
impurities. Nor did it disclose to Plaintiff or any other consumers
in any product advertising, labeling, packaging, or marketing that
its Products contained benzene, let alone at levels in certain
Products that are many multiples of the emergency, interim limit
set by the FDA.
When Plaintiff purchased Defendant's Products, Plaintiff did not
know, and had no reason to know, that Defendant's Products were
contaminated with benzene, adulterated and misbranded, and thus
unlawful to sell or purchase as set forth herein. Not only would
Plaintiff not have purchased Defendant's Products at all had she
known the Products contained benzene, she would not have been
capable of purchasing them if Defendant had done as the law
required and tested those products for benzene and other
carcinogens, reproductive toxins, and impurities, says the
complaint.
The Plaintiff purchased Defendant's After-Sun Aloe Vera Soothing
Spray from a CVS location in New York.
The Defendant sold the contaminated Products at its retail
locations and online in the state of New York and nationwide.[BN]
The Plaintiff is represented by:
Andrew J. Obergfell, Esq.
BURSOR & FISHER, P.A.
888 Seventh Avenue
New York, NY 10019
Phone: (646) 837-7150
Facsimile: (212) 989-9163
Email: aobergfell@bursor.com
DEKALB COUNTY, GA: Maze II Files Suit in N.D. Illinois
------------------------------------------------------
A class action lawsuit has been filed against Reed, et al. The case
is styled as Sheldon A. Maze II, a class of unknown persons
similarly situated v. J. Reed, R. Tyler, R. Brown, M. Mancera, J.
Simmons, T. Boyd, Deputies; A. Ralls, Sgt.; A. McRoberts, Lt.; C.
Parnow, Chief; J. Klein, Chief; A. Bonilla, Deputy; E. Alcaraz,
Deputy; C. Musil, Deputy; Shannie, R.N.; Satish Patel, M.D.; DeKalb
County Sheriff's Department; City of Sycamore, Illinois; DeKalb
County Sheriff; County of DeKalb; Other Unknown Law Enforcement
officers; Of The DeKalb County Sheriff, Case No. 3:22-cv-50037
(N.D. Ill., Feb. 10, 2022).
The nature of suit is stated as Civil Rights (Prison Condition).
J. Reed is a deputy sheriff.[BN]
The Plaintiff appears pro se.
DENTAL EQUITIES: Mastercard's Bid to Reconsider Order Tossed
------------------------------------------------------------
In the class action lawsuit captioned as SCOMA CHIROPRACTIC, P.A.,
a Florida corporation, FLORENCE MUSSAT M.D., S.C., an Illinois
service corporation, and WILLIAM P. GRESS, an Illinois resident,
individually and as the representatives of a class of
similarly-situated persons, v. DENTAL EQUITIES, LLC, FIRST ARKANSAS
BANK & TRUST, MASTERCARD INTERNATIONAL INCORPORATED, a Delaware
corporation, and JOHN DOES 1-10, Case No. 2:16-cv-00041-JLB-MRM
(M.D. Fla.), the Hon. Judge John L. Bandalamenti entered an order:
1. denying Mastercard's motion for Reconsideration of Order
granting in part and denying in part plaintiffs' second
amended motion for class certification and its motion for
leave to submit a reply; and
2. denying as moot Mastercard's Motion for additional time to
file reply.
Following conferral with defense counsel and within twenty-one days
from the date of this Order, the Plaintiffs shall file a proposed
form and method of dissemination of notice as to the certified
Stand-Alone Fax Machine Class, Judge Bandalamenti says.
This is a junk fax case brought pursuant to the Telephone Consumer
Protection Act of 1991, as amended by the Junk Fax Prevention Act
of 2005. The Plaintiffs allege that faxes advertising a Mastercard
credit card were sent to fax numbers without the recipients'
permission and were received on stand-alone fax machines and via an
online fax service.
The Plaintiffs moved to certify a class of all individuals who
received the faxes and, alternatively, certification of classes of
those who received the fax on a stand-alone machine and those who
received the fax via an online fax service.
MasterCard provides payment processing products.
A copy of the Court's order dated Feb. 9, 2021 is available from
PacerMonitor.com at https://bit.ly/3t0g9t1 at no extra charge.[CC]
EARTHLY BODY: Abreu Files ADA Suit in S.D. New York
---------------------------------------------------
A class action lawsuit has been filed against Earthly Body, Inc.
The case is styled as Luigi Abreu, individually, and on behalf of
all others similarly situated v. Earthly Body, Inc., Case No.
1:22-cv-01328 (S.D.N.Y., Feb. 16, 2022).
The lawsuit is brought over alleged violation of the Americans with
Disabilities Act.
Earthly Body -- https://earthlybody.com/ -- offers customers
nature-based personal care products infused with CBD Oil, Hemp Oil,
& other Essential Oils since 1996.[BN]
The Plaintiff is represented by:
Edward Y. Kroub, Esq.
MIZRAHI & KROUB LLP
200 Vesey Street
New York, NY 10281
Phone: (212) 595-6200
Email: ekroub@mizrahikroub.com
ELASTIQUE ATHLETICS: Fischler Files ADA Suit in E.D. New York
-------------------------------------------------------------
A class action lawsuit has been filed against Elastique Athletics
LLC. The case is styled as Brian Fischler, individually and on
behalf of all other persons similarly situated v. Elastique
Athletics LLC doing business as: Elastique Athletics, Case No.
1:22-cv-00844 (E.D.N.Y., Feb. 15, 2022).
The lawsuit is brought over alleged violation of the Americans with
Disabilities Act.
Elastique Athletics -- https://www.elastiqueathletics.com/ --
offers compression leggings with a lymphatic twist.[BN]
The Plaintiff is represented by:
Christopher Howard Lowe, Esq.
LIPSKY LOWE LLP
420 Lexington Avenue, Suite 1830
New York, NY 10170-1830
Phone: (212) 764-7171
Email: chris@lipskylowe.com
ELDERLY INSTRUMENTS: Abreu Files ADA Suit in S.D. New York
----------------------------------------------------------
A class action lawsuit has been filed against Elderly Instruments,
Inc. The case is styled as Luigi Abreu, individually, and on behalf
of all others similarly situated v. Elderly Instruments, Inc., Case
No. 1:22-cv-01299 (S.D.N.Y., Feb. 15, 2022).
The lawsuit is brought over alleged violation of the Americans with
Disabilities Act.
Elderly Instruments -- https://www.elderly.com/ -- is a music store
specializing in new, used & vintage guitars, banjos, mandolins,
ukuleles and more.[BN]
The Plaintiff is represented by:
Edward Y. Kroub, Esq.
MIZRAHI & KROUB LLP
200 Vesey Street
New York, NY 10281
Phone: (212) 595-6200
Email: ekroub@mizrahikroub.com
EQUINOX HOLDINGS: Order on Class Cert. Briefing Sched Entered
-------------------------------------------------------------
In the class action lawsuit captioned as MARJORIE SAINT HUBERT,
VALERIE MARTINEZ, and THERESE SVENGERT, individually and on behalf
of all others similarly situated, v. EQUINOX HOLDINGS, INC., a
Foreign Corporation; and DOES 1 through 50, inclusive, Case No.
2:21−cv−00086−VAP−JEM (C.D. Cal.), the Hon. Judge Philip S.
Gutierrez entered an order on stipulation re continuance of
plaintiffs' deadline to file their class certification brief and
related briefing schedule:
1. The Plaintiffs' deadline to file their Motion for Class
Certification is continued from February 14, 2022 to a
date that is at least three months after the Court issues
its ruling on Defendant's partial Motion for Summary
Judgment;
2. The Defendant's Opposition will be due six weeks after
Plaintiffs' opening brief on the Motion for Class
Certification.
3. The Plaintiffs' Reply is due four weeks after the
Defendant's Opposition is filed.
4. The hearing on Plaintiffs' Motion for Class Certification
will be Noticed for two weeks after the last date to file
Plaintiffs' reply.
5. The Defendant will designate a PMQ for the topics listed
in the Notice of Person Most Qualified served on or about
December 24, 2021 and produce the witness on or before
March 31, 2022.
6. The Defendant will stipulate to the Belaire West Mailer
such that the mailing will occur by February 24, 2022 and
the opt out period expires 30 days thereafter. The Belaire
West Mailer shall be sent solely to the Membership Advisor
proposed class.
A copy of the Court's order dated Feb. 9, 2021 is available from
PacerMonitor.com at https://bit.ly/3JqbR4w at no extra charge.[CC]
FINANCIAL BUSINESS: Hatchett Suit Moved to Person Superior Court
----------------------------------------------------------------
Judge Catherine C. Eagles of the U.S. District Court for the Middle
District of North Carolina remanded the case, LAWRENCE HATCHETT, on
behalf of himself and others similarly situated, Plaintiff v.
FINANCIAL BUSINESS AND CONSUMER SOLUTIONS, INC., Defendant, Case
No. 1:21-CV-622 (M.D.N.C.), to the Superior Court of Person
County.
Introduction
Plaintiff Hatchett filed suit in state court alleging that the
Defendant communicated information about his alleged debt to a
third party. FBCS removed the case to the Court, asserting federal
question jurisdiction based on Mr. Hatchett's federal Fair Debt
Collection Practices Act claim. Because neither FBCS nor Mr.
Hatchett have identified allegations of concrete harm resulting
from FBCS's alleged federal statutory violations, Mr. Hatchett
lacks standing to remain in federal court. The Court declines to
exercise supplemental jurisdiction over the state law claims and
remands the case to state court.
Background
In June 2021, Mr. Hatchett brought the putative class action in
North Carolina state court, alleging FBCS violated the North
Carolina Debt Collection Act, N.C. Gen. Stat. Sections 75-50 et
seq., the North Carolina Unfair and Deceptive Trade Practices Act,
N.C. Gen. Stat. Section 75-1.1, and the federal Fair Debt
Collection Practices Act, 15 U.S.C. Section 1692 et seq. The
putative class consists of consumers in North Carolina whose debt
information FBCS sent to a third party without their consent.
FBCS removed the action based on federal question jurisdiction
arising out of the FDCPA claim. The Court sua sponte questioned
standing in light of TransUnion LLC v. Ramirez, 141 S.Ct. 2190
(2021) and ordered the parties to show cause why the case should
not be remanded to state court for lack of subject matter
jurisdiction.
The Court has the original and amended complaints before it. It
offered the parties an opportunity to present evidence in support
of subject matter jurisdiction, but neither party responded to that
invitation. Judge Eagles thus applies the usual test for analyzing
standing at the pleadings stage and will accept as true the factual
allegations in the complaints
According to the complaints, Mr. Hatchett owes money to an
unidentified creditor, and that debt was in default. The creditor
"transferred" the debt to FBCS, a debt collector. As part of
attempting to collect that debt, FBCS used a third-party vendor to
prepare and send letters to Mr. Hatchett from FBCS about his debt.
FBCS sent information about Mr. Hatchett's debt to the third-party
vendor, who "populated" some or all the debt information into a
"prepared template," printed the resulting letter, and mailed it to
Mr. Hatchett. In October 2020, Mr. Hatchett received and read one
such letter from FBCS about his debt. Mr. Hatchett did not consent
to FBCS sharing his debt information with the third-party vendor.
Discussion
In Spokeo, Inc. v. Robins, 578 U.S. 330, 338 (2016), standing to
sue is a doctrine rooted in the traditional understanding of a case
or controversy. For there to be a case or controversy under Article
III, Judge Eagles states that a plaintiff must have a personal
stake in the case -- in other words, standing.
To satisfy the standing requirement, a "plaintiff must have (1)
suffered an injury in fact, (2) that is fairly traceable to the
challenged conduct of the defendant, and (3) that is likely to be
redressed by a favorable judicial decision." The burden of
establishing standing in the case is on the Defendant, FBCS,
because it is FBCS that has invoked the jurisdiction of the Court.
FBCS must show that the complaint includes "clearly alleged facts
demonstrating each element" of standing.
Judge Eagles assumes without deciding that it was a violation of
the Fair Debt Collection Practices Act for FBCS to share Mr.
Hatchett's debt information with a third-party mailing vendor. But
a statutory violation alone is not sufficient to confer standing.
As the Supreme Court has made clear, a statutory violation does not
necessarily cause concrete harm. Nor is it enough that both parties
agree that Mr. Hatchett has standing.
Next, Judge Eagles finds that Mr. Hatchett and FBCS both assert
that Mr. Hatchett has alleged intangible but concrete harm similar
to that caused by the tort of disclosure of private information.
FBCS, the party that removed the case and thus the party with the
burden to show standing, specifically points to Mr. Hatchett's
allegation that it "conveyed information regarding his debt to a
third-party vendor," and notes that it demonstrates "actual
disclosure of private information." Those bare allegations,
however, do not show the kind of public disclosure or reputational
harm like that caused by tortious disclosure of private
information.
Mr. Hatchett also contends he has alleged intangible but concrete
harm closely related to the harm giving rise to tortious intrusion
upon seclusion. But he has not explained how his conclusory
allegations of unauthorized disclosure support his contentions. The
facts alleged do not show the kind of harm that gives rise to
intrusion upon seclusion liability, such as "physically invading a
person's home or other private place, eavesdropping by wiretapping
or microphones, peering through windows, persistent telephoning,
unauthorized prying into a bank account, and opening personal mail
of another."
Spokeo requires the complaint to include "clearly alleged facts
demonstrating each element" of standing. Neither FBCS nor Mr.
Hatchett have identified specific allegations of injury in fact
from the alleged disclosure at issue. The Court does not have
subject matter jurisdiction and remand is appropriate, Judge Eagles
concludes.
Conclusion
Judge Eagles remanded the case to the Superior Court of Person
County. No decision is made on the motion for judgment on the
pleadings, which can be heard in state court.
A full-text copy of the Court's Feb. 8, 2022 Memorandum Opinion &
Order is available at https://tinyurl.com/4fbj3yjd from
Leagle.com.
FIRST STUDENT: California Court Enters Final Judgment in Lopez Suit
-------------------------------------------------------------------
In the case, NORMA LOPEZ, CINDY MITCHELL, VADA NEICE, and MARY
DIAZ, on behalf of themselves and all others similarly situated,
Plaintiffs v. FIRST STUDENT, INC., FIRST STUDENT MANAGEMENT, LLC,
FIRSTGROUP AMERICA, INC., and DOES 1 through 10, inclusive,
Defendants, Case No. 5:19-cv-01669-JGB (SHKx) (C.D. Cal.), Judge
Jesus G. Bernal of the U.S. District Court for the Central District
of California entered Judgment on the terms set forth in the order
granting the Plaintiffs' unopposed motion for final approval of
class action settlement and motion for attorney's fee.
Judge Bernal granted the Plaintiffs' Approval Motion is granted. He
granted final approval to the parties' Settlement Agreement,
finding that the Settlement Agreement is fair, adequate, and
reasonable, appears to be the product of arm's-length and informed
negotiations, and treats all members of the class fairly. The
parties will perform their obligations pursuant to the terms of the
Settlement Agreement, the Order Granting the Motions.
The Plaintiffs' Fees Motion is granted.
Judge Bernal certified the following class under Federal Rule of
Civil Procedure 23(c) for settlement purposes: "All individuals
employed by First Student, Inc. or First Student Management, LLC in
the position of Attendant, Bus Aid or Bus Monitor in the state of
California as hourly non-exempt employees at any time during the
Class Period."
Plaintiffs Norma Lopez, Cindy Mitchell, Vada Neice, and Mary Diaz
will be paid a service award of $10,000 in accordance with the
terms of the Settlement Agreement, the Order Granting the Motions,
and the Judgment.
The Class Counsel will be paid $442,500 in attorneys' fees and
$41,130.79 in costs in accordance with the terms of the Settlement
Agreement.
The Settlement Administrator, Simpluris, will be paid for its
litigation costs of $9,999 in accordance with the terms of the
Settlement Agreement.
The California Labor and Workforce Development Agency will be paid
66,840 in accordance with the terms of the Settlement Agreement.
All Class Members who did not validly and timely request exclusion
from the Settlement have released their claims, as set forth in the
Settlement Agreement, against any of the released parties. Except
as to any Class Members who have validly and timely requested
exclusion, the action is dismissed with prejudice, with all parties
to bear their own fees and costs except as set forth in the
Judgment and in the prior orders of the Court.
Without affecting the finality of the Order Granting the Motions,
the Court retains jurisdiction over the parties, including Class
Members, for the purposes of construing, enforcing, and
administering the Order and Judgment, as well as the Settlement
Agreement itself.
The Clerk is directed to enter the Judgment pursuant to Federal
Rule of Civil Procedure 58.
A full-text copy of the Court's Feb. 8, 2022 Judgment is available
at https://tinyurl.com/n9x3jusf from Leagle.com.
GENERAL MOTORS: Romoff Appeals Vehicle Delivery Fee Case Dismissal
-------------------------------------------------------------------
Plaintiffs Robert Romoff, et al., filed an appeal from a court
ruling entered in the lawsuit entitled Robert Romoff and Joe
Siciliano, on behalf of themselves and all other similarly situated
v. GENERAL MOTORS LLC, Case No. 3:21-cv-00938-WQH-BGS, in the U.S.
District Court for the Southern District of California, San Diego.
As reported in the Class Action Reporter on May 24, 2021, the
lawsuit is brought concerning GM's deceptive and unfair practice of
misleading consumers into overpaying for its vehicles by inflating
the amount customers must pay for the delivery of their vehicles
(i.e., the "destination fee") when purchasing or leasing a new
vehicle at one of GM's authorized dealerships.
According to the complaint, a vehicle's destination fee is
generally understood in the automotive industry to reflect the
manufacturer's average cost of delivering one of its vehicles to a
dealership. That destination fee is charged to the dealer and
passed on to the purchaser or lessee of that vehicle. Consumers
similarly have the expectation that they are covering an automotive
manufacturer's cost for the delivery of the manufacturer's vehicles
when paying the "destination fee" as part of their new vehicle
lease or purchase. The same is true for the destination fee at
issue, which GM refers to as the vehicle's "Destination Charge." GM
has added the Destination Charge to the price of each new
Chevrolet-, Cadillac-, Buick-, and GMC-branded vehicle that has
been offered for sale in the United States (the "Class Vehicles").
Unfortunately for consumers, the amount of GM's Destination Charge
increased sharply over the years and currently reaches as high as a
whopping $1,695.00 for many of the Class Vehicles.
Despite the general understanding of the automotive industry and
the reasonable expectations of consumers, however, GM includes a
significant amount of profit in its Destination Charge and, in
doing so, deceives customers into paying far more than the actual
cost of vehicle delivery when purchasing or leasing one of the
Class Vehicles, says the complaint. In fact, GM's Destination
Charge has little correlation to the cost of delivering the Class
Vehicles to their intended destination (i.e., GM's dealerships) at
all, and instead, has become a huge profit center for Defendant.
Indeed, the Destination Charge allows GM to extract hidden markups
on the sale of the Class Vehicles from unsuspecting consumers, it
adds.
As a direct and proximate result of GM's concealment of, and
failure to disclose, the profit that is included in the Destination
Charge, Plaintiffs overpaid for their Class Vehicles. Plaintiffs
have purchased and leased Class Vehicles that they would not
otherwise have purchased or leased, or would have paid less for,
had they known that GM's Destination Charge was not a legitimate
charge related to the cost of delivery the Class Vehicles to its
dealers at the point of sale. Plaintiffs have consequently suffered
ascertainable losses and actual damages as a result of GM's
unlawful conduct, says the complaint.
The Plaintiff now seeks a review of the Court's Orders dated
December 2, 2021 and January 18, 2022, granting Defendant's Motion
to Dismiss Plaintiffs' Class Action Complaint. The Court dismissed
the Complaint without prejudice.
The appellate case is captioned as Robert Romoff, et al v. General
Motors LLC, Case No. 22-55170, in the United States Court of
Appeals for the Ninth Circuit, filed on Feb. 14, 2022.
The briefing schedule in the Appellate Case states that:
-- Appellants Robert Romoff and Joe Siciliano Mediation
Questionnaire is due on Feb. 22, 2022;
-- Appellants Robert Romoff and Joe Siciliano opening brief is
due on April 15, 2022;
-- Appellee General Motors LLC answering brief is due on May 16,
2022; and
-- Appellants' optional reply brief is due 21 days after service
of the answering brief.[BN]
Plaintiffs-Appellants ROBERT ROMOFF and JOE SICILIANO, individually
and on behalf of all others similarly situated, are represented
by:
Jason Henry Alperstein, Esq.
Jonathan M. Streisfeld, Esq.
KOPELOWITZ OSTROW FERGUSON WEISELBERG GILBERT
One West Las Olas Boulevard, Suite 500
Fort Lauderdale, FL 33301
Telephone: (954) 525-4100
- and -
Sophia Goren Gold, Esq.
KALIELGOLD, PLLC
950 Gilman Street, Suite 200
Berkeley, CA 94710
Telephone: (202) 350-4783
E-mail: sgold@kalielgold.com
- and -
Jeffrey D. Kaliel, Esq.
KALIELGOLD, PLLC
1100 15th Street NW, 4th Floor
Washington, DC 20005
Telephone: (202) 615-3948
E-mail: jkaliel@kalielpllc.com
Defendant-Appellee GENERAL MOTORS LLC is represented by:
Derek Scott Whitefield, Esq.
DYKEMA GOSSETT LLP
333 South Grand Avenue, Suite 2100
Los Angeles, CA 90071
Telephone: (213) 457-1800
E-mail: dwhitefield@dykema.com
GEORGIA PACIFIC: Order on Class Cert, Discovery Amended in Diaz
---------------------------------------------------------------
In the class action lawsuit captioned as DAVID DIAZ, on behalf of
the State of California and Aggrieved Employees, v.GEORGIA PACIFIC
CORRUGATED LLC, Case No. 2:21-cv-02151-DMG-AFM (C.D. Cal.), the
Hon. Judge Dolly M. Gee entered an order granting the Parties'
joint request to amend the currently ordered class certification
and discovery, pre-trial and trial schedule as follows:
1. Class Certification Dates New Deadlines
-- Deadline to File a Motion Oct. 10, 2022
for Class Certification:
-- Deadline to file an Oct. 31, 2022
Opposition to the Motion
for Class Certification:
-- Deadline to File a Reply: Nov. 21, 2022
-- Hearing Date on Motion for Dec. 9, 2022
Class Certification:
2. Discovery Dates Court Order
-- Non-Expert Discovery Cut-Off: Dec. 14, 2022
-- Expert Disclosure (Initial): Nov. 15, 2022
-- Expert Disclosure (Rebuttal): Dec. 14, 2022
-- Expert Discovery Cut-Off: Jan. 16, 2023
3. Other Pre-Trial Dates
-- Motion Cut-Off: Feb. 10, 2023,
-- Last Hearing Date for March 17, 2023
Dispositive Motions:
-- Settlement Conference: April 6, 2023
Completion Date:
-- Joint Status Report re April 13, 2023
Settlement:
-- Motions in Limine Filing: May 2, 2023
-- Deadline Opposition to Motion May 9, 2023
in Limine Filing Deadline:
4. Trial-Related Dates
-- Final Pretrial Conference: May 23, 2023
-- Trial: June 20, 202
Georgia Pacific manufactures corrugated packaging.
A copy of the Court's order dated Feb. 8, 2021 is available from
PacerMonitor.com at https://bit.ly/3gG97ni at no extra charge.[CC]
GEORGIA: Coob Seeks to Certify Class of Deaf Individuals
--------------------------------------------------------
In the class action lawsuit captioned as BRANDON COBB, MARY HILL,
and JOSEPH NETTLES, on behalf of themselves and all others
similarly situated, v. GEORGIA DEPARTMENT OF COMMUNITY SUPERVISION,
and MICHAEL NAIL, in his official capacity as Commissioner of the
Georgia Department of Community Supervision, Case No.
1:19-cv-03285-WMR (N.D. Ga.), the Plaintiffs ask the Court to enter
an order:
1. certifying a class of plaintiffs that includes:
"all present and future deaf and hard of hearing
individuals subject to supervision by the Georgia
Department of Community Supervision and its Commissioner,
Michael Nail, pursuant to Rule 23(a) and (b)(2) of the
Federal Rules of Civil Procedure;" and
2. appointing Plaintiffs' counsel as class counsel pursuant
to Rule 23(g).
This case was initially filed on July 19, 2019. The Plaintiffs
originally moved for class certification in this case on October 9,
2019. The Defendants filed their opposition to the motion on
November 13, 2019, and Plaintiffs filed a reply brief on December
20, 2019.
After a hearing on the motion which began on March 9, 2020, the
court issued an order on March 11, 2020 that delayed ruling on the
motion for class certification and ordered the parties to
engage in discovery related to the potential class.
The Plaintiffs are three deaf individuals subject to ongoing
supervision by DCS. DCS has routinely and repeatedly failed to
provide Plaintiffs with auxiliary aids and services and reasonable
modifications to which they are entitled under Title II of the
Americans with Disabilities Act (the "ADA") and Section 504 of the
Rehabilitation Act of 1973.
The Plaintiffs, on behalf of themselves and proposed class members,
are seeking declaratory and injunctive relief requiring DCS to
comply with federal law and provide Plaintiffs and proposed class
members with the auxiliary aids and services and reasonable
modifications they require to communicate effectively and to
participate fully in DCS programs, services, and activities.
A copy of the Plaintiffs' motion to certify class dated Feb. 9,
2021 is available from PacerMonitor.com at https://bit.ly/3Bo3yDm
at no extra charge.[CC]
The Plaintiffs are represented by:
Susan Mizner, Esq.
Zoe Brennan-Krohn, Esq.
Brian L. Dimmick, Esq.
West Resendes, Esq.
Talila A. Lewis, Esq.
AMERICAN CIVIL LIBERTIES UNION
DISABILITY RIGHTS PROGRAM
39 Drumm Street
San Francisco, CA 94111
Telephone: (415) 343-0781
Facsimile: (415) 395-0950
E-mail: SMizner@aclu.org
ZBrennan-Krohn@aclu.org
BDimmick@aclu.org
WResendes@aclu.org
Talila.A.Lewis@gmail.com
- and -
Sean Young, Esq.
AMERICAN CIVIL LIBERTIES U NION
FOUNDATION OF GEORGIA, INC.
Atlanta, GA 30357
Telephone: (678) 981-5295
Facsimile: (770) 303-0060
E-mail: SYoung@acluga.org
- and -
Claudia Center, Esq.
DISABILITY RIGHTS EDUCATION AND
DEFENSE FUND
3075 Adeline St, Suite 210
Berkeley, CA 94703
Telephone: (510) 644-2555
E-mail: CCenter@dredf.org
- and -
Stephanna F. Szotkowski, Esq.
Kathryn Geoffroy, Esq.
Ian Hoffman, Esq.
Brittany Shrader, Esq.
Tyler J. Fink, Esq.
ARNOLD & PORTER KAYE SCHOLER LLP
70 West Madison Street, Suite 4200
Chicago, IL 60602
Telephone: (312) 583-2354
Facsimile: (312) 583-2591
E-mail: Stephanna.Szotkowski@arnoldporter.com
Kathryn.Geoffroy@arnoldporter.com
Ian.Hoffman@arnoldporter.com
Tyler.Fink@arnoldporter.com
brittany.shrader@nad.org
H&R BLOCK INC: Court Dismisses Snarr Class Suit
-----------------------------------------------
H&R Block, Inc. disclosed in its Form 10-Q Report for the quarterly
period ended December 31, 2021, filed with the Securities and
Exchange Commission on February 4, 2022, that the appeal filed by
the plaintiff was dismissed after the court granted motion to
dismiss by the company.
On May 17, 2019, a putative class action complaint was filed
against H&R Block, Inc., HRB Tax Group, Inc. and HRB Digital LLC in
the Superior Court of the State of California, County of San
Francisco (Case No. CGC-19576093). The case was removed to the
United States District Court for the Northern District of
California on June 21, 2019 (Case No. 3:19-cv-03610-SK) and is
styled "Snarr v. HRB Tax Group, Inc., et al."
The plaintiff filed a first amended complaint on August 9, 2019,
dropping H&R Block, Inc. from the case. In the amended complaint,
the plaintiff sought to represent classes of all persons, between
May 17, 2015 and the present, who paid to file one or more federal
tax returns through H&R Block's internet-based filing system, were
eligible to file those tax returns for free through the H&R Block
Free File offer of the IRS Free File Program, and resided in and
were citizens of California at the time of the payments.
The plaintiff generally alleges unlawful, unfair, fraudulent and
deceptive business practices and acts in connection with the IRS
Free File Program in violation of the California Consumers Legal
Remedies Act, California Civil Code, California False Advertising
Law, California Business and Professions Code and California Unfair
Competition Law.
The plaintiff seeks declaratory and injunctive relief, restitution,
compensatory damages, punitive damages, interest, attorneys' fees
and costs. The company filed a motion to stay the proceedings based
on the primary jurisdiction doctrine and a motion to compel
arbitration, both of which were denied. Said appeal of the court's
arbitration order was denied and the company filed a petition for
review with the United States Supreme Court. After filing an answer
to the amended complaint, the company filed a renewed motion to
compel arbitration, which the court denied on May 13, 2021 where
the company filed an appeal. The company filed a motion to dismiss
the plaintiff's claim for public injunctive relief. The court
granted the motion and dismissed the case in its entirety on August
24, 2021. The plaintiff filed an appeal, which was later dismissed
by the parties, along with the other appeals.
H&R Block, Inc. offers tax filing solutions and is based in Kansas
City.
H&R BLOCK: Swanson Suit Stayed Pending Arbitration
--------------------------------------------------
H&R Block, Inc. disclosed in its Form 10-Q Report for the quarterly
period ended December 31, 2021, filed with the Securities and
Exchange Commission on February 4, 2022, that the court granted the
company's motion to compel arbitration and stayed the case
captioned "Swanson v. H&R Block, Inc., et al." pending the outcome
of individual arbitration.
On September 26, 2019, a putative class action complaint was filed
against H&R Block, Inc., HRB Tax Group, Inc., HRB Digital LLC and
Free File, Inc. in the United States District Court for the Western
District of Missouri (Case No. 4:19-cv-00788-GAF) styled "Swanson
v. H&R Block, Inc., et al." The plaintiff seeks to represent both a
nationwide class and a California subclass of all persons eligible
for the IRS Free File Program who paid to use an H&R Block product
to file an online tax return for the 2002 through 2018 tax filing
years.
The plaintiff generally alleges unlawful, unfair, fraudulent and
deceptive business practices and acts in connection with the IRS
Free File Program in violation of the California Consumers Legal
Remedies Act, California Civil Code, California False Advertising
Law, California Business and Professions Code, California Unfair
Competition Law, California Business and Professions Code in
addition to breach of contract and fraud.
The plaintiff seeks injunctive relief, disgorgement, compensatory
damages, statutory damages, punitive damages, interest, attorneys'
fees and costs. The court granted a motion to dismiss filed by
defendant Free File, Inc. for lack of personal jurisdiction.
H&R Block, Inc. offers tax filing solutions and is based in Kansas
City.
HAIN CELESTIAL: 2nd Circuit Vacates Dismissal Ruling on Lynn Suit
-----------------------------------------------------------------
The Hain Celestial Group, Inc. disclosed in its Form 10-Q Report
for the quarterly period ended December 31, 2021, filed with the
Securities and Exchange Commission on February 3, 2022, that on
December 17, 2021, the Second Circuit vacated the dismissal
decision of the US District Court of Eastern District of New York
and remanded the case captioned Lynn v. The Hain Celestial Group,
Inc., et al. for further proceedings.
On August 17, 2016, a securities class action complaint was filed
in the Eastern District of New York against the company alleging
violations of Sections 10(b) and 20(a) of the Securities Exchange
Act of 1934, docketed "Lynn v. The Hain Celestial Group, Inc., et
al."
On June 5, 2017, the District Court issued an order for
consolidation, appointment of Co-Lead Plaintiffs and approval of
selection of co-lead counsel. Pursuant to this order, the
Securities Complaints were consolidated under the caption "In re
The Hain Celestial Group, Inc. Securities Litigation," and Rosewood
Funeral Home and Salamon Gimpel were appointed as Co-Lead
Plaintiffs. The Co-Lead Plaintiffs in the Consolidated Securities
Action filed a Consolidated Amended Complaint on August 4, 2017 and
a Corrected Consolidated Amended Complaint on September 7, 2017 on
behalf of a purported class consisting of all persons who purchased
or otherwise acquired Hain Celestial securities between November 5,
2013 and February 10, 2017.
The amended complaint named as defendants the company and certain
of its former officers and asserted violations of Sections 10(b)
and 20(a) of the Securities Exchange Act of 1934 based on allegedly
materially false or misleading statements and omissions in public
statements, press releases and SEC filings regarding the company's
business, prospects, financial results and internal controls.
Defendants filed a motion to dismiss the Amended Complaint on
October 3, 2017 which the District Court granted on March 29, 2019,
dismissing the case in its entirety, without prejudice to re-plead.
Co-Lead Plaintiffs filed a Second Amended Consolidated Class Action
Complaint on May 6, 2019. The Second Amended Complaint again named
as defendants the company and certain of its former officers and
asserts violations of Sections 10(b) and 20(a) of the Securities
Exchange Act of 1934 based on allegations similar to those in the
Amended Complaint, including materially false or misleading
statements and omissions in public statements, press releases and
SEC filings regarding the company's business, prospects, financial
results and internal controls.
Defendants filed a motion to dismiss the Second Amended Complaint
on June 20, 2019. On April 6, 2020, the District Court granted
Defendants' motion to dismiss the Second Amended Complaint in its
entirety, with prejudice. Co-Lead Plaintiffs appealed the District
Court's decision dismissing the Second Amended Complaint to the
United States Court of Appeals for the Second Circuit. By decision
dated December 17, 2021, the Second Circuit vacated the District
Court's judgment and remanded the case for further proceedings.
The Hain Celestial Group, Inc. is a marketer, manufacturer and
seller of organic and natural products.
HAIN CELESTIAL: Bid to Junk Class Suits Pending
-----------------------------------------------
The Hain Celestial Group, Inc. disclosed in its Form 10-Q Report
for the quarterly period ended December 31, 2021, filed with the
Securities and Exchange Commission on February 3, 2022, that a
motion to dismiss class action lawsuits is still pending in the
courts.
Since February 2021, a large number of consumer class actions have
been brought against the company alleging that the company's
Earth's Best baby food products contain unsafe and undisclosed
levels of various naturally occurring heavy metals, namely lead,
arsenic, cadmium and mercury. There are currently 29 active
lawsuits, which generally allege that the company violated various
state consumer protection laws and make other state and common law
warranty and unjust enrichment claims related to the alleged
failure to disclose the presence of these metals and that consumers
would have allegedly either not purchased the Products or would
have paid less for them had the company made adequate disclosures.
These putative class actions seek to certify a nationwide class of
consumers as well as various state subclasses. One of the consumer
class actions (Kathryn Gavula, et al. v. Beech-Nut Nutrition Co.,
et al.) filed in the U.S. District Court for the District of Oregon
alleges that the company violated the Racketeer Influenced and
Corrupt Organizations Act (RICO) by conspiring with other baby food
manufacturers to conceal the presence of these heavy metals in
their respective products. These actions have been filed against
all of the major baby food manufacturers in federal courts across
the country. The U.S. Judicial Panel on Multidistrict Litigation
declined a request to centralize all of the consumer class action
lawsuits against all of the baby food manufacturers into a single
multidistrict proceeding, and all but one of these cases against
the company have now been transferred and consolidated in the U.S.
District Court for the Eastern District of New York into a
proceeding captioned "In re Hain Celestial Heavy Metals Baby Food
Litigation," Case No. 2:21-cv-678. The Eastern District of New York
has appointed interim class counsel for the plaintiffs in the
Consolidated Proceeding, and the plaintiffs' consolidated complaint
is due in February 2022. One consumer class action is pending in
New York Supreme Court, Nassau County. The company has moved to
stay or transfer this case to the Consolidated Proceeding and that
motion is pending. The company denies the allegations in these
lawsuits and contends that its baby foods are safe and properly
labeled.
The claims raised in these lawsuits were brought in the wake of a
highly publicized report issued by the U.S. House of
Representatives Subcommittee on Economic and Consumer Policy on
Oversight and Reform, dated February 4, 2021, addressing the
presence of heavy metals in baby foods made by certain
manufacturers, including the company. Since its publishing, the
company has also received information requests with respect to the
advertising and quality of its baby foods from certain governmental
authorities, as such authorities investigate the claims made in the
House Report.
The company has been named in one civil government enforcement
action, State of New Mexico ex rel. Balderas v. Nurture, Inc., et
al., which was filed by the New Mexico Attorney General against the
company and several other manufacturers based on the alleged
presence of heavy metals in their baby food products. The company
and several other manufacturers have moved to dismiss the New
Mexico Attorney General's lawsuit, and that motion to dismiss is
currently pending.
The Hain Celestial Group, Inc. is a marketer, manufacturer and
seller of organic and natural products.
HAIN CELESTIAL: Ct. Extends Stay on Bid to Dismiss Securities Suit
------------------------------------------------------------------
The Hain Celestial Group, Inc. disclosed in its Form 10-Q Report
for the quarterly period ended December 31, 2021, filed with the
Securities and Exchange Commission on February 3, 2022, that the
temporary stay pending the District Court's reconsideration of the
Defendants' motion to dismiss the second amended complaint in the
consolidated securities action has been extended to December 30,
2022.
On April 19, 2017 and April 26, 2017, two class actions and
stockholder derivative complaints were filed in the Eastern
District of New York against the former Board of Directors and
certain former officers of the company under the captions "Silva v.
Simon, et al." (the Silva Complaint" and "Barnes v. Simon, et al.,"
respectively. Both the Silva Complaint and the Barnes Complaint
allege violations of securities law, breach of fiduciary duty,
waste of corporate assets and unjust enrichment.
On May 23, 2017, an additional stockholder filed a complaint under
seal in the Eastern District of New York against the former Board
of Directors and certain former officers of the company. The
complaint alleged that the company's former directors and certain
former officers made materially false and misleading statements in
press releases and SEC filings regarding the company's business,
prospects and financial results. The complaint also alleged that
the company violated its by-laws and Delaware law by failing to
hold its 2016 Annual Stockholders Meeting and includes claims for
breach of fiduciary duty, unjust enrichment and corporate waste. On
August 9, 2017, the District Court granted an order to unseal this
case and reveal Gary Merenstein as the plaintiff.
On August 10, 2017, the District Court granted the parties'
stipulation to consolidate the Barnes Complaint, the Silva
Complaint and the Merenstein Complaint under the caption "In re The
Hain Celestial Group, Inc. Stockholder Class and Derivative
Litigation (the Consolidated Stockholder Class and Derivative
Action)" and to appoint Robbins Arroyo LLP and Scott-Scott as
Co-Lead Counsel, with the Law Offices of Thomas G. Amon as Liaison
Counsel for Plaintiffs.
On September 14, 2017, a related complaint was filed under the
caption Oliver v. Berke, et al., and on October 6, 2017, the Oliver
Complaint was consolidated with the Consolidated Stockholder Class
and Derivative Action. The Plaintiffs filed their consolidated
amended complaint under seal on October 26, 2017. On December 20,
2017, the parties agreed to stay Defendants' time to answer, move,
or otherwise respond to the consolidated amended complaint through
and including 30 days after a decision was rendered on the motion
to dismiss the amended complaint in the consolidated securities
action, described above.
On March 29, 2019, the District Court in the Consolidated
Securities Action granted Defendants' motion, dismissing the
Amended Complaint in its entirety, without prejudice to re-plead.
Co-Lead Plaintiffs in the consolidated securities action filed the
second amended complaint on May 6, 2019. The parties to the
Consolidated Stockholder Class and Derivative Action agreed to
continue the stay of Defendants' time to answer, move, or otherwise
respond to the consolidated amended complaint through 30 days after
a decision on Defendants' motion to dismiss the second amended
complaint in the consolidated securities action.
On April 6, 2020, the District Court granted Defendants' motion to
dismiss the Second Amended Complaint in the Consolidated Securities
Action, with prejudice. Pursuant to the terms of the stay,
Defendants in the Consolidated Stockholder Class and Derivative
Action had until May 6, 2020 to answer, move, or otherwise respond
to the complaint in this matter. This deadline was extended, and
Defendants moved to dismiss the consolidated stockholder class and
derivative action complaint on June 23, 2020, with Plaintiffs'
opposition due August 7, 2020.
On July 24, 2020, Plaintiffs made a stockholder litigation demand
on the current Board containing overlapping factual allegations to
those set forth in the consolidated stockholder class and
derivative action. On August 10, 2020, the District Court vacated
the briefing schedule on Defendants' pending motion to dismiss in
order to give the Board of Directors time to consider the demand.
On each of September 8 and October 8, 2020, the District Court
extended its stay of any applicable deadlines for 30 days to give
the Board of Directors additional time to complete its evaluation
of the demand. On November 3, 2020, Plaintiffs were informed that
the Board of Directors had finished investigating and resolved,
among other things, that the demand should be rejected. On November
6, 2020, Plaintiffs and Defendants notified the District Court that
Plaintiffs were evaluating the rejection of the demand, sought
certain additional information and were assessing next steps, and
requested that the District Court extend the stay for an additional
30 days, to on or around December 7, 2020.
The Parties then filed a number of additional joint status reports,
requesting that the District Court continue the stay of applicable
deadlines through December 30, 2021. In light of the Second Circuit
vacating the District Court's judgment in the consolidated
securities action referenced above and remanding the case for
further proceedings, the Parties submitted a joint status report on
December 29, 2021 requesting that the District Court continue the
temporary stay pending the District Court's reconsideration of the
Defendants' motion to dismiss the Second Amended Complaint in the
consolidated securities action. The District Court has extended the
temporary stay through December 30, 2022.
The Hain Celestial Group, Inc. is a marketer, manufacturer and
seller of organic and natural products.
HAIN CELESTIAL: Spadola Voluntarily Dismisses Claims
----------------------------------------------------
The Hain Celestial Group, Inc. disclosed in its Form 10-Q Report
for the quarterly period ended December 31, 2021, filed with the
Securities and Exchange Commission on February 3, 2022, that in the
class action captioned "Spadola v. The Hain Celestial Group, Inc.,
et al.," plaintiff Spadola voluntarily dismissed his claims without
prejudice to his ability to participate in the Consolidated
Securities Action as an absent class member following the order of
the District Court for consolidation, appointment of Co-Lead
Plaintiffs and approval of selection of co-lead counsel where,
pursuant to the order, the Securities Complaints were consolidated
on June 5, 2017 under the caption "In re The Hain Celestial Group,
Inc. Securities Litigation," and Rosewood Funeral Home and Salamon
Gimpel were appointed as Co-Lead Plaintiffs. On December 17, 2021,
the Second Circuit vacated the dismissal decision of the US
District Court of Eastern District of New York and remanded the
case for further proceedings.
On August 17, 2016, the Spadola securities class action complaint
was filed in the Eastern District of New York against the company
alleging violations of Sections 10(b) and 20(a) of the Securities
Exchange Act of 1934.
The Co-Lead Plaintiffs in the Consolidated Securities Action filed
a Consolidated Amended Complaint on August 4, 2017 and a Corrected
Consolidated Amended Complaint on September 7, 2017 on behalf of a
purported class consisting of all persons who purchased or
otherwise acquired Hain Celestial securities between November 5,
2013 and February 10, 2017.
The amended complaint named as defendants the company and certain
of its former officers and asserted violations of Sections 10(b)
and 20(a) of the Securities Exchange Act of 1934 based on allegedly
materially false or misleading statements and omissions in public
statements, press releases and SEC filings regarding the company's
business, prospects, financial results and internal controls.
Defendants filed a motion to dismiss the Amended Complaint on
October 3, 2017 which the District Court granted on March 29, 2019,
dismissing the case in its entirety, without prejudice to re-plead.
Co-Lead Plaintiffs filed a Second Amended Consolidated Class Action
Complaint on May 6, 2019. The Second Amended Complaint again named
as defendants the company and certain of its former officers and
asserts violations of Sections 10(b) and 20(a) of the Securities
Exchange Act of 1934 based on allegations similar to those in the
Amended Complaint, including materially false or misleading
statements and omissions in public statements, press releases and
SEC filings regarding the company's business, prospects, financial
results and internal controls.
Defendants filed a motion to dismiss the Second Amended Complaint
on June 20, 2019. On April 6, 2020, the District Court granted
Defendants' motion to dismiss the Second Amended Complaint in its
entirety, with prejudice. Co-Lead Plaintiffs appealed the District
Court's decision dismissing the Second Amended Complaint to the
United States Court of Appeals for the Second Circuit. By decision
dated December 17, 2021, the Second Circuit vacated the District
Court's judgment and remanded the case for further proceedings.
The Hain Celestial Group, Inc. is a marketer, manufacturer and
seller of organic and natural products.
HAWAIIAN AIRLINES: O'Hailpin Appeals Denial of TRO Bid in ADA Case
------------------------------------------------------------------
Plaintiffs Riki O'Hailpin, et al., filed an appeal from a court
ruling entered in the lawsuit entitled 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, in the U.S. District Court for the District of Hawaii,
Honolulu.
The putative class action concerns Defendant Hawaiian Air'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 Air'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 Air 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 Air published its vaccine policy on Sept. 17,
2021.
Hawaiian Air 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.
As of Jan. 1, 2022, 95% of Hawaiian Air'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
Temporary Restraining Order. Hawaiian Air filed an Opposition on
Jan. 21, 2022 and the Plaintiffs filed a Reply on Jan. 25, 2022.
On Jan. 28, 2022, Hawaiian Air filed its Application to Strike the
Declaration of Frederick Reed Bates, II. The Plaintiffs filed an
Opposition on Jan. 31, 2022.
As reported in the Class Action Reporter on Feb. 15, 2022, 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 Air'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.
The Plaintiffs now seek a review of this ruling.
The appellate case is captioned as Riki O'Hailpin, et al. v.
Hawaiian Airlines, Inc., et al., Case No. 22-15215, in the United
States Court of Appeals for the Ninth Circuit, filed on Feb. 14,
2022.
The briefing schedule in the Appellate Case states that:
-- Opening brief and excerpts of record are due no later than
March 11, 2022;
-- Answering brief is due on April 8, 2022 or 28 days after
service of the opening brief, whichever is earlier; and
-- Optional reply brief is due within 21 days after service of
the answering brief.[BN]
Plaintiffs-Appellants 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, are represented by:
James Hochberg, Jr., Esq.
JAMES HOCHBERG, A.A.L.
Bishop Street Tower
700 Bishop Street
Honolulu, HI 96813-3812
Telephone: (808) 256-7382
- and -
John Clay Sullivan, Esq.
SL LAW, PLLC
610 Uptown Boulevard, Suite 2000
Cedar Hill, TX 75104
Telephone: (469) 523-1351
Defendants-Appellees HAWAIIAN AIRLINES, INC. and HAWAIIAN HOLDINGS,
INC. are represented by:
Paul D. Alston, Esq.
Nickolas Alexander Kacprowski, Esq.
Corianne W. Lau, Esq.
DENTONS US, LLP
1001 Bishop Street, Suite 1800
Honolulu, HI 96813
Telephone: (808) 524-1800
- and -
John S. Rhee, Esq.
ALSTON HUNT FLOYD & ING
1001 Bishop Street, Suite 1800
Honolulu, HI 96813
Telephone: (808) 524-1800
IMMUNOVANT INC: Filing of Amended Complaint Due March 15
--------------------------------------------------------
Immunovant, Inc. disclosed in its Quarterly Report on Form 10-Q for
the quarterly period ended December 31, 2021, filed with the
Securities and Exchange Commission on February 4, 2022, that the
plaintiff in a securities action has until March 15, 2022 to file
the operative amended complaint.
In February 2021, a putative securities class action complaint was
filed against the company and certain of its current and former
officers in the U.S. District Court for the Eastern District of New
York on behalf of a class consisting of those who acquired the
company's securities from October 2, 2019 and February 1, 2021. The
complaint alleges that the company and certain of its officers
violated Sections 10(b) and 20(a) of the Securities Exchange Act of
1934, as amended, by making false and misleading statements
regarding the safety of "batoclimab" (treatment for Myasthenia
Gravis) and seeks unspecified monetary damages on behalf of the
putative class and an award of costs and expenses, including
reasonable attorneys' fees. On December 29, 2021, the U.S. District
Court appointed a lead plaintiff. On February 1, 2022, the lead
plaintiff filed an amended complaint adding the company's directors
and underwriters as defendants, and asserting additional claims
under Section 11, 12(a)(2), and 15 of the Securities Act of 1933.
Pending court approval of the parties' stipulation, defendants are
not required to respond to this amended complaint. The deadline for
lead plaintiff to file the operative amended complaint is March 15,
2022. The company expects defendants, including the company, to
file a motion to dismiss that amended complaint.
Immunovant is a New York based biopharmaceutical company.
J.J. MARSHALL: Gartrell's 3rd Bid for Class Certification Denied
----------------------------------------------------------------
In the case, JACARA MONIQUE GARTRELL, on behalf of Herself and all
others similarly situated, Plaintiff v. J.J. MARSHALL & ASSOCIATES,
INC., Defendant, Case No. 3:19-cv-442-TJC-JBT (M.D. Fla.), Judge
Timothy J. Corrigan of the U.S. District Court for the Middle
District of Florida, Jacksonville Division, denied Gartrell's Third
Motion for Class Certification.
Background
The case, alleging that a debt collector violated both state and
federal debt collection laws, has been ongoing since 2019. Gartrell
alleges that Marshall violated the Fair Debt Collection Practices
Act ("FDCPA") and the Florida Consumer Collection Practice Act
("FCCPA") by sending her a collection letter without registering as
a debt collector in Florida as required under state law.
A hearing on Gartrell's motion for class certification was
scheduled for July 2020. Before the hearing took place, the
Eleventh Circuit decided Trichell v. Midland Credit Mgmt., Inc.,
964 F.3d 990 (11th Cir. 2020). Trichell held that plaintiffs
bringing a claim against a debt collector in federal court under
the FDCPA cannot merely allege statutory violations; they must
allege that they suffered an injury-in-fact in order to have
Article III standing. 964 F.3d at 1000. The full requirements of
standing in debt collection cases are still being determined.
However, in the present case, the effects of Trichell are clear:
Gartrell must allege not only that she received a dunning letter
from out-of-state debt collector Marshall, but that it caused her
an injury-in-fact. Otherwise, she does not have standing to bring a
claim on her own behalf or that of a class.
Following briefing from the parties on Gartrell's standing, the
Court granted Gartrell leave to amend her complaint. Gartrell's
Amended Complaint reiterated allegations that Gartrell received a
dunning letter from Marshall demanding $612.92. In the Amended
Complaint, she alleges that "she found [the] letter intimidating,"
it "made her upset and stressed," and that she "wasted time"
reading the letter and discussing it with her attorney. Gartrell
did not pay the debt, though she alleges that "had she not
consulted with her lawyer, she would have utilized one of the
payment options in the letter despite J.J. Marshall being
unregistered to collect debt in Florida."
The Amended Complaint is a putative class action that brings claims
on behalf of "all persons in the State of Florida who received at
least one collection letter from J.J Marshall in substantially the
same form" as the one Gartrell received. Marshall filed an Answer
to the Amended Complaint.
Ms. Gartrell then filed a Renewed Motion for Class Certification,
to which Marshall filed a response. The Court held a hearing on the
Renewed Motion in July 2021. At the hearing, Gartrell's counsel
made an ore tenus motion to modify the class to account for class
standing challenges, proposing a class composed of individuals who
paid money in response to Marshall's letter and therefore had
standing. The Court terminated the previous Motion for Class
Certification to permit Gartrell to amend the class.
Ms. Gartrell has now filed a Third Motion for Class Certification.
The Motion proposes the following class: All persons in the state
of Florida who received at least one collection letter from JJ
Marshall and who thereafter made a payment to JJ Marshall on the
debt referenced in the collection letter.
The class is limited by the applicable statute of limitations, and
thus brings claims from April 17, 2018 to the present under the
FDCPA, and April 17, 2017 to the present under the FCCPA. Gartrell
states discovery has shown that there are 256 individuals who "sent
payment to JJ Marshall" and are therefore class members.
Ms. Gartrell argues that her class should be certified pursuant to
Federal Rule of Civil Procedure 23(b)(3) because common questions
of law or fact predominate over individual issues, and class
adjudication would be superior to individual determinations. The
Motion also argues that Gartrell has standing under Trichell
because of her alleged injuries upon receipt of the letter, which
include loss of time and anxiety.
Marshall's response argues that the class cannot be certified
because what Gartrell is "actually proposing is both a statutory
damages class composed of all persons that received a collection
letter from J.J. Marshall and made no payment and an 'actual
damages sub-class' composed solely of persons who made a payment in
response to receiving the letter." She is not a member of this
"actual damages sub-class," and therefore cannot represent it.
Ms. Gartrell's reply argues that following Transunion v. Ramirez,
141 S.Ct. 2190 (2021), a class must include those who have claims
against the defendant and who have Article III standing. Gartrell
argues her putative class meets these criteria, because "she
received the unlawful collection letter and she has Article III
standing," and that she and the rest of the class derive standing
from different injuries "is a distinction without a difference."
Discussion
Ms. Gartrell argues that because she received the same letter as
members of the putative class, she is able to represent them. She
relies on Keele v. Wexler, a Seventh Circuit case decided in 1998
ruling on whether a named plaintiff in a debt collection class
action had standing to represent subclasses who had paid a demanded
debt collection fee, when she had only paid the debt itself. The
Seventh Circuit allowed that named plaintiff to represent the
classes because while "the class representative must possess the
same interest and suffer the same injury as the individuals he or
she seeks to represent," this requirement was fulfilled because she
received the letter and was entitled to statutory damages.
Judge Corrigan finds that the case is not helpful; not only was the
named plaintiff actually a member of some of her proposed
sub-classes, but it is outside of this circuit, and pre-dates
binding cases limiting a named plaintiff's ability to represent a
separate class, including Wal-Mart Stores, Inc. v. Dukes, 564 U.S.
338, 350 (2011).
Marshall argues that Gartrell has actually proposed a "statutory
damages class composed of all persons that received a collection
letter," and an "actual damages sub-class" of people who paid after
receiving the letter.
Judge Corrigan holds that there is no such discussion of classes
and sub-classes in Gartrell's Motion, though she discusses the
"statutory damages class" in her reply. While Marshall's arguments
regarding a proposed "actual damages sub-class" lend clarity to its
standing counterarguments, they are unnecessary. Gartrell herself
does not propose an "actual damages sub-class."
On the plain reading of her proposed class, "all persons . . . who
received at least one collection letter who thereafter made a
payment to JJ Marshall on the debt referenced in the collection
letter," she is not a member of the proposed class and cannot be
its class representative. The class, as proposed, cannot be
certified.
Conclusion
Jude Corrigan concludes that the motion is Gartrell's third attempt
to certify a class. The first Motion for Class Certification was
withdrawn following the Eleventh Circuit's decision in Trichell.
The second was withdrawn after Gartrell's counsel stated at the
hearing on the motion that Gartrell intended to propose a new
class. Now, Gartrell proposes to represent a class of which she is
not even a member. The Court cannot certify such a class.
Accordingly, Judge Corrigan denied Gartrell's Third Motion for
Class Certification. No later than March 11, 2022, the parties
will file a proposal on how to proceed.
A full-text copy of the Court's Feb. 8, 2022 Order is available at
https://tinyurl.com/4h7m3uka from Leagle.com.
JOHN HANCOCK: $123MM Settlement to be Heard on May 17
-----------------------------------------------------
If you are the current or former owner of a Performance Universal
life insurance policy issued by John Hancock that was subject to a
cost of insurance rate increase, your rights may be affected by a
class action settlement
JND Legal Administration on Feb. 9 disclosed that a proposed
settlement has been reached in a class action lawsuit called
Jeffrey Leonard et. al. v. John Hancock Life Insurance Company of
New York et. al., Case No. 18-CV-4994 (AKH) (the "Settlement").
This notice provides a summary of your rights and options. More
details are available at www.HancockCOISettlement.com
What is this about? The lawsuit alleges that Defendants, John
Hancock Life Insurance Company of New York and John Hancock Life
Insurance Company (U.S.A.) (collectively, "John Hancock") increased
cost of insurance ("COI") rates on certain Performance Universal
Life policies beginning in 2018 and 2019 unlawfully and in
violation of the terms of the policies (the "COI Increase"). The
lawsuit further alleges that John Hancock violated certain state
statutes for issuing false and misleading illustrations regarding
the policies. John Hancock denies these claims; however, both sides
have agreed to the Settlement to avoid the cost of further
litigation.
Who is affected? You are potentially a member of the Settlement
class whose rights may be affected if you are a current or former
owner of one or more of the universal life insurance policies
subjected to the COI Increase (a "Class Policy" or "Class
Policies"). To learn which policies are excluded go to
www.HancockCOISettlement.com.
How do I know if I am an owner of a Class Policy? You are the owner
of a Class Policy if you currently have or previously held a direct
or indirect ownership interest in any Class Policy. If you have any
questions regarding ownership, please visit the Settlement website
or contact the Settlement Administrator.
What does the Settlement provide? The Settlement provides for cash
payments that will be distributed on a pro rata basis from a fund
of up to $123,074,128.32. In addition, John Hancock has agreed not
to increase COI rate scales on Class Policies for a period of five
years or more, and has agreed not to challenge the validity of the
Class Policies on various grounds. For more details, visit
www.HancockCOISettlement.com.
What are my options? You can do nothing, exclude yourself, or
object to the Settlement.
Do nothing. You will automatically receive payment in the mail and
the other non-cash benefits if you are entitled to them. You will
give up your right to sue or continue to sue John Hancock for the
claims in this lawsuit.
Exclude yourself. You will not receive a payment or any other
benefits of the Settlement. You will keep your right to sue John
Hancock at your own expense and with your own attorney for the
claims in this lawsuit. Your exclusion request must follow the
specific format required by the Court. For more information on how
to exclude yourself from the Settlement please visit the Settlement
website or contact the Settlement Administrator.
Object. If you do not exclude yourself from the Settlement Class,
you may object or tell the Court what you don't like about the
Settlement.
Exclusion requests and objections must be sent to Hancock COI
Settlement, c/o JND Legal Administration, P.O. Box 91398, Seattle,
WA 98111, postmarked by March 28, 2022. For more details about your
rights and options and how to exclude yourself or object, go to
www.HancockCOISettlement.com.
What happens next? The Court will hold a Fairness Hearing on May
17, 2022 at 2:30 p.m. at the Daniel Patrick Moynihan United States
Courthouse, 500 Pearl Street, New York, NY 10007-1312, to consider
whether to approve the Settlement, Class Counsel's attorneys' fees
and expenses (not to exceed 33% of the value of the benefits
provided by the Settlement), and incentive awards (up to $25,000
per Plaintiff). The Court has appointed Susman Godfrey L.L.P. as
Class Counsel. Class Counsel will answer any questions that the
Court may have. You or your attorney may ask to speak at the
hearing at your own expense, but you don't have to.
How do I get more information? For more information and to view the
full notice, go to www.HancockCOISettlement.com, or contact the
Settlement Administrator by writing Hancock COI Settlement, c/o JND
Legal Administration, P.O. Box 91398, Seattle, WA 98111, or calling
1-877-389-2130.
Please do not contact the Court.
JPMORGAN CHASE: $60MM Spoofing Settlement to be Heard on July 7
---------------------------------------------------------------
UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK
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.
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. Secs. 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 ww.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.
For more information, call toll-free 1- 877-999-4333 (if calling
from outside the United States or Canada, call 1- 414-921-0344) or
visit www.preciousmetalsfuturesclassactionsettlement.com.
**** Please do not call the Court or the Clerk of the Court for
information about the Settlement. ****
Contact: Vincent Briganti, (914)733-7221
KNIGHT-SWIFT TRANSPORTATION: Scheduling Order Entered in Hobbs
--------------------------------------------------------------
In the class action lawsuit captioned as Tavares Hobbs, Ricardo
Bell and Robert Shaw, on behalf of themselves and all others
similarly situated, v. Knight-Swift Transportation Holdings, Inc.
and Swift Transportation Co. of Arizona, LLC, Case No.
1:21-cv-01421-AT-SDA (S.D.N.Y.), the Hon. Judge Stewart D. Aaron
entered a scheduling order as follows:
1. The parties shall meet and confer and Feb. 21, 2022
file a declaration setting forth the
members of Swift Transportation Co. Of
Arizona, LLC at the time this action was
commenced and the citizenship of such
members no later than:
2. The deadline to file an amended April 8, 2022
pleading or add additional parties is:
3. The parties shall file a joint letter April 8, 2022
indicating whether either side intends
to utilize an expert in conjunction
with their motion regarding class
certification and, if so, setting
forth the nature of the expert's
testimony no later than:
4. The deadline for the completion of July 7, 2022
all discovery regarding issues
pertaining to class certification is:
5. The parties shall file their Sept. 7, 2022
anticipated cross-motions regarding
class certification no later than:
Knight-Swift is a publicly traded, American motor carrier holding
company based in Phoenix, Arizona.
A copy of the Court's order dated Feb. 9, 2021 is available from
PacerMonitor.com at https://bit.ly/3BkfPsy at no extra charge.[CC]
KUCOIN: Williams Bid to Certify Class Partly Granted
----------------------------------------------------
In the class action lawsuit captioned as CHASE WILLIAMS,
individually and on behalf of all others similarly situated, v.
KUCOIN, MICHAEL GAN, JOHNNY LYU and ERIC DON, Case No.
1:20-cv-02806-GBD-RWL (S.D.N.Y.), the Hon. Judge George B. Daniels
entered an order:
1. adopting Magistrate Judge Lehrburger's Report; and
2. granting in part the Plaintiff's motion to certify class
and appointing class representative and counsel for a
narrower class that does not include purchasers of Tokens
that Plaintiff did not purchase.
Thus, the class is certified as:
"All persons who purchased on the KuCoin exchange any TOMO-
brand tokens listed for sale on a domestic U.S. exchange, or
who otherwise purchased on the KuCoin exchange TOMO-brand
tokens in a domestic U.S. transaction, between September 15,
2017 and July 2, 2021."
The Plaintiff Chase Williams is appointed as Class Representative
and the law firms of Roche Freedman LLP and Selendy & Gay PLLC are
appointed as Class Counsel.
Magistrate Judge Lehrburger not only correctly analyzed this issue
under the relevant Second Circuit case law (R. at 12-18) but also
allowed Plaintiff to submit an expert declaration in support of his
motion. This Court agrees with Magistrate Judge Lehrburger that
Plaintiff's expert declaration fails to support the proposition
that Plaintiff's injury "implicates the same set of concerns" as
putative class members who did not purchase TOMO Tokens. Thus, the
Plaintiff has standing to bring a putative class action on behalf
of purchasers of TOMO Tokens on the KuCoin exchange within the
relevant class period ("TOMO Token Class").
Lead Plaintiff Chase Williams purchased TOMO-brand digital asset
tokens on KuCoin, an online crypto-asset exchange. He brings this
putative class action against the Defendants for violations of
federal and state securities laws, claiming that KuCoin, and its
principals, transacted in unregistered securities and failed to
register KuCoin as a securities exchange and as a securities
broker-dealer.
The Plaintiff brings a total of 154 causes of action. The first
five causes of action allege violations of the federal securities
laws. The remaining 149 causes of action assert violations of the
analogous security laws of 49 states, the District of Columbia, and
Puerto Rico.
KuCoin, an online crypto-asset exchange, sells (amongst other
digital assets) ten different tokens: EOS, SNT, QSP, KNC, TRX, OMG,
LEND, ELF, CVC, and TOMO (the "Tokens"). KuCoin charges a fee for
each transaction it facilitates. (Id.) The issuers of the Tokens
did not register them as securities with the Securities and
Exchange Commission ("SEC"), and KuCoin did not register itself as
either an exchange or broker-dealer with the SEC.
A copy of the Court's order dated Feb. 9, 2021 is available from
PacerMonitor.com at https://bit.ly/3uML1zD at no extra charge.[CC]
LABOR SOURCE: Conditional Cert Bid Partly Granted in Murphy Suit
----------------------------------------------------------------
In the class action lawsuit captioned as MARCQUISE MURPHY and
RATANYA ROGERS, individually and on behalf of all others similarly
situated, v. LABOR SOURCE, LLC d/b/a CATSTAFF d/b/a ONE SOURCE
STAFFING AND LABOR, and BLUSKY RESTORATION CONTRACTORS, LLC, Case
No. 19-cv-1929-ECW (D. Minn.), the Hon. Judge Elizabeth Cowan
Wright entered an order:
1. granting and denying in part the Plaintiffs' motion for
conditional certification and court-authorized notice
pursuant to 29 U.S.C. section 216(b);
2. denying the Plaintiff's motion to strike or void
defendants' Rule 68 Offer; and
3. granting the Defendants' motion to dismiss the claims of
Plaintiff Ratanya Rogers; and
4. dismissing without prejudice tHe Plaintiff Ratanya Rogers'
claims.
The Plaintiffs seek to conditionally certify two collectives of
individuals as follows:
-- National Collective:
"All current and former hourly, non-exempt employees,
including but not limited to laborers, non-exempt team
leads/crew leaders, non-commercial drivers, technicians,
carpenters, apprentices, cleaning crew, plumbers, welders,
and other laborers with similar job duties employed by
Defendant BluSky Restoration Contractors, LLC throughout the
United States at any time from July 23, 2016 through the
present;" and
-- Minnesota Collective:
"All current and former hourly, non-exempt employees,
including but not limited to, laborers, non-exempt team
leads/crew leaders, non-commercial drivers, technicians,
carpenters, apprentices, cleaning crew, plumbers, welders,
and other laborers with similar job duties employed by
Defendant Labor Source, LLC either individually or jointly
with Defendant BluSky Restoration Contractors, LLC and who
worked on any BluSky projects in the State of Minnesota at
any time from July 23, 2016 through the present."
On July 23, 2019, the Plaintiffs Murphy and Rogers initiated this
putative collective and class action on behalf of themselves and
other similarly situated individuals who have worked for Labor
Source and BluSky Restoration as non-exempt manual laborers.
The Plaintiffs and the putative class and collective members
"challenge[d] Defendants' minimum wage and overtime violations of
the Fair Labor Standards Act (FLSA), as well as the wage, hour,
labor, and other applicable laws of the State of Minnesota,
including the Minnesota Fair Labor Standards Act and the Minnesota
Payment of Wages Act (MPWA).
A copy of the Court's order dated Feb. 8, 2021 is available from
PacerMonitor.com at https://bit.ly/3JnC0ku at no extra charge.[CC]
The Plaintiffs are represented by:
Carolyn H. Cottrell, Esq.
Ori Edelstein, Esq.
William M. Hogg, Esq.
SCHNEIDER WALLACE
COTTRELL KONECKY LLP
2000 Powell Street, Suite 1400
Emeryville, CA 94608
Telephone: (415) 421-7100
Facsimile: (415) 421-7105
E-mail: ccottrell@schneiderwallace.com
oedelstein@schneiderwallace.com
whogg@schneiderwallace.com
- and -
E. Michelle Drake, Esq.
BERGER & MONTAGUE, P.C.
43 SE Main Street, Suite 505
Minneapolis, MN 55414
Telephone: (612) 594-5999
LABOR SOURCE: Rogers Dismissed From Murphy Suit Without Prejudice
-----------------------------------------------------------------
In the case, MARCQUISE MURPHY and RATANYA ROGERS, individually and
on behalf of all others similarly situated, Plaintiffs v. LABOR
SOURCE, LLC d/b/a CATSTAFF d/b/a ONE SOURCE STAFFING AND LABOR, and
BLUSKY RESTORATION CONTRACTORS, LLC, Defendants, Case No.
19-cv-1929 (ECW) (D. Minn.), Magistrate Judge Elizabeth Cowan
Wright of the U.S. District Court for the District of Minnesota
issued an Order:
a. granting in part and denying in part the Plaintiffs' Motion
for Conditional Certification and Court-Authorized Notice
Pursuant to 29 U.S.C. Section 216(b);
b. denying the Plaintiffs' Motion to Strike or Void
Defendants' Rule 68 Offer; and
c. granting the Defendants' Motion to Dismiss the Claims of
Plaintiff Ratanya Rogers.
I. Plaintiffs' Motion for Conditional Certification
A. Background
On July 23, 2019, Plaintiffs Murphy and Rogers initiated the
putative collective and class action on behalf of themselves and
other similarly situated individuals who have worked for Defendants
Labor Source and BluSky as non-exempt manual laborers. The
Plaintiffs and the putative class and collective members
"challenged the Defendants' minimum wage and overtime violations of
the Fair Labor Standards Act, 29 U.S.C. Sections 201, et seq.
('FLSA'), as well as the wage, hour, labor, and other applicable
laws of the State of Minnesota, including the Minnesota Fair Labor
Standards Act, Minn. Stat. Section 177.21 et seq. ('MFLSA') and the
Minnesota Payment of Wages Act, Minn. Stat. Section 181.01 et seq.
('MPWA')."
BluSky provides commercial, industrial, governmental, residential,
and multifamily restoration, renovation, environmental, and roofing
services across the United States. Labor Source hires employees to
serve as unskilled and semi-skilled temporary laborers, most
commonly in the construction, manufacturing, restoration, and
disaster recovery industries. It provides temporary labor across
the country, and contracts with its clients to provide temporary
labor on a project-by-project basis. By way of example, on Sept.
25, 2013, One Source and BluSky (as the customer) entered into a
rate agreement setting the billing rate for the workers supplied by
One Source, which included the rates for general labor, leads,
vans, worker per diem (including for hotels), worker travel time,
and worker stand down time. As a temporary staffing company, the
main source of Labor Source's revenue is the rate paid by its
clients for each hour worked by Labor Source employees.
Along with seeking conditional certification of the matter as a
collective action under the FLSA, the Plaintiffs move for
Court-authorized notice to putative class members. They seek to
conditionally certify two collectives of individuals as follows:
a. National Collective: All current and former hourly,
non-exempt employees, including but not limited to laborers,
non-exempt team leads/crew leaders, non-commercial drivers,
technicians, carpenters, apprentices, cleaning crew, plumbers,
welders, and other laborers with similar job duties employed by
Defendant BluSky Restoration Contractors, LLC throughout the United
States at any time from July 23, 2016 through the present.
b. Minnesota Collective: All current and former hourly,
non-exempt employees, including but not limited to, laborers,
non-exempt team leads/crew leaders, non-commercial drivers,
technicians, carpenters, apprentices, cleaning crew, plumbers,
welders, and other laborers with similar job duties employed by
Defendant Labor Source, LLC either individually or jointly with
Defendant BluSky Restoration Contractors, LLC and who worked on any
BluSky projects in the State of Minnesota at any time from July 23,
2016 through the present.
The Plaintiffs also seek an order from the Court setting a 90-day
notice period; approving the form of the Plaintiffs' proposed
notice; authorizing the Plaintiffs' counsel to mail, email, and
text message the notice at the beginning of the 90-day notice
period; authorizing the Plaintiffs' counsel to mail, email, and
text message a reminder notice at the sixtieth day of the notice
period; ordering BluSky to post the Court-approved notice in a
conspicuous location at all active jobsites in the United States;
ordering BluSky to produce a list of all persons employed by BluSky
as a manual laborer in the United States, at any time from July 23,
2016 to the present; ordering Labor Source to produce a list of all
persons employed by Labor Source as a manual laborer on any BluSky
project in Minnesota from July 23, 2016 through the present; and
granting equitable tolling for the putative Collective members from
May 21, 2020 until the close of the opt-in period.
B. Discussion
a. BluSky
1. Similarly Situated Putative Class Members
The Plaintiffs argue that under the fairly lenient standard
applicable at the notice stage, the pleadings and declarations
submitted in support of the Motion sufficiently establish a
colorable basis that manual laborers were and are subject to
BluSky's timekeeping system and are victims of BluSky's standard
practices of failing to record and failing to pay manual laborers
for all of their hours worked. They point to the eight declarations
from former manual laborers and non-commercial drivers who worked
for BluSky and Labor Source at numerous project locations around
the country.
BluSky counters that the Plaintiffs' putative collective includes
workers who worked on projects staffed out of over 30 BluSky
offices in at least 40 states, including over 12,000 different
projects involving over 100 different temporary labor providers,
and that the Plaintiffs fail to present any evidence, let alone
establish, that all of the workers employed by these labor
providers were subject to the same allegedly unlawful Labor Source
policies that Plaintiffs were; and as a result, the Plaintiffs are
not "similarly situated" to the putative collective they seek to
certify.
Judge Wright finds that the Plaintiffs' evidence is insufficient to
establish a colorable basis for a nationwide collective action even
under the lenient conditional certification standard. It is true
that each of these declarations professes that the Plaintiffs
learned by talking with other employees that BluSky uses the same
timekeeping and payment practices at each project regardless of
specific location. However, assertions not based on personal
knowledge will not show that employees are similarly situated.
There is no evidence that the conduct alleged by the Plaintiffs is
happening with any other labor provider and BluSky.
That said, Judge Wright holds that the Plaintiffs' evidence
supports the assertions of violations resulting from a common
policy at the Weyerhaeuser Project. The Minnesota collective can be
identified without a determination of joint employer status because
the collective is limited to those employed by Labor Source who
worked at the BluSky Weyerhaeuser Project. Judge Wright therefore
concludes that the Plaintiffs have established a colorable basis
for their claim that they and the putative class members were the
victims of a single decision, policy, or plan by BluSky as to the
Weyerhaeuser Project to not compensate time that should have
properly been considered work time, and are thus similarly
situated.
2. Interested Opt-In Plaintiffs
"In order for a case to be appropriate for collective-action status
under the FLSA, the Court must be satisfied that there are other
employees who desire to opt in." "The plaintiff's burden to
demonstrate interest is not particularly onerous."
In the case, Judge Wright finds that the Plaintiffs did not address
interest in their papers. However, there are at least five opt-in
Minnesota Plaintiffs (not even including Norris). The facts of the
case and the Plaintiffs' "not particularly onerous" burden lead
Judge Wright to conclude that Murphy combined with five opt-in
Plaintiffs demonstrates sufficient interest in the litigation from
others on the Weyerhaeuser Project in Minnesota who are similarly
situated.
b. Equitable Tolling as to Labor Source
Labor Source argues that potential FLSA claims of putative opt-in
members of the proposed Minnesota Collective are time-barred and
that the Plaintiffs' attempt to rectify their untimely motion
through equitable tolling fails to meet the high threshold for such
relief. Under the FLSA, the statute of limitations is "two years
after the cause of action accrued except that a cause of action
arising out of a willful violation may be commenced within three
years after the cause of action accrued."
In the case, Judge Wright holds that the Plaintiffs have asserted
willfulness on the part of the Defendants in their Complaint. More
than three years and 209 days have passed since the last work and
payment on the Weyerhaeuser Project in March 2018, meaning that any
remaining opt-in plaintiff's claim is time-barred. Judge Wright
therefore denies the Motion for Conditional Certification with
respect to Labor Source. However, as Labor Source concedes, the
parties that have already opted-in as the Plaintiffs remain parties
to the action.
C. Equitable Tolling as to BluSky
BluSky does not challenge the Plaintiffs' request for equitable
tolling in its written submissions. As described, BluSky filed a
second Motion to Dismiss and a Motion for Certification for
Interlocutory Appeal, and the time it took to rule on these Motions
was outside of the Plaintiffs' control.
Judge Wright finds that the Plaintiffs acted diligently on the
whole to file their Motion for Conditional Certification once the
Court ruled on BluSky's Motions. BlueSky's continued motion
practice caused much of the delay, and as noted by the Eighth
Circuit, there may be instances when equitable tolling is
appropriate even though the defendant was not the cause of the time
bar citing See Redman v. U.S. W. Bus. Res., Inc., 153 F.3d 691, 695
n.5 (8th Cir. 1998) (citation omitted). She will not punish
unidentified opt-ins because BluSky filed multiple motions and
because the Court took some time to rule on those motions,
including the Motion for Conditional Certification. As such, she
tolls the statute of limitation for the period from Sept. 20, 2019,
the date the Defendants filed the first Motion to Dismiss, through
the date of her Order. While the Plaintiffs sought additional
tolling through the conclusion of the opt-in period, Judge Wright
will deny this request without prejudice.
D. F. Notice
Having determined that the Plaintiffs have met their burden of
showing this case is appropriate for conditional certification as
to BluSky, the only remaining issue is the proposed notice.
Given Judge Wright's ruling as to the scope of the collective, as
set forth , the collective is modified to include the following:
"All current and former hourly, non-exempt employees, including but
not limited to, laborers, non-exempt team leads/crew leaders,
non-commercial drivers, technicians, carpenters, apprentices,
cleaning crew, plumbers, welders, and other laborers with similar
job duties employed by Defendant Labor Source, LLC jointly with
Defendant BluSky Restoration Contractors, LLC and who worked on the
BluSky Weyerhaeuser project in the State of Minnesota at any time
from July 23, 2016 through the present.
The Plaintiffs further request that the Court approves the
Court-Authorized Notice and Consent to Sue form. Judge Wright
grants the Plaintiff's request for a 90-day notice period.
Judge Wright exercises her discretion to facilitate notice in the
case and approves the plan proposed by the Plaintiffs subject to
the following modifications: "The initial TO line in the proposed
notice will read: ALL CURRENT AND FORMER MANUAL LABORERS WHO HAVE
WORKED ON THE WEYERHAEUSER PROJECT IN THE STATE OF MINNESOTA FOR
BLUSKY RESTORATION CONTRACTORS, LLC FROM JULY 23, 2016 TO THE
PRESENT."
She also removes the phrase "Labor Source, LLC (also known as One
Source Staffing and Labor or CATSTAFF)" in paragraph 1
Introduction" of the proposed notice.
As to paragraph 2, this portion of the notice is modified to read:
"A lawsuit was filed against BluSky by Marcquise Murphy (Plaintiff)
on behalf of himself and all other similarly situated individuals.
Specifically, the lawsuit contends that BluSky, either on its own
or jointly with Labor Source, LLC (also known as One Source
Staffing and Labor or CATSTAFF), failed to properly record all
hours worked and made improper deductions from workers' pay over
the three-year period before the lawsuit was filed, and that these
individuals are owed minimum wages and overtime for time they
worked in excess of 40 hours per week. BluSky denies the
allegations and contends that it properly paid all manual
laborers."
Paragraph 3 of the proposed notice is modified as follows to remove
the reference to Labor Source and to reflect the restricted scope
of the collective to the Minnesota Weyerhaeuser Project: "Plaintiff
has sued BluSky to recover minimum wage and/or overtime
compensation on behalf of themselves, and on behalf of all
hourly-paid manual laborers who worked on the Minnesota
Weyerhaeuser Project. Plaintiff also seeks an additional amount for
liquidated damages equal to the amount of the minimum wages and/or
overtime compensation owed, as well as attorneys' fees and costs to
be paid by BluSky."
Paragraph 10 of the proposed notice is also modified to omit "This
Notice is only a summary. For more detailed information, you may
review the Lawsuit and other documents for this case at the Notice
website, which can be accessed at [INSERT URL]." Judge Wright omits
this portion as it is unclear from the Plaintiffs what information
the website would include.
A portion in paragraph 5 allowing the opt-in plaintiffs to submit
the opt-in form electronically via a website is also omitted for
similar reasons. The remainder of the proposed notice will remain
largely the same except insofar as changed to be consistent with
the Order, as shown in Attachment A to the Order.
The Plaintiffs will use the proposed notice as modified by the
Court, as set forth in Attachment A. The Notice and Consent will be
disseminated by U.S. Mail (with skip tracing) and email. While the
Plaintiffs seek to allow a party to opt-in by electronic signature
on a website that contains the notice, there is nothing before the
Court as to what information such a site would contain. Moreover,
Judge Wright will not require a posted copy in a conspicuous
location at all current BluSky projects, in light of the limited
scope of the collective and based on the fact that such a notice
borders on solicitation beyond the scope of the collective.
Although the Court is not opposed to notification via text
messaging, it is unclear what the Plaintiffs propose this notice
should include. The laintiffs may renew this request as part of the
reminder notice. To this end, Judge Wright authorizes the
Plaintiffs' counsel to send a reminder notice, by email (with the
notice attached as an Adobe pdf document) and mail, to the putative
collective members on the 60th day of the 90-day notice period
consistent with the communication at Docket Entry 136-10, minus the
reference to Labor Source in the body of the email.
Judge Wright Court also grants the Plaintiffs' request for
production of the following list of information: "All current and
former hourly, non-exempt employees including laborers, non-exempt
team leads, non-exempt crew leaders, non-commercial drivers,
technicians, carpenters, apprentices, cleaning crew, plumbers,
welders, and other laborers with similar job duties employed by
Labor Source and who worked on the BluSky the Weyerhaeuser project
in Minnesota anytime from July 23, 2016 through the present,
including each individual's (1) name, (2) last known mailing
address, (3) last known email address (whether work or personal)
and phone number(s), and (4) dates of employment."
The phone number will not be used unless the Court allows a further
reminder notice via text messaging. All of this information will be
provided to the Plaintiffs' counsel within 14 days of the Order.
II. Plaintiffs' Motion to Strike Rule 68 Offer
A. Background
On Jan. 12, 2021, the Defendants made the following Rule 68 Offer
of Judgment to the then-named Plaintiffs and existing opt-in
Plaintiffs: "Defendants Labor Source, LLC d/b/a Catstaff d/b/a One
Source Staffing and Labor (Labor Source) and BluSky Restoration
Contractors, LLC (BluSky) (collectively, Defendants), by and
through the undersigned counsel, and pursuant to Rule 68 of the
Federal Rules of Civil Procedure, hereby offer the following to
Plaintiffs Marcquise Murphy, Ratanya Rogers, Cynthia Hodo,
DeAntwone Norris, Devin Pettis, Laquon Blackmon, and Ledon Brown
(Plaintiffs) as a compromise of the above-referenced case as it
pertains to Plaintiffs' claims against Defendants, with no
admission of wrongdoing by the Defendants."
The terms and conditions of this Offer of Judgment are as follows:
1. That Judgment be entered in the Plaintiffs' favor in the
above-captioned case for a total sum of $76,000 in backpay and
liquidated damages, and reasonable attorney fees and costs up to an
additional $76,000, in full and final resolution of all issues
raised in the Plaintiffs' Amended Complaint and asserted against
the Defendants in the action.
2. The backpay and liquidated damages portion of the Offer of
Judgment is intended to be apportioned as follows: Marcquise
Murphy: $8,500, Ratanya Rogers: $9,000, Cynthis Hodo: $9,000,
DeAntwone Norris: $13,000, Devin Pettis: $9,000, Laquon Blackmon:
$8,500, Ledon Brown: $19,000.
3. This Offer of Judgment is a total obligation offer and
includes all accrued prejudgment interest, costs and disbursements,
and any applicable attorney fees under any theory or basis
whatsoever. Thus, the amounts offered in this Offer of Judgment are
inclusive of any attorney fees or costs and, if accepted, the
Plaintiffs' counsel has no rights to petition the Court for any
additional remedies including but not limited to interest, attorney
fees, or costs.
4. This Offer of Judgment is conditioned on the unanimous
acceptance of all seven Plaintiffs.
5. This Offer of Judgment applies to all claims between all
the Plaintiffs and the Defendants under federal and state law
arising from the facts, events, transactions, and series thereof
that form the subject matter of this action and, if accepted, acts
as a complete bar to any further claims arising from such facts,
events, transactions, and series thereof.
6. This Offer of Judgment is made for the purposes specified
in Federal Rules of Civil Procedure 68, and is not to be construed
either as an admission that the Defendants are at fault or liable
in the action, or that the Plaintiffs have suffered damages or are
otherwise entitled to any relief. This Offer of Judgment is not a
waiver or relinquishment of the Defendants' defenses in the action.
A judgment entered upon acceptance of this Offer of Judgment will
not be deemed to have determined or adjudicated any issue relevant
to the merits of Plaintiffs' claims, or the claims of others, and
will instead be construed as effecting the settlement of this
case.
7. This Offer of Judgment is conditioned upon the entry of
final judgment as to all counts in the Plaintiffs' Complaint
against the Defendants in this action.
8. Acceptance of this offer must be made by service of a
written notice of acceptance within 14 days after service of this
offer. Such written notice must accept the offer as stated, without
qualification or variation. If this offer is not accepted within 14
days, it will be deemed automatically withdrawn.
9. Neither this Offer of Judgment nor any evidence thereof
will be filed or otherwise used in any manner in any court, action,
or proceeding of any kind except under the following conditions:
This Offer of Judgment may be filed in this action if (1) accepted,
then solely for purposes of entering judgment in this action on the
terms specified therein as set forth in Fed. R. Civ. P. 68(a); or
(2) not accepted, then solely for purposes of determining attorney
fees and costs in the action.
The Rule 68 Offer was not accepted. There is no evidence in the
record that any of the named Plaintiffs or the opt-in Plaintiffs
wanted to accept their respective offers but could not do so based
on a lack of unanimity of the Plaintiffs. Furthermore, there have
been additional opt-in plaintiffs since the date of the Rule 68
Offer.
B. Analysis
The Plaintiffs argue that the Defendants' Rule 68 Offer, which
seeks to extinguish this class action before a ruling on class
certification, is improper, noting that courts in this District
have reasoned that allowing class action defendants to "pick off"
plaintiffs with settlement offers prior to obtaining an affirmative
ruling on class certification would frustrate the objectives of
class actions, would invite waste of judicial resources, and
because it seeks to extinguish the class claims before the court
has decided class certification creates a conflict of interest.
They also argue that the Rule 68 Offer should be stricken or
invalidated in order to relieve the Class Representatives of the
burden of shouldering the conflict between their duty to pursue
class certification with the risk of having costs shifted back to
them.
In addition, the Plaintiffs contend that the Defendants' Rule 68
Offer was structured in such a way to stoke conflict between the
Offerees themselves by requiring unanimity of acceptance. They
further argue that the early nature of the Rule 68 Offer precluded
meaningful discovery needed to assess their damages and evaluate
the Offer.
Judge Wright holds that (i) by its terms, Rule 68 does not create
an exception for class or mass action; (ii) even assuming that the
named Plaintiffs and opt-ins do not receive a judgment more
favorable than that offered by the Rule 68 Offer, they will only be
responsible for their apportionment of costs allowed under 28
U.S.C. Section 1920; (iii) there is no indication in the case that
any of the Plaintiffs or opt-ins sought to accept the offer, nor do
the Plaintiffs assert that any of the offers were so low that the
Defendants knew that one of the offerees would reject the offer;
and (iv) she will not read into Rule 68 an equity requirement that
a plaintiff must have meaningful discovery before an offer can be
made, even if the Plaintiffs are correct that they did not have
enough information in their possession from Defendants to determine
whether the Rule 68 Offer was appropriate. For all of these
reasons, she denies the Plaintiffs' Motion to Strike the Rule 68
Offer.
III. Defendants' Motion to Dismiss
A. Background
The Defendants seek an order dismissing Rogers from the action
under Rules 37 and 41 of the Federal Rules of Civil Procedure in
light of the Court's Order directing the two named Plaintiffs,
including Rogers, to appear for deposition prior to Defendants
responding to Plaintiffs' pending Motion for Conditional
Certification, and her repeated failure to appear for her properly
noticed depositions.
B. Analysis
Judge Wright holds that Rogers had "affirmative obligations" as a
litigant, including participating in the discovery procedures
ordered by the Court, and failed to meet those obligations. While
the Court is sympathetic to Rogers' circumstances, the fact remains
that she was ordered to appear for her deposition by April 15, she
did not do so, and she was out of contact with her own lawyers for
so long that curing her failure to appear was no longer possible.
Rogers' death renders the deposition option unavailable, and the
Defendants would be somewhat prejudiced if Rogers remained a named
Plaintiff.
For these reasons, she grants the Motion to Dismiss the Claims of
Plaintiff Rogers in part insofar as the Court dismisses her claims
without prejudice under Rule 37(b), Rule 37(d), and Rule 41. This
dismissal does not prevent a substitute for Rogers from opting into
the case consistent with the applicable law. No other sanction will
be awarded to the Defendants.
IV. Order
Based on the foregoing, and all the files, records, and proceedings
therein, Judge Wright (i) granted in part and denied in part the
Plaintiffs' Motion for Conditional Certification; (ii) denied the
Plaintiff's Motion to Strike; and (iii) granted the Defendants'
Motion to Dismiss. She dismissed without prejudice Plaintiff
Rogers' claims.
A full-text copy of the Court's Feb. 8, 2022 Order is available at
https://tinyurl.com/5ytbj7df from Leagle.com.
LAS VEGAS SANDS: Bid to Dismiss Trust Suit Pending
--------------------------------------------------
Las Vegas Sands Corp. disclosed in Form 10-K Annual Report for the
fiscal year ended December 31, 2021, filed with the Securities and
Exchange Commission on February 4, 2022, that the motion to dismiss
the amended complaint filed by The Daniels Family 2001 Revocable
Trust is pending before the US District Court of Nevada.
On October 22, 2020, The Daniels Family 2001 Revocable Trust, a
putative purchaser of the company's shares, filed a purported class
action complaint in the U.S. District Court against Las Vegas Sands
Corp. (LVSC), Sheldon G. Adelson and Patrick Dumont. The complaint
asserts violations of Sections 10(b) and 20(a) of the Securities
Exchange Act of 1934 and alleges that LVSC made materially false or
misleading statements, or failed to disclose material facts, from
February 27, 2016 through September 15, 2020, with respect to its
operations at the Marina Bay Sands, its compliance with Singapore
laws and regulations, and its disclosure controls and procedures.
On January 5, 2021, the U.S. District Court entered an order
appointing Carl S. Ciaccio and Donald M. DeSalvo as lead
plaintiffs. On March 8, 2021, Lead Plaintiffs filed a purported
class action amended complaint against LVSC, Sheldon G. Adelson,
Patrick Dumont, and Robert G. Goldstein, alleging similar
violations of Sections 10(b) and 20(a) of the Exchange Act over the
same time period of February 27, 2016 through September 15, 2020.
On March 22, 2021, the U.S. District Court granted Lead Plaintiffs'
motion to substitute Dr. Miriam Adelson, in her capacity as the
Special Administrator for the estate of Sheldon G. Adelson, for
Sheldon G. Adelson as a defendant in this action.
On May 7, 2021, the defendants filed a motion to dismiss the
amended complaint. Lead Plaintiffs filed an opposition to the
motion to dismiss on July 6, 2021, and the defendants filed their
reply on August 5, 2021. All briefing on the motion to dismiss is
complete and the motion is pending before the U.S. District Court.
Las Vegas Sands Corp. is a global developer of destination
properties based in Nevada.
LIONS GATE: Settles Pending Fiduciary Litigations
-------------------------------------------------
Lions Gate Entertainment Corp. disclosed in its Form 10-Q Report
for the quarterly period ended December 31, 2021, filed with the
Securities and Exchange Commission on February 3, 2022, that the
Fiduciary Litigation settlement was approved by the Court of
Chancery of the State of Delaware.
Between July 19, 2016 and August 30, 2016, seven putative class
action complaints were filed by purported Starz stockholders in the
Court of Chancery of the State of Delaware (the Fiduciary
Litigation). On August 22, 2018, the parties to the Fiduciary
Litigation reached an agreement in principle providing for the
settlement of the Fiduciary Litigation on the terms and conditions
set forth in an executed term sheet.
On October 9, 2018, the parties to the Litigation executed a
stipulation of settlement, which was filed with the court (the
Stipulation). The Stipulation provided for, among other things, the
final dismissal of the Fiduciary Litigation in exchange for a
settlement payment made in the amount of $92.5 million, of which
$37.8 million was reimbursed by insurance. The Fiduciary Litigation
settlement was approved by the Court of Chancery of the State of
Delaware and the settlement amount and insurance reimbursement
discussed above were paid during the quarter ended December 31,
2021.
Lions Gate Entertainment is a motion picture and television studio
operator based in California.
LLOYD AUSTIN: Federal Civilian Files Suit in M.D. Florida
---------------------------------------------------------
A class action lawsuit has been filed against Lloyd J. Austin, III,
et al. The case is styled as Federal Civilian Contractor Employer,
for themselves and all others similarly situated v. Lloyd J.
Austin, III, in his official capacity as Secretary of the United
States Department of Defense; Christine Wormuth, in her official
capacity as Secretary of the United States Army; Carlos Del Toro,
in his official capacity as Secretary of the United States Navy;
David H. Berger General, in his official capacity as Commandant of
the United States Marine Corps; Frank Kendall, in his official
capacity as Secretary of the United States Air Force; Alejandro N.
Mayorkas, in his official capacity as Secretary of the Department
of Homeland Security; Robin Carnahan, in her official capacity as
Administrator of the United States General Service; Kiran Ahuja, in
her official capacity as Director of the United States Office of
Personnel Management; Lesley A. Field, in her official capacity as
Acting Administrator for Federal Procurement Policy, Office of
Management and Budget; Mathew C. Blum, in his official capacity as
Chair of the Federal Acquisition Regulatory Council; Case No.
8:22-cv-00365-SDM-TGW (M.D. Fla., Feb. 14, 2022).
The nature of suit is stated as Other Civil Rights for
Discrimination (Employment).
Lloyd James Austin III is an American retired United States Army
four-star general who, since his appointment on January 22, 2021,
has served as the 28th United States secretary of defense.[BN]
The Plaintiff is represented by:
Daniel Joseph Schmid, Esq.
Horatio G. Mihet, Esq.
Mathew D. Staver, Esq.
Richard L. Mast, Esq.
Roger K. Gannam, Esq.
P.O. Box 540774
PO Box 540774
Orlando, FL 32854-0774
Phone: (407) 875-1776
Fax: (407) 875-0770
Email: dschmid@lc.org
hmihet@lc.org
court@lc.org
rgannam@lc.org
The Defendants are represented by:
Amy Powell, Esq.
150 Fayetteville St., Suite 2100
Raleigh, NC 27601
Phone: (919) 856-4013
Email: amy.powell@usdoj.gov
- and -
Andrew Evan Carmichael, Esq.
Courtney Enlow, Esq.
Robert Charles Merritt, Esq.
Zach A. Avallone, Esq.
1100 L St. NW
Washington, DC 20005
Phone: (202) 514-3346
Email: andrew.e.carmichael@usdoj.gov
courtney.d.enlow@usdoj.gov
robert.c.merritt@usdoj.gov
zachary.a.avallone@usdoj.gov
MATTEL INC: $98MM Securities Settlement to Be Heard on May 2
------------------------------------------------------------
UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA
WESTERN DIVISION
In re Mattel, Inc. Securities Litigation
Case No. 2:19-CV-10860-MCS (PLAx)
SUMMARY NOTICE OF (I) PENDENCY OF CLASS ACTION
AND PROPOSED SETTLEMENT; (II) SETTLEMENT HEARING;
AND (III) MOTION FOR ATTORNEYS' FEES AND LITIGATION EXPENSES
This notice is for all persons and entities who purchased or
otherwise acquired the common stock of Mattel, Inc. ("Mattel")
during the period from August 2, 2017 to August 8, 2019, inclusive
(the "Class Period"), and were damaged thereby (the "Class").
Certain persons and entities are excluded from the Class by
definition, as set forth in the full printed Notice of (I) Pendency
of Class Action and Proposed Settlement; (II) Settlement Hearing;
and (III) Motion for Attorneys' Fees and Litigation Expenses (the
"Notice").
YOUR RIGHTS MAY BE AFFECTED BY A CLASS ACTION LAWSUIT PENDING IN
THIS COURT.
YOU ARE HEREBY NOTIFIED, pursuant to Rule 23 of the Federal Rules
of Civil Procedure and an Order of the United States District Court
for the Central District of California (the "Court"), that the
above-captioned litigation (the "Action") is pending in the Court.
YOU ARE ALSO NOTIFIED that Lead Plaintiffs DeKalb County Employees
Retirement System and New Orleans Employees' Retirement System have
reached a proposed settlement of the Action for $98,000,000.00 in
cash (the "Settlement") on behalf of the Class, that, if approved,
will resolve all claims in the Action.
A hearing will be held on May 2, 2022 at 9:00 a.m., before the
Honorable Mark C. Scarsi, at the United States District Court for
the Central District of California, in Courtroom 7C of the First
Street Courthouse, 350 W. First Street, Los Angeles, California
90012, for the following purposes: (a) to determine whether the
proposed Settlement on the terms and conditions provided for in the
Stipulation is fair, reasonable, and adequate to the Class, and
should be finally approved by the Court; (b) to determine whether a
Judgment substantially in the form attached as Exhibit B to the
Stipulation should be entered dismissing the Action with prejudice
against Defendants; (c) to determine whether the proposed Plan of
Allocation for the proceeds of the Settlement is fair and
reasonable and should be approved; (d) to determine whether the
motion by Lead Counsel for attorneys' fees and litigation expenses
should be approved; and (e) to consider any other matters that may
properly be brought before the Court in connection with the
Settlement.
If you are a member of the Class, your rights will be affected by
the pending Action and the Settlement, and you may be entitled to
share in the Settlement Fund. If you have not yet received the
Notice and Claim Form, you may obtain copies of these documents by
contacting the Claims Administrator at Mattel Securities
Litigation, c/o JND Legal Administration, P.O. Box 91434, Seattle,
WA 98111, 1-877-379-5987. Copies of the Notice and Claim Form can
also be downloaded from the website maintained by the Claims
Administrator, www.MattelSecuritiesLitigation.com
If you are a member of the Class, in order to be eligible to
receive a payment under the proposed Settlement, you must submit a
Claim Form postmarked (if mailed), or online, no later than June 8,
2022, in accordance with the instructions set forth in the Claim
Form. If you are a Class Member and do not submit a proper Claim
Form, you will not be eligible to share in the distribution of the
net proceeds of the Settlement but you will nevertheless be bound
by any releases, judgments, or orders entered by the Court in
connection with the Settlement.
If you are a member of the Class and wish to exclude yourself from
the Class, you must submit a request for exclusion such that it is
received no later than April 11, 2022, in accordance with the
instructions set forth in the Notice. If you properly exclude
yourself from the Class, you will not be bound by any judgments or
orders entered by the Court in the Action and you will not be
eligible to share in the proceeds of the Settlement.
Any objections to the proposed Settlement, the proposed Plan of
Allocation, or Lead Counsel's motion for attorneys' fees and
reimbursement of litigation expenses, must be filed with the Court
and delivered to Lead Counsel and Defendants' counsel such that
they are received no later than April 11, 2022, in accordance with
the instructions set forth in the Notice.
Please do not contact the Court, the Clerk's office, Mattel, the
other Defendants, or their counsel regarding this notice. All
questions about this notice, the proposed Settlement, or your
eligibility to participate in the Settlement should be directed to
Lead Counsel or the Claims Administrator. Visit
www.MattelSecuritiesLitigation.com or call toll-free at
1-877-379-5987.
Inquiries, other than requests for the Notice and Claim Form,
should be made to
Lead Counsel:
BERNSTEIN LITOWITZ BERGER & GROSSMANN LLP
John Rizio-Hamilton, Esq.
1251 Avenue of the Americas, 44th Floor
New York, NY 10020
1-800-380-8496
settlements@blbglaw.com
Requests for the Notice and Claim Form should be made to:
Mattel Securities Litigation
c/o JND Legal Administration
P.O. Box 91434
Seattle, WA 98111
1-877-379-5987
www.MattelSecuritiesLitigation.com
By Order of the Court
MCKESSON CORPORATION: Faces Class Suits Over Opioids Side Effects
-----------------------------------------------------------------
McKesson Corporation disclosed in its Form 10-Q Report for the
quarterly period ended December 31, 2021, filed with the Securities
and Exchange Commission on February 3, 2022, that it faces putative
class action lawsuits brought on behalf of children with neonatal
abstinence syndrome due to alleged exposure to opioids in utero
after exposure to the products sold and/or marketed by the
company.
Mckesson Corporation is into healthcare supply chain management
solutions, retail pharmacy, community oncology and specialty care,
and healthcare information solutions based in Texas.
MDL 2936: Amended Scheduling Order Entered in Smitty's Suit
-----------------------------------------------------------
In the class action lawsuit RE: SMITTY'S/CAM2 303 TRACTOR HYDRAULIC
FLUID MARKETING, SALES, PRACTICES, AND PRODUCTS LIABILITY
LITIGATION, MDL No. 2936, the Hon. Judge Stephen R. Bough entered
an amended scheduling order as follows:
1. The deadline for substantial March 17, 2022
completion of the parties' current,
respective written discovery
obligations is:
2. The parties shall select the April 8, 2022
eight states for class
certification briefing
on or before:
3. The Plaintiffs shall designate May 30, 2022
expert witnesses relating to
class certification issues on
or before:
4. The Defendants shall designate July 29, 2022
expert witnesses relating to
class certification issues on
or before:
5. The Plaintiffs' motion for class Aug. 29, 2022
certification shall be filed
on or before:
6. The Defendants' opposition Oct. 3, 2022
brief shall be filed on or
before:
7. The Plaintiffs' reply shall Oct. 17, 2022
be filed on or before:
8. A class certification hearing Nov. 17, 2022
will be held on:
These putative class actions arises from nearly identical
allegations concerning the manufacture, labeling, marketing, and
performance of Smitty's 303 tractor hydraulic fluid (THF) products,
including those made for and sold by CAM2 International.
The Plaintiffs in all actions allege that defendants (1)
deceptively marketed the products as meeting John Deere 303
specifications that allegedly became obsolete in the 1970s when an
essential ingredient -- sperm whale oil -- was banned from use; (2)
misrepresented the products' anti-wear and protective benefits; and
(3) used inferior ingredients such as used oils and diluted
additives that caused damage to plaintiffs' equipment.
All actions further allege that plaintiffs suffered economic losses
from buying an allegedly worthless product or a product worth less
than plaintiffs paid.
The lead case is Case No. 4:20-MD-02936-SRB (W.D. Mo.).
A copy of the Court's order dated Feb. 8, 2021 is available from
PacerMonitor.com at https://bit.ly/3BiMw9S at no extra charge.[CC]
MICROCHIP TECHNOLOGY: Jackson Suit Gets Class Certification
-----------------------------------------------------------
Microchip Technology Incorporated disclosed in its Form 10-Q Report
for the quarterly period ended December 31, 2021, filed with the
Securities and Exchange Commission on February 3, 2022, that a the
case captioned "Jackson v. Microchip Technology Inc., et al.," Case
No. 2:18-cv-02914-ROS was granted a class certification filed by
plaintiff where discovery is ongoing.
Beginning on September 14, 2018, the company and certain of its
officers were named in a putative shareholder class action lawsuit
filed in the United States District Court for the District of
Arizona, captioned "Jackson v. Microchip Technology Inc., et al.,"
Case No. 2:18-cv-02914-ROS.
On December 11, 2018, the court issued an order appointing the lead
plaintiff in the Jackson matter. An amended complaint was filed on
February 22, 2019. The complaint is allegedly brought on behalf of
a putative class of purchasers of Microchip common stock between
March 2, 2018 and August 9, 2018. The complaint asserts claims for
alleged violations of the federal securities laws and alleges that
the defendants issued materially false and misleading statements
and failed to disclose material adverse facts about the company's
business, operations, and prospects during the putative class
period. The complaint seeks, among other things, compensatory
damages and attorneys' fees and costs on behalf of the putative
class.
Defendants filed a motion to dismiss the amended complaint on April
1, 2019, which motion was granted in part and denied in part on
March 11, 2020. Plaintiff filed a motion for class certification,
which was granted by the court. Discovery is ongoing. The company
and its officers have reached an agreement in principle to settle
this litigation and are working on documenting that agreement for
submission to the court for its consideration.
Microchip Technology Incorporated develops, manufacture and sell
embedded control solutions in Arizona.
MICROCHIP TECHNOLOGY: Maknissian Securities Suit Dismissed
----------------------------------------------------------
Microchip Technology Incorporated disclosed in its Form 10-Q Report
for the quarterly period ended December 31, 2021, filed with the
Securities and Exchange Commission on February 3, 2022, that the
case captioned Maknissian v. Microchip Technology Inc., et al.,"
Case No. 2:18-cv-02924-JJT was dismissed on November 13, 2018.
The company and certain of its officers were named in a putative
shareholder class action lawsuits filed in the United States
District Court for the District of Arizona, captioned "Maknissian
v. Microchip Technology Inc., et al.," Case No. 2:18-cv-02924-JJT.
Said complaint was allegedly brought on behalf of a putative class
of purchasers of Microchip common stock between March 2, 2018 and
August 9, 2018. It asserts claims for alleged violations of the
federal securities laws and alleges that the defendants issued
materially false and misleading statements and failed to disclose
material adverse facts about the company's business, operations,
and prospects during the putative class period. The complaint
seeks, among other things, compensatory damages and attorneys' fees
and costs on behalf of the putative class.
Microchip Technology Incorporated develops, manufacture and sell
embedded control solutions in Arizona.
MICROSOFT CORP: Loses Summary Judgment v. Steven Vance, et al.
--------------------------------------------------------------
In the class action lawsuit captioned as STEVEN VANCE, et al., v.
MICROSOFT CORPORATION, Case No. 2:20-cv-01082-JLR (W.D. Wash.), the
Hon. Judge James L. Robart entered an order:
1. The court strikes Microsoft's motion for summary judgment
without prejudice to Microsoft renewing its motion after
the parties complete the discovery;
2. The court grants in part Plaintiffs' Federal Rule of Civil
Procedure 56(d) motion for additional discovery as
follows:
(a) Plaintiffs may take the depositions of Benjamin
Skrainka, Samira Samadi, Jennifer Wortman Vaughn,
Matthew M. Swann, Mustafa Kasap, Andy Bruncke, and
Jeffrey Chirico (the Microsoft Declarants) and Dr.
Michele Merler. Because Dr. Merler has already been
deposed in relation to Plaintiffs' motion for class
certification, Dr. Merler's deposition shall be
focused on the issues raised by Microsoft's motion for
summary judgment;
(b) Microsoft shall produce to Plaintiffs within 14 days
after entry of this order all documents upon which the
Microsoft Declarants relied in drafting their
declarations in support of Microsoft's motion for
summary judgment;
(c) Microsoft shall identify to Plaintiffs within 14 days
after entry of this order all non-attorney individuals
with whom the Microsoft Declarants consulted in
preparing the declarations;
(d) Microsoft shall produce to Plaintiffs by no later than
30 days after entry of this order all non-privileged
documents in its possession or control that were
drafted, sent, received, or reviewed by the Microsoft
Declarants that refer or relate to non-party
International Business Machines Corporation's ("IBM")
Diversity in Faces ("DiF") Dataset;
(e) The parties shall complete the above discovery by no
later than Friday, April 29, 2022;
(f) The court has not yet ruled on the additional
discovery requested by Plaintiffs in their Rule 56(d)
motion. If, after Plaintiffs complete their
depositions of the Microsoft Declarants, additional
discovery is necessary to oppose summary judgment,
they may file a second Rule 56(d) motion specifically
identifying that additional discovery by no later than
Thursday, May 12, 2022; and
(g) If Plaintiffs do not file a second Rule 56(d) motion,
Microsoft shall file its renewed motion for summary
judgment, if any, by no later than Thursday, May 12,
2022. The motion shall be noted in accordance with
Local Rules W.D. Wash. LCR 7(d)(3). If Plaintiffs do
file a second Rule 56(d) motion, the court will set a
revised deadline for the motion for summary judgment
based on its ruling on Plaintiffs' motion.
3. The court strikes Plaintiffs' motion for class
certification without prejudice to Plaintiffs re-filing
their motion after the court decides Microsoft's motion
for summary judgment. Because the motion for class
certification has been stricken, the court denies
Microsoft's motion to supplement the class certification
record as moot; and
4. The court grants Plaintiffs' counsel's request to waive
the requirement set forth in Local Rules W.D. Wash. LCR
83.1(d)(2) that local counsel sign all motions and other
documents filed with this court. The court reminds
counsel, however, that local counsel must be prepared to
handle this matter in the event pro hac vice counsel are
unable to be present on any date scheduled by the court.
Microsoft is an American multinational technology corporation which
produces computer software, consumer electronics, personal
computers, and related services.
A copy of the Court's order dated Feb. 8, 2021 is available from
PacerMonitor.com at https://bit.ly/3sKep74 at no extra charge.[CC]
MONDELEZ INTERNATIONAL: Faces Suit Over Wheat Markets Manipulation
-------------------------------------------------------------------
Mondelez International, Inc. disclosed in its Form 10-K Report for
the fiscal year ended December 31, 2021, filed with the Securities
and Exchange Commission on February 4, 2022, that it is still
facing a class action in the District Court with regards to
allegations of wheat markets manipulation. Said court granted
plaintiffs' request to certify a class on January 3, 2020.
Several class action complaints were filed against Kraft Foods
Group and Mondelēz Global in the U.S. District Court for the
Northern District of Illinois by investors in wheat futures and
options on behalf of themselves and others similarly situated. Said
complaint alleges that Kraft Foods Group and Mondelēz Global
manipulated or attempted to manipulate the wheat markets during the
fall of 2011, violated position limit levels for wheat futures and
engaged in non-competitive trades by trading both sides of
exchange-for-physical Chicago Board of Trade wheat contracts.
Plaintiffs are seeking monetary damages, interest and unjust
enrichment, costs and fees, and injunctive, declaratory and other
unspecified relief. In June 2015, these suits were consolidated in
the District Court.
Mondelēz International, Inc. makes and sells primarily snacks and
is based in Illinois.
NATIONS LENDING: Fitzhenry Must File Class Cert. Bid by July 26
---------------------------------------------------------------
In the class action lawsuit captioned as Mark Fitzhenry v. Nations
Lending Corporation, Case No. 2:21-cv-04043-RMG (D.S.C.), the Hon.
Judge Richard Mark Gergel entered an order that a motion for class
certification should be filed by July 26, 2022.
The July 26, 2022 class certification bid deadline is added to the
schedule already established in this case by the Court's Conference
and Scheduling Order of January 4, 2022.
Nations Lending Corporation was founded in 2003. The Company's line
of business includes originating mortgage loans, selling mortgage
loans to permanent investors, and servicing loans.
A copy of the Court's order dated Feb. 8, 2021 is available from
PacerMonitor.com at https://bit.ly/3rLLYpN at no extra charge.[CC]
NATIXIS INVESTMENT: Scheduling Order Entered in Waldner Suit
------------------------------------------------------------
In the class action lawsuit captioned as Brian Waldner,
individually and as the representative of a class of similarly
situated persons, and on behalf of The 401(k) Savings and
Retirement Plan, v. Natixis Investment Managers, L.P., et al., Case
No. 1:21-cv-10273-LTS (D. Mass.), the Hon. Judge Leo T. Sorokin
entered an order:
1. Initial disclosures required Feb. 16, 2022
by Fed. R. Civ. P. 26(a)(1)
and by this Court's Notice
of Scheduling Conference must
be completed by:
2. Amendments to Pleadings: May 2, 2022
3. Class Certification:
-- Motions for class Sept. 26, 2022
certification must be
filed by:
-- Opposition due: Oct. 26, 2022
-- Reply due: Nov. 16, 2022
4. Fact Discovery:
a. All requests for production Dec. 20, 2022
of documents and
interrogatories must be
served by:
b. All requests for admission Dec. 20, 2022
must be served by:
c. All depositions, other than Jan. 20, 2023
expert depositions, must be
completed by:
d. Final Fact Discovery Deadline:
All discovery, other than expert Jan. 20, 2023
discovery, must be completed by:
5. Status conference will be held on: Jan. 23, 2023
6. Expert Discovery
a. Trial experts and the information
contemplated by Fed. R. Civ. P.
26(a)(2) must be disclosed by the
following dates:
-- Plaintiff's Expert Reports: Feb. 17, 2023
-- Defendants' Expert Reports: March 15, 2023
-- Plaintiff's Reply Reports: April 10, 2023
-- Defendants' Surrebuttal Reports: May 5, 2023
b. All trial experts must be deposed June 2, 2023
by:
7. Dispositive Motions:
a. Dispositive motions, such as June 30, 2023
motions for summary judgment or
partial summary judgment and
motions for judgment on the
pleadings, must be filed by:
b. Opposition due: July 28, 2023
c. Reply due: Aug. 18, 2023
8. Pretrial Motions:
a. Motions in Limine and Daubert Sept. 8, 2023
motions must be filed by:
b. Opposition due: Oct. 6, 2023
c. Reply due: Oct. 20, 2023
A copy of the Court's order dated Feb. 8, 2021 is available from
PacerMonitor.com at https://bit.ly/3rLzZIT at no extra charge.[CC]
NAVISTAR INT'L: Bid to Modify Consent Decree in Shy Suit Granted
----------------------------------------------------------------
In the case, ART SHY, et al., Plaintiffs v. NAVISTAR INTERNATIONAL
CORPORATION, et al., Defendants, Case No. 3:92-CV-00333 (S.D.
Ohio), Judge Walter H. Rice of the U.S. District Court for the
Southern District of Ohio, Western Division, Dayton, granted
Navistar International Corp. and Navistar, Inc.'s Unopposed Motion
to Further Modify Consent Decree.
The additional requested modifications to the 1993 Consent Decree
as proposed in Exhibit A to the Memorandum are approved once, and
only if, the Court finally approves the Class Action Settlement
Agreement.
A full-text copy of the Court's Feb. 8, 2022 Order is available at
https://tinyurl.com/3n7ykksr from Leagle.com.
NEW YORK, NY: Brown Bid for TRO Tossed w/o Prejudice
----------------------------------------------------
In the class action lawsuit captioned as SUE BROWN, ET AL., v. CITY
OF NEW YORK, ET AL., Case No. 1:21-cv-10492-LGS (S.D.N.Y.), the
Hon. Judge Lorna G. Schofield entered an order:
1. denying without prejudice Plaintiffs' motion for a
temporary restraining order and for a preliminary
injunction;
2. granting the parties' joint request for a stay of
discovery pending the outcome of Defendants' anticipated
motions to dismiss;
3. denying without prejudice the Plaintiffs' request for
leave to file a motion for class certification at this
time;
4. granting the Plaintiffs' request for leave to file an
amended complaint, where the Plaintiffs shall file an
amended complaint by March 25, 2022; and
5. directing the Defendants to file their motions to dismiss
by April 22, 2022.
A copy of the Court's order dated Feb. 9, 2021 is available from
PacerMonitor.com at https://bit.ly/3rRFjL0 at no extra charge.[CC]
NEW YORK, NY: Case Management Conference Set for April 5
--------------------------------------------------------
In the class action lawsuit captioned as CALVIN REED v. THE CITY OF
NEW YORK, et al., Case No. 1:20-cv-08352-JPC-BCM (S.D.N.Y.), the
Hon. Judge Barbara Moses entered an order scheduling case
management conference.
Judge Barbara Moses ordered that a conference in accordance with
Fed. R. Civ. P. 16 will be held on April 5, 2022, at 10:00 a.m., in
Courtroom 20A of the Daniel Patrick Moynihan United States
Courthouse, 500 Pearl Street, New York.
At the conference, the parties must be prepared to discuss the
subjects set forth in Fed. R. Civ. P. 16(b) and (c). It is further
ordered that each party confer with all other parties to make sure
that all parties, or their attorneys, have a copy of this Order and
can attend the conference. If any party needs to change the date of
the conference, that party must make the request, by letter, as
soon as the need for a different date is known, Judge Moses adds.
A copy of the Court's order dated Feb. 9, 2021 is available from
PacerMonitor.com at https://bit.ly/368vu2F at no extra charge.[CC]
NEWS CORP: Faces Antitrust Suits in New York
--------------------------------------------
News Corporation disclosed in its 10-Q Report for the quarterly
period ended December 31, 2021, filed with the Securities and
Exchange Commission on February 4, 2022, that plaintiffs opposed
defendants' motion to dismiss the class action complaints.
Beginning in February 2021, a number of purported class action
complaints have been filed in the N.Y. District Court against
Amazon.com, Inc. and certain publishers, including the company's
subsidiary, HarperCollins Publishers, LLC, alleging violations of
antitrust and competition laws. The complaints seek treble damages,
injunctive relief and attorneys' fees and costs. In September 2021,
Amazon and HarperCollins filed motions to dismiss the complaints,
which the plaintiffs have opposed.
News Corporation is a diversified media and information services
company based in New York.
NOVARTIS INC: Faces Several Class Suits Over Carcinogen in Products
-------------------------------------------------------------------
Novartis Inc. disclosed in its Form 20-F Report for the fiscal year
ended December 31, 2021, filed with the Securities and Exchange
Commission on February 2, 2022, that it is currently facing class
action cases alleging injury from carcinogenic impurities found in
its products.
Since 2018, claims have been brought against Sandoz and other
pharmaceutical companies alleging injury from carcinogenic
impurities found in valsartan and valsartan/HCT film-coated tablets
and/or losartan marketed or manufactured by Sandoz.
These claims include several putative class actions in Canada.
Claims have also been brought alleging injury from carcinogenic
impurities in ranitidine-containing medicines. These claims also
include several putative class actions in Canada and a
multidistrict litigation in Florida.
Novartis Inc. is into pharmaceutical preparations based in Basel,
Switzerland.
NOVARTIS INC: Generic Med Price-Fixing Suits Consolidated
----------------------------------------------------------
Novartis Inc. disclosed in its Form 20-F Annual Report for the
fiscal year ended December 31, 2021, filed with the Securities and
Exchange Commission on February 2, 2022, that class action lawsuits
have been consolidated for pretrial purposes in the United States
District Court for the Eastern District of Pennsylvania.
Since the third quarter of 2016, Sandoz Inc. and Fougera
Pharmaceuticals Inc. have been sued alongside other generic
pharmaceutical companies in numerous individual and putative class
action complaints by direct and indirect private purchasers and by
54 US states and territories, represented by their respective
Attorneys General.
Plaintiffs claim that defendants, including Sandoz Inc., engaged in
price-fixing and market allocation of generic drugs in the United
States, and seek damages and injunctive relief. The litigation
includes complaints alleging product-specific conspiracies, as well
as complaints alleging the existence of an overarching industry
conspiracy, and assert claims for damages and penalties under
federal and state antitrust and consumer protection acts.
The cases have been consolidated for pretrial purposes in the
United States District Court for the Eastern District of
Pennsylvania, and the claims are being vigorously contested.
Novartis Inc. is into pharmaceutical preparations based in Basel,
Switzerland.
PAYLOCITY HOLDING: Face Biometrics Suit in Illinois Court
---------------------------------------------------------
Paylocity Holding Corporation disclosed in its Form 10-Q Report for
the quarterly period ended December 31, 2021, filed with the
Securities and Exchange Commission on February 4, 2022, that on
November 16, 2020, a potential class action complaint was filed
against the Company with the Circuit Court of Cook County alleging
that the company violated the Illinois Biometric Information
Privacy Act. The complaint seeks statutory damages, attorney's fees
and other costs.
Paylocity Holding Corporation is a cloud-based provider of payroll
and human capital management software solutions based in Illinois.
PDR NETWORK: Court Dismisses Carlton's 1st Amended Suit Under TCPA
------------------------------------------------------------------
In the case, CARLTON & HARRIS CHIROPRACTIC, INC., a West Virginia
corporation, individually and as a representative of a class of
similarly-situated persons, Plaintiff v. PDR NETWORK, LLC, PDR
DISTRIBUTION, LLC, PDR EQUITY, LLC, and JOHN DOES 1-10, Defendants,
Civil Action No. 3:15-14887 (S.D.W. Va.), Judge Robert C. Chambers
of the U.S. District Court for the Southern District of West
Virginia, Huntington Division, granted Defendants PDR Network, LLC,
PDR Distribution, LLC, and PDR Equity, LLC's Motion to Dismiss
Plaintiff's First Amended Class Action Complaint.
I. Background
The action arises from the Plaintiff's challenge to the Defendants'
practice of sending unsolicited facsimile advertisements. Plaintiff
Carlton is a West Virginia chiropractic office. The Defendants are
entities who profit from the sale of healthcare products and
services, such as prescription management programs and healthcare
messaging.
On Dec. 17, 2013, the Defendants transmitted an unsolicited fax to
the Plaintiff, which it received on a stand-alone fax machine. The
Plaintiff alleges that the Defendants violated the Telephone
Consumer Protection Act ("TCPA"), as amended by the Junk Fax
Protection Act ("JFPA"), when they sent the fax because it was an
unsolicited advertisement.
Specifically, the Plaintiff alleges that the Defendants: Are
for-profit entities providing health knowledge products and
services; are the leading providers of behavior-based prescription
management program and healthcare messaging; and, are creators of
the PDR eBook, the most recognized drug information reference
available in the nation. The Defendants "benefit or profit from the
sale of the 'healthcare products and services' referred to in the
fax." The fax is both an advertisement on its face and a pretext to
future advertising because the fax states that recipients will
continue to receive faxes about the Defendants' products and
services unless they opt out. The "Defendants receive money from
the pharmaceutical companies whose drugs are listed in the PDR,
and, on information and belief, the amount of money that the
Defendants receive from the drug companies turns on how many copies
of the 2014 PDR e-Book the Defendants distribute." They distribute
the eBook for free, in hope of future financial gain and to lead to
future sales of other goods and services.
On Sept. 30, 2016, the Court dismissed the Plaintiff's initial
Complaint in its entirety, determining that the fax was not an
"advertisement" within the meaning of the TCPA because it
"certainly offers a good to the Plaintiff, but neither the fax nor
PDR exhibit a commercial aim." It also noted that it was not bound
to defer to a 2006 Federal Communications Commission ("FCC") Order,
which interpreted the meaning of "unsolicited advertisement" under
the TCPA. The FCC Order states that "facsimile messages that
promote goods or services even at no cost are unsolicited
advertisements under the TCPA's definition." The Court found that
the TCPA's definition of unsolicited advertisement was
"unambiguous" and "clear and easy to apply," and therefore, the FCC
Order was not due "substantial deference."
On appeal to the Fourth Circuit, the Court's decision was vacated
and remanded. The Fourth Circuit held that the Hobbs Act's
jurisdictional provisions stripped the district court of the
ability to engage in a Chevron analysis of the 2006 FCC Order. It
went on to interpret the FCC Order and found that the "fax was an
advertisement under the plain meaning of the 2006 FCC Rule," and
the present Court therefore erred in finding the fax was not an
advertisement as a matter of law.
The Supreme Court granted review to answer: "Whether the Hobbs Act
required the district court in this case to accept the FCC's legal
interpretation of the Telephone Consumer Protection Act." After
argument, however, the Supreme Court determined that the extent to
which the 2006 FCC Rule binds the lower court may depend on the
resolution of two preliminary sets of questions: (1) what is the
legal nature of the 2006 FCC Order; and (2) did PDR have a "prior"
and "adequate" opportunity to seek judicial review of the Order.
When the Fourth Circuit revisited these issues on remand, it noted
that parties agreed that the relevant portions of the FCC Order are
interpretive; therefore, the district court was not bound to follow
it, which rendered the second question moot. The Fourth Circuit
remanded the case to the present Court "to consider what level of
deference the court should afford the 2006 FCC Rule and what the
proper meaning of 'unsolicited advertisement' is in light of that
deference."
II. Discussion
The TCPA prohibits the use of a fax machine to send "unsolicited
advertisements." To prevail on a TCPA claim, the plaintiff must
show the defendant (1) used a telephone facsimile machine to send
an (2) unsolicited (3) advertisement. The TCPA defines unsolicited
advertisement as "any material advertising the commercial
availability or quality of any property, goods, or services which
is transmitted to any person without that person's express
invitation or permission, in writing or otherwise."
In the case, the Defendants do not dispute the first two elements,
but argue that their fax offering a free good is not an
advertisement under the TCPA. The 2006 FCC Order says that
facsimile messages that promote goods or services, even at no cost,
are advertisements. The issue is what level of deference is due to
the FCC Order and, in light of that, whether the Plaintiff has
adequately alleged that the fax is an advertisement within the
meaning of the statute.
Judge Chambers finds that it is undisputed that the PDR eBook is
not for sale. Nor are the listed drugs about which the PDR eBook
provides information available for sale by these Defendants.
Therefore, the fax does not advertise the commercial availability
of any product to be sold by the Defendants. It could be argued
that the fax speaks to the quality of the free eBook, noting that
it is in a "convenient digital format" and has the "same trusted,
FDA-approved full prescribing information," but these statements
speak to the quality of a product that is not for sale. Thus, there
is no requisite commercial aspect to the statements. The fax is
purely informational. It sells nothing.
Finding that the FCC Order is not entitled to deference is not
necessarily fatal to the Plaintiff's Amended Complaint. Judge
Chambers must now examine whether the Plaintiff's new allegations
sufficiently allege that the fax in question falls within the remit
of the TCPA. Again, the TCPA defines an "unsolicited advertisement"
as "any material advertising the commercial availability or quality
of any property, goods, or services.
Judge Chambers holds that what the fax literally offers is a free
and informational eBook. Alleging an underlying and distant
commercial purpose does not change that. The fax remains unchanged
from the time of filing of the first Complaint. It does not offer
something for sale; thus, it does not constitute an advertisement
under the TCPA. Even with the benefit of guidance from the Fourth
Circuit, he cannot find that the unchanged fax now offers something
for sale where it clearly does not.
III. Conclusion
For the foregoing reasons, Judge Chambers finds that the FCC Order
is owed no deference and that the Plaintiff's allegations fail to
state a claim. Accordingly, he granted the Defendants' Motion to
Dismiss. As the Motion has been resolved, any request for oral
argument therein is denied as moot.
The Court directs the Clerk to send a copy of the Order to the
counsel of record and any unrepresented parties.
A full-text copy of the Court's Feb. 8, 2022 Memorandum Opinion &
Order is available at https://tinyurl.com/2p8eesa8 from
Leagle.com.
PINTEREST INC: Court Dismisses Securities Class Suit
----------------------------------------------------
Pinterest, Inc. disclosed in its Annual Report on Form 10-K for the
fiscal year ended December 31, 2021, filed with the Securities and
Exchange Commission on February 3, 2022, that on October 12, 2021,
judgment was entered on behalf of the company with regards to
alleged claims under Sections 10(b) and 20(a) of the Exchange Act.
On November 23, 2020, Pinterest and its Chief Executive Officer and
Chief Financial Officer were named as defendants in said securities
class action filed in the U.S. District Court for the Northern
District of California.
The lawsuit alleges that Pinterest made material false and
misleading public statements about its revenue and user growth in
2019 and sought damages, litigation costs with interest. On
September 23, 2021, the court granted Pinterest's motion to dismiss
plaintiff's complaint with leave to amend and plaintiff notified
the court on October 12, 2021 that they do not intend to file an
amended complaint. Said matter is no longer pending.
Pinterest, Inc. is a productivity tool company based in
California.
PITTSBURGH LOGISTICS: Conditional Cert. of Collective Class OK'd
----------------------------------------------------------------
In the class action lawsuit captioned as CHRISTIAN ALESIUS, BRENDAN
BEAULIEU, BRIAN STENSTROM, ROBERT WATERHOUSE, and NICK
CUSOLITO, individually and on behalf of all similarly situated
employees, v. PITTSBURGH LOGISTICS SYSTEMS, INC. d/b/a PLS
LOGISTICS SERVICES, Case No. 2:20-cv-01067-MJH (W.D. Pa.), the Hon.
Judge Marilyn J. Horan entered an order granting the Plaintiffs'
motion for conditional certification of a collective class and to
facilitate identification and notice to similarly situated
Employees is granted to the issue of conditional class
certification and deferred as to the issue of notice.
The Court orders a period of limited discovery as regards
employment and arbitration agreements between PLS Logistics and
potential opt-in PLS Logistics employees. Discovery as to the
employment and arbitration agreements, with employee identity
redacted, shall occur between Plaintiffs and Defendant, to be
completed by March 24, 2022.
The Plaintiffs' Brief on the issue of notice shall be filed by
April 14, 2022, and Defendant's Response shall be filed by April
28, 2022. A hearing on the issue of notice is scheduled for May 9,
2022 at 10:30 AM in a Video Conference.
The Plaintiffs Christian Alesius, Brendan Beauliu, Robert
Waterhouse, Nick Cusolito, and Matt Dickson, individually and on
behalf of others similarly situated, bring the present collective
action against Defendant Pittsburgh Logistics for overtime payment
as required by the Fair Labor Standards Act (FLSA), the
Pennsylvania Minimum Wage Act (PMWA), the Pennsylvania Wage Payment
and Collection Law (WPCL), and a state-law claim for unjust
enrichment.
The Plaintiffs request that the Court conditionally certify as a
class:
"all other Account Executive Trainees who were paid a salary
and were employed with Defendant within three years prior to
the filing of the Complaint.:
The Plaintiffs argue that they can satisfy their lenient burden of
identifying a common policy or practice alleged to violate the
FLSA, namely that the AETs were regularly required to work more
than 40 hours per week for which they were not paid overtime wages.
PLS Logistics argues that the Court should deny conditional
certification at this time because there has not yet been any
discovery completed in the case.
The Plaintiffs worked at PLS Logistics as Account Executive
Trainees. Their primary role was to identify and obtain new clients
and assist with providing support services for existing clients. In
their jobs as AETs, the Plaintiffs were required to identify
potential clients through internet searches and to contact those
leads in hopes of obtaining their business.
PLS Logistics is a logistics and transportation company with its
principal corporate office in Cranberry Township, Pennsylvania.
A copy of the Court's order dated Feb. 9, 2021 is available from
PacerMonitor.com at https://bit.ly/3HSTLrF at no extra charge.[CC]
PLACE FOR MOM: Abreu Files ADA Suit in S.D. New York
----------------------------------------------------
A class action lawsuit has been filed against A Place for Mom, Inc.
The case is styled as Luigi Abreu, individually, and on behalf of
all others similarly situated v. A Place for Mom, Inc., Case No.
1:22-cv-01326 (S.D.N.Y., Feb. 16, 2022).
The lawsuit is brought over alleged violation of the Americans with
Disabilities Act.
A Place for Mom -- http://www.aplaceformom.com/-- founded in 2000,
is a privately held, for-profit senior care referral service based
in Seattle, Washington.[BN]
The Plaintiff is represented by:
Edward Y. Kroub, Esq.
MIZRAHI & KROUB LLP
200 Vesey Street
New York, NY 10281
Phone: (212) 595-6200
Email: ekroub@mizrahikroub.com
POST HOLDINGS: Subsidiary Loses Summary Judgment Bid
----------------------------------------------------
Post Holdings, Inc. disclosed in its Form 10-Q Report for the
quarterly period ended December 31, 2021, filed with the Securities
and Exchange Commission on February 4, 2022, that defendants'
dismissal of claims for the second motion of summary judgment was
denied and the remaining opt-out plaintiffs have not yet been
assigned trial dates.
In late 2008 and early 2009, approximately 22 class action lawsuits
were filed in various federal courts against Michael Foods, Inc.
(MFI), a wholly-owned subsidiary of the company, and approximately
20 other defendants (producers of shell eggs and egg products and
egg industry organizations), alleging violations of federal and
state antitrust laws in connection with the production and sale of
shell eggs and egg products, and seeking unspecified damages. All
cases were transferred to the Eastern District of Pennsylvania for
coordinated and/or consolidated pretrial proceedings.
The cases involved three plaintiff groups: (i) a nationwide class
of direct purchasers of shell eggs; (ii) individual companies
(primarily large grocery chains and food companies that purchase
considerable quantities of eggs) that opted out of various
settlements and filed their own complaints related to their
purchases of shell eggs and egg products (the "opt-out
plaintiffs"); and (iii) indirect purchasers of shell eggs.
To date, MFI has resolved the following claims, including all class
claims: (i) in December 2016, MFI settled all claims asserted
against it by the direct purchaser class for a payment of $75.0,
which was approved by the district court in December 2017; (ii) in
January 2017, MFI settled all claims asserted against it by opt-out
plaintiffs related to shell egg purchases on confidential terms;
(iii) in June 2018, MFI settled all claims asserted against it by
indirect purchaser plaintiffs on confidential terms; and (iv)
between June 2019 and September 2019, MFI individually settled on
confidential terms egg product opt-out claims asserted against it
by four separate opt-out plaintiffs. MFI has at all times denied
liability in this matter, and no settlement contains any admission
of liability by MFI.
MFI remains a defendant only with respect to claims that seek
damages based on purchases of egg products by three opt-out
plaintiffs. The district court had granted summary judgment
precluding any claims for egg products purchases by such opt-out
plaintiffs, but the Third Circuit Court of Appeals reversed and
remanded these claims for further pretrial proceedings. Defendants
filed a second motion for summary judgment seeking dismissal of the
claims, which was denied in June 2019. The remaining opt-out
plaintiffs have not yet been assigned trial dates.
Post Holdings, Inc. is a consumer packaged goods holding company
based in Missouri.
QUALCOMM INC: 9th Cir. Affirms Dismissal of Mistry Securities Suit
------------------------------------------------------------------
In the case, GATUBHAI MISTRY, Lead Plaintiff, et al.,
Plaintiffs-Appellants v. QUALCOMM, INC., et al.,
Defendants-Appellees, Case No. 20-56178 (9th Cir.), the U.S. Court
of Appeals for the Ninth Circuit affirmed the district court's
dismissal of the Plaintiffs-Appellants' second amended complaint.
Court-appointed lead plaintiff, Mistry and other Qualcomm
investors, appeal the district court's dismissal under Federal Rule
of Civil Procedure 12(b)(6) of their second amended complaint (SAC)
alleging violations of Section 10(b) of the Securities Exchange Act
of 1934 and Securities and Exchange Commission Rule 10b-5.
The action involves an unsuccessful bid by a Singapore chipmaker,
Broadcom, to acquire Qualcomm, a United States chipmaker. The
Investors generally allege that false or misleading statements or
omissions by Qualcomm in connection with an unsuccessful hostile
take-over bid -- a deal that was eventually blocked by regulatory
action and an executive order from then-President Donald Trump --
resulted in a drop in Qualcomm's stock share price.
Broadcom offered to acquire Qualcomm in November 2017, for a share
price that was approximately 30% over Qualcomm's share price at the
time. Although Qualcomm's board rejected the offer, Broadcom
persisted in efforts to acquire the company. Broadcom launched a
proxy fight, writing to shareholders and urging them to vote to
replace Qualcomm's board of directors. The Investors contend that
Qualcomm engaged in a secret scheme to interfere with Broadcom's
attempted acquisition by lobbying lawmakers and complaining to the
Committee on Foreign Investment in the United States (CFIUS), a
federal interagency committee that evaluates the national security
implications of foreign investments in U.S. companies, while
outwardly assuring shareholders and potential investors that it was
pursuing the merger in good faith.
On appeal, the Investors argue that the district court erred in
dismissing their securities fraud class action for failure to
adequately plead falsity, scienter, and loss causation.
The Ninth Circuit finds no error in the district court's finding
that the Investors failed to allege falsity in their SAC. Among
other things, the Investors allege facts in their SAC showing that
Qualcomm made it clear from the outset that its directors and
officers opposed the deal. The Ninth Circuit also rejects the
Investors' argument that, despite these statements, Qualcomm
downplayed the risk of regulatory oversight by CFIUS. It says,
negotiating in good faith is not necessarily incompatible with
having sincere regulatory, antitrust, and national security
concerns.
The Ninth Circuit also finds no error in the district court's
finding that the Investors failed to plead scienter. The Investors
have not alleged facts from which a reasonable person could draw
equally plausible opposing inferences of Qualcomm's intent.
The Ninth Circuit further finds no error in the district court's
conclusion that the Investors failed to adequately plead loss
causation. The Investors have not alleged a causal connection
between the allegedly wrongful statements and omissions in late
2017 and early 2018 and the stock-price drop.
A full-text copy of the Court's Feb. 8, 2022 Memorandum is
available at https://tinyurl.com/yckd7bdm from Leagle.com.
QUALCOMM INC: Bid for Judgment on Class Suits Pending
------------------------------------------------------
Qualcomm Inc. disclosed in its Quarterly Report on Form 10-Q for
the quarterly period ended December 26, 2021, filed with the
Securities and Exchange Commission on February 2, 2022, that it
filed a motion for judgment and the hearing was held on February 2,
2022. No details on the hearing was disclosed yet.
On January 23, 2017 and January 26, 2017, securities class action
complaints were filed by purported stockholders of the company in
the United States District Court for the Southern District of
California against them and certain of their former officers and
directors. The complaints alleged, among other things, that the
company violated Sections 10(b) and 20(a) of the Securities
Exchange Act of 1934, as amended, and Rule 10b-5 thereunder, by
making false and misleading statements and omissions of material
fact in connection with certain allegations that they are or were
engaged in anticompetitive conduct.
The complaints sought unspecified damages, interest, fees and
costs. On May 4, 2017, the court consolidated the two actions. On
July 3, 2017, the plaintiffs filed a consolidated amended complaint
asserting the same basic theories of liability and requesting the
same basic relief. On September 1, 2017, the company filed a motion
to dismiss the consolidated amended complaint, and on March 18,
2019, the court denied the motion. On January 15, 2020, the company
filed a motion for judgment on the pleadings.
Qualcomm Inc. is into radio and TV broadcasting and communications
equipment based in California.
QUALCOMM INC: Dismissal of Stockholders' Suit Under Appeal
----------------------------------------------------------
Qualcomm Inc. disclosed in its Form 10-Q Report for the quarterly
period ended December 26, 2021, filed with the Securities and
Exchange Commission on February 2, 2022, that a notice of appeal
was filed with the US Court of Appeals for the Ninth Circuit and
has not yet issued a ruling.
On June 8, 2018 and June 26, 2018, securities class action
complaints were filed by purported stockholders of the company in
the United States District Court for the Southern District of
California against the company and two of their then current
officers. The complaints alleged, among other things, that the
company violated Sections 10(b) and 20(a) of the Securities
Exchange Act of 1934, as amended, and Rule 10b-5 thereunder, by
failing to disclose that they had submitted a notice to the
Committee on Foreign Investment in the United States in January
2018.
The complaints sought unspecified damages, interest, fees and
costs. On March 18, 2019, the plaintiffs filed a consolidated
complaint asserting the same basic theories of liability and
requesting the same basic relief. On May 10, 2019, the company
filed a motion to dismiss the consolidated complaint, and on March
10, 2020, the court granted the motion. On May 11, 2020, the
plaintiffs filed a second amended complaint, and on October 8,
2020, the court granted the company's motion to dismiss the case
with prejudice. On November 7, 2020, the plaintiffs filed a notice
of appeal with the United States Court of Appeals for the Ninth
Circuit and a hearing on the appeal was held on November 16, 2021.
The Ninth Circuit has not yet issued a ruling.
Qualcomm Inc. is into radio and TV broadcasting and communications
equipment based in California.
REMIK HOLDINGS: New York App. Div. Certifies Class in Cupka Suit
----------------------------------------------------------------
In the case, DOROTHY CUPKA, ET AL., Plaintiffs-Appellants v. REMIK
HOLDINGS LLC, Defendant-Respondent, Index No. 159054/18, Appeal No.
15250-15250A, Case Nos. 2021-01865, 2021-01868 (N.Y. App. Div.),
the Appellate Division of the Supreme Court of New York, First
Department, issued an Order:
1. unanimously modifying the Order of the Supreme Court, New
York County (Lynn R. Kotler, J.), entered April 30, 2020,
which denied the Plaintiffs' motion for class certification
and other relief, to grant the Plaintiffs' request to amend
the caption to correct the spelling of a plaintiff's name,
and otherwise affirming, without costs; and
2. unanimously reversing the Order of the Supreme Court, New
York County (Lynn R. Kotler, J.), entered Dec. 9, 2020,
which denied the Plaintiffs' motion for leave to renew
their class certification motion, without costs, and
granting the motion for class action certification.
The rent overcharge action brought by residential tenants is
premised on allegations that the Defendant-Landlord unlawfully
deregulated apartments while receiving J-51 benefits. The
Plaintiffs moved for class certification and other relief,
submitting their amended complaint, which was verified by two
plaintiffs and thus, should have been considered as an affidavit
from those plaintiffs. The Plaintiffs also submitted the
Defendants' tax bills from the New York City Department of Finance
showing that the Defendants received J-51 benefits between 2014 and
2018 and that only 8 of 100 apartments were registered as
rent-regulated in 2017 and 2018. The Plaintiffs did not submit
separate affidavits until their renewal motion.
The Appellate Division holds that class certification was
improperly denied. It explains that the determination of whether
the Plaintiffs have a cause that may be asserted as a class action
turns on the application of CPLR 901. That section provides that
"one or more members of a class may sue or be sued as
representative parties on behalf of all" where five factors --
sometimes characterized "as numerosity, commonality, typicality,
adequacy of representation and superiority" -- are met. The party
seeking class certification has the burden of establishing the
prerequisites of CPLR 901(a) and thus establishing entitlement to
certification.
The Plaintiffs met their burden of demonstrating the prerequisites
for class action certification under CPLR 901 and 902. Contrary to
the motion court's determination, the Appellate Division finds that
the Plaintiffs established numerosity and typicality in their
initial motion for class certification. The allegations in the
amended complaint taken with the DOF tax bills showed that by June
2017, only 8 of 100 apartments were registered as rent-stabilized.
In a similar J-51 rent overcharge action (Montera v KMR Amsterdam
LLC, 193 A.D.3d 102, 109 [1st Dept 2021]), the Appellate Court held
that similar bills were sufficient to establish numerosity, i.e.,
the number of deregulated units. As to typicality, the predominant
legal question involves one that applies to the entire class --
whether the Defendant unlawfully deregulated rent-stabilized
apartments while receiving J-51 real estate tax abatement
benefits.
Finally, while the Plaintiff did not submit their own affidavits
with their initial motion for certification, the Ninth Circuit
holds that the Plaintiffs did submit such affidavits in support of
their renewal motion, which indicate that they possess an "adequate
understanding of the case" to enable them to serve as class
representatives. The Plaintiffs were not precluded from making
successive motions for class certification, particularly where the
motion was intended to rectify the deficiencies in the initial
motion.
The Plaintiffs' request to amend the caption to correct the
spelling of a plaintiff's name should have been granted as the
Defendant did not oppose that request and there was no apparent
prejudice to it.
A full-text copy of the Court's Feb. 8, 2022 Order is available at
https://tinyurl.com/yckjcdja from Leagle.com.
Grimble & LoGuidice, LLP, in New York City (Robert Grimble --
INFO@GRIMBLELAW.COM -- of counsel), for the Appellants.
Warshaw Burstein LLP, in New York City (Maxwell Breed --
mbreed@wbny.com -- of counsel), for the Respondent.
SARMA COLLECTIONS: Hartley FDCPA Suit Removed to S.D. Florida
-------------------------------------------------------------
The case captioned as Dale Hartley, individually and on behalf of
all others similarly situated v. Sarma Collections, Inc., Case No.
CACE-22-000755 was removed from the 17th Judicial Circuit in and
for Broward County, F, to the U.S. District Court for Southern
District of Florida on Feb. 14, 2022.
The District Court Clerk assigned Case No. 0:22-cv-60336-WPD to the
proceeding.
The lawsuit is brought over alleged violation of the Fair Debt
Collection Practices Act.
Sarma Collections, Inc. (SCI) -- https://sarma.com/ -- is a
nationally licensed debt collection agency located in San Antonio,
Texas.[BN]
The Plaintiff is represented by:
Jibrael Jarallah Said Hindi, Esq.
Thomas John Patti, III, Esq.
THE LAW OFFICES OF JIBRAEL S. HINDI
110 SE 6th St., 17th Floor
Fort Lauderdale, FL 33301
Phone: (954) 907-1136
Email: jibrael@jibraellaw.com
tom@jibraellaw.com
The Defendant is represented by:
Lauren Marshall Burnette, Esq.
Maureen B. Walsh, Esq.
John Michael Marees, II, Esq.
MESSER STRICKLER BURNETTE, LTD.
12276 San Jose Blvd., Suite 718
Jacksonville, FL 32223
Phone: (904) 527-1172
Fax: (904) 683-7353
Email: lburnette@messerstrickler.com
mwalsh@messerstrickler.com
jmarees@messerstrickler.com
SMITHFIELD FOODS: Bid for Conditional Cert. Tossed in Smith Suit
----------------------------------------------------------------
In the class action lawsuit captioned as Jessica Smith, et al., on
behald of herself and all other similarly situated, v. Smithfield
Foods, Inc., et al., Case No. 2:21-cv-00194-RBS-DEM (E.D. Va.), the
Hon. Judge Rebecca Smith entered an order denying the Plaintiffs'
motion for conditional certification, expedited Opt-in discovery,
and Court-Supervised notice to potential opt-in Plaintiffs.
On October 13, 2021, this matter was referred to United States
Magistrate Judge Douglas E. Miller pursuant to the provisions of 28
U.S.C. section 636(b)(1)(B) and Federal Rule of Civil Procedure
72(b), to conduct hearings, including evidentiary hearings, if
necessary, and to submit to the undersigned district judge proposed
findings of fact, if applicable, and recommendations for the
disposition of the Motion.
The Magistrate Judge filed the Report and Recommendation ("R&R") on
December 21, 2021. The R&R "concludes that the Plaintiffs have
failed to meet their burden to establish that the nationwide class
they describe should be conditionally certified," and recommends
denying Plaintiffs' Motion. The Plaintiffs filed Objections to the
R&R on January 4, 2022, and the Defendants filed a Response to the
Objections on January 18, 2022.
The court, having reviewed the record in its entirety and having
examined the Objections and made de novo findings with respect
thereto, does adopt and approve in full the findings and
recommendations set forth in the thorough and well-reasoned R&R of
the United States Magistrate Judge, filed on December 21, 2021.
A copy of the Court's order dated Feb. 9, 2021 is available from
PacerMonitor.com at https://bit.ly/3rN1Ok8 at no extra charge.[CC]
SNAP INC: Faces Securities Suit Over Misleading Statements
----------------------------------------------------------
Snap Inc. disclosed in its Form 10-K Annual Report for the fiscal
year ended December 31, 2021, filed with the Securities and
Exchange Commission on February 4, 2022, that a class action
lawsuit was filed against the company alleging that the company and
certain of its officers made false or misleading statements and
omissions regarding it operations in its corporate disclosure to
its investors.
On November 11, 2021, the company, and certain of their officers,
were named as defendants in a federal securities class action
lawsuit filed in the United States District Court Central District
of California. The lawsuit was purportedly brought on behalf of
purchasers of Class A common stock. The lawsuit alleges that the
company and certain of its officers made false or misleading
statements and omissions concerning the impact that Apple's App
Tracking Transparency framework would have on the business.
Defendants seek monetary damages and other relief.
Snap Inc. is a camera company based in California.
SOCLEAN INC: Albright Suit Transferred to W.D. Pennsylvania
-----------------------------------------------------------
The case styled as Troy Albright, individually and on behalf of all
others similarly situated v. SoClean, Inc., Case No. 2:21-cv-02494
was transferred from the U.S. District Court for the District of
Kansas, to the U.S. District Court for the Western District of
Pennsylvania on Feb. 14, 2022.
The District Court Clerk assigned Case No. 2:22-cv-00280-JFC to the
proceeding.
The nature of suit is stated as Other Contract.
SoClean, Inc. -- https://www.soclean.com/ -- manufactures cleaning
devices. The Company produces automated continuous positive airway
pressure (CPAP) cleaners and sanitizers which improves health
outcomes and quality of life for those suffering from obstructive
sleep apnea and other sleeping disorders.[BN]
The Plaintiff is represented by:
Andrew J. Nantz, Esq.
Todd M. Johnson, Esq.
Brett Votava, Esq.
VOTAVA NANTZ & JOHNSON, LLC
9237 Ward Parkway, Suite 100
Kansas City, MO 64114
Phone: (816) 895-8800
Fax: (816) 895-8801
Email: andrew@vnjlaw.com
- and -
Edward D. Robertson, III, Esq.
Michael C. Rader, Esq.
BARTIMUS, FRICKLETON, ROBERTSON, AND RADER, PC - LEAWOOD
4000 W. 114th Street, Suite 310
Leawood, KS 66211
Phone: (913) 266-2300
Fax: (913) 266-2366
Email: krobertson@bflawfirm.com
mrader@bflawfirm.com
- and -
James P. Frickleton, Esq.
BARTIMUS FRICKLETON ROBERTSON & GORNY
11150 Overbrook Road, Suite 200
Leawood, KS 66211
Phone: (913) 266-2300
Fax: (913) 266-2366
Email: jimf@bflawfirm.com
The Defendant is represented by:
Cassandra R. Valentine, Esq.
James D. Lawrence, Esq.
W. Perry Brandt, Esq.
BRYAN CAVE LEIGHTON PAISNER, LLP - KCMO
1200 Main Street, Suite 3800
Kansas City, MO 64105
Phone: (816) 374-3280
Fax: (816) 855-3280
Email: cassie.valentine@bclplaw.com
jdlawrence@bclplaw.com
perry.brandt@bclplaw.com
SOCLEAN INC: Carlile Suit Transferred to W.D. Pennsylvania
----------------------------------------------------------
The case styled as Jerry Carlile, individually and on behalf of all
others similarly situated v. SoClean, Inc., Case No. 4:21-cv-03562
was transferred from the U.S. District Court for the Southern
District of Texas, to the U.S. District Court for the Western
District of Pennsylvania on Feb. 14, 2022.
The District Court Clerk assigned Case No. 2:22-cv-00279-JFC to the
proceeding.
The nature of suit is stated as Other Contract.
SoClean, Inc. -- https://www.soclean.com/ -- manufactures cleaning
devices. The Company produces automated continuous positive airway
pressure (CPAP) cleaners and sanitizers which improves health
outcomes and quality of life for those suffering from obstructive
sleep apnea and other sleeping disorders.[BN]
The Plaintiff is represented by:
Andrew J. Nantz, Esq.
Todd M. Johnson, Esq.
Brett Votava, Esq.
VOTAVA NANTZ & JOHNSON, LLC
9237 Ward Parkway, Suite 100
Kansas City, MO 64114
Phone: (816) 895-8800
Fax: (816) 895-8801
Email: andrew@vnjlaw.com
- and -
Adam Q Voyles, Esq.
LUBEL VOYLES LLP
675 Bering Dr., Ste. 850
Houston, TX 77057
Phone: (713) 284-5200
Fax: (713) 284-5250
Email: adam@lubelvoyles.com
The Defendant is represented by:
Daniel Glenn Durell, Esq.
LOCKE LORD LLP
600 Congress Ave, Ste. 2200
Austin, TX 78701
Phone: (512) 305-4700
Email: daniel.durell@lockelord.com
SOCLEAN INC: Coley Suit Transferred to W.D. Pennsylvania
--------------------------------------------------------
The case styled as Richard M. Coley, on behalf of himself and all
others similarly situated v. SoClean, Inc., Case No. 1:21-cv-00472
was transferred from the U.S. District Court for the Southern
District of Alabama, to the U.S. District Court for the Western
District of Pennsylvania on Feb. 14, 2022.
The District Court Clerk assigned Case No. 2:22-cv-00275-JFC to the
proceeding.
The nature of suit is stated as Other Contract.
SoClean, Inc. -- https://www.soclean.com/ -- manufactures cleaning
devices. The Company produces automated continuous positive airway
pressure (CPAP) cleaners and sanitizers which improves health
outcomes and quality of life for those suffering from obstructive
sleep apnea and other sleeping disorders.[BN]
The Plaintiff is represented by:
Jubal L. Hamil, Esq.
DEAKLE, SHOLTIS & HAMIL, LLC
P.O. Box 1031
Mobile, AL 36633
Phone: (251) 432-6020
Fax: (251) 471-4497
Email: jhamil@dshfirm.com
The Defendant is represented by:
Jason Brent Tompkins, Esq.
BALCH & BINGHAM
1901 Sixth Avenue North, Suite 1500
Birmingham, AL 35203
Phone: (205) 226-8743
Fax: (205) 488-5721
Email: jtompkins@balch.com
SOCLEAN INC: Pomianek Suit Transferred to W.D. Pennsylvania
-----------------------------------------------------------
The case styled as Matthew Pomianek, individually and on behalf of
all others similarly situated v. SoClean, Inc., Case No.
4:21-cv-00783 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 Feb. 14, 2022.
The District Court Clerk assigned Case No. 2:22-cv-00282-JFC to the
proceeding.
The nature of suit is stated as Other Contract.
SoClean, Inc. -- https://www.soclean.com/ -- manufactures cleaning
devices. The Company produces automated continuous positive airway
pressure (CPAP) cleaners and sanitizers which improves health
outcomes and quality of life for those suffering from obstructive
sleep apnea and other sleeping disorders.[BN]
The Plaintiff is represented by:
Andrew J. Nantz, Esq.
Brett Votava, Esq.
Todd M. Johnson, Esq.
VOTAVA NANTZ & JOHNSON, LLC
9237 Ward Parkway, Suite 100
Kansas City, MO 64114
Phone: (816) 895-8800
Fax: (816) 895-8801
Email: andrew@vnjlaw.com
- and -
Edward D. Robertson, Jr., Esq.
BARTIMUS FRICKLETON ROBERTSON & GORNY
715 Swifts Highway
Jefferson City, MO 65109
Phone: (573) 659-4454
Fax: (573) 659-4460
Email: chiprob@earthlink.net
- and -
Michael C. Rader, Esq.
BARTIMUS, FRICKLETON, ROBERTSON, AND RADER, PC - LEAWOOD
4000 W. 114th Street, Suite 310
Leawood, KS 66211
Phone: (913) 266-2300
Fax: (913) 266-2366
Email: krobertson@bflawfirm.com
mrader@bflawfirm.com
- and -
James P. Frickleton, Esq.
BARTIMUS FRICKLETON ROBERTSON & GORNY
11150 Overbrook Road, Suite 200
Leawood, KS 66211
Phone: (913) 266-2300
Fax: (913) 266-2366
Email: jimf@bflawfirm.com
The Defendant is represented by:
James D. Lawrence, Esq.
BRYAN CAVE LEIGHTON PAISNER, LLP - KCMO
1200 Main Street, Suite 3800
Kansas City, MO 64105
Phone: (816) 374-3280
Fax: (816) 855-3280
Email: jdlawrence@bclplaw.com
SPECTRUM BRANDS: Suit vs Subsidiary Settled
-------------------------------------------
Spectrum Brands Holdings, Inc. disclosed in its 10-Q Report for the
quarterly period ended January 2, 2022, filed with the Securities
and Exchange Commission on February 4, 2022, that Spectrum Brands
Holdings, Inc. has reached an agreement in principle, subject to
final documentation and approval of the Court, to settle the claims
of the HRG Group Inc. (a holding company with shares of Spectrum
Brands as its principal holding and predecessor to Spectrum) class
in October 2021.
On July 12, 2019, an amended consolidated class action complaint
filed earlier in 2018 was filed in the United States District Court
for the Western District of Wisconsin by the Public School
Teachers' Pension & Retirement Fund of Chicago and the Cambridge
Retirement against Spectrum.
The complaint alleges that the defendants violated the Securities
Exchange Act of 1934. The amended complaint added HRG Group, Inc.
as a defendant and asserted additional claims against the Company
on behalf of a purported class of HRG shareholders.
The class period of the consolidated amended complaint is from
January 26, 2017 to November 19, 2018, and the plaintiffs seek an
unspecified amount of compensatory damages, interest, attorneys'
and expert fees and costs.
During the year ended September 30, 2020, the company reached a
proposed settlement. In February 2021, the Court declined to
approve the proposed settlement without prejudice because the Court
determined that as a procedural matter the plaintiff's counsel had
not taken the appropriate actions to be appointed to represent the
purported class of HRG shareholders.
The court subsequently appointed separate counsel to represent the
HRG shareholder class. In August 2021, the company reached an
agreement in principle, subject to final documentation and approval
of the Court, to settle the claims of the Spectrum legacy class,
the cost of which has been defrayed by third-party insurance.
Spectrum Brands Holdings is a consumer products company based in
Wisconsin.
SUPER MICRO COMPUTER: Securities Suit Ongoing in N.D. Cal.
----------------------------------------------------------
Super Micro Computer, Inc. disclosed in its Form 10-Q Report for
the quarterly period ended December 31, 2021, filed with the
Securities and Exchange Commission on February 4, 2022, that the
court has calendared a hearing on class certification for April 21,
2022 after plaintiffs' claims under Sections 10(b) and 20 of the
Exchange Act were dismissed with prejudice against the company's
former head of Investor Relations, Perry Hayes.
Plaintiffs' Section 10(b) claim, but not the Section 20 claim, was
likewise dismissed as to Wally Liaw, a founder, former director,
and former SVP of International Sales. Said court denied the
motions to dismiss the Section 10(b) and Section 20 claims against
the company, Charles Liang, and Howard Hideshima, the company's
former CFO. Discovery has commenced.
On February 8, 2018, two putative class action complaints were
filed against the company, the company's Chief Executive Officer,
and the company's former Chief Financial Officer in the U.S.
District Court for the Northern District of California, Hessefort
v. Super Micro Computer, Inc., et al. (Case No. 18-cv-00838) and
United Union of Roofers v. Super Micro Computer, Inc., et al. (Case
No. 18-cv-00850). The complaints contain similar allegations,
claiming that the defendants violated Section 10(b) of the
Securities Exchange Act due to alleged misrepresentations and/or
omissions in public statements regarding recognition of revenue.
The court subsequently appointed New York Hotel Trades Council &
Hotel Association of New York City, Inc. Pension Fund as lead
plaintiff. The lead plaintiff then filed an amended complaint
naming the company's Senior Vice President of Investor Relations as
an additional defendant. On June 21, 2019, the lead plaintiff filed
a further amended complaint naming the company's former Senior Vice
President of International Sales, Corporate Secretary and Director
as an additional defendant.
On July 26, 2019, the company filed a motion to dismiss the
complaint. On March 23, 2020, the Court granted the company's
motion to dismiss the complaint, with leave for lead plaintiff to
file an amended complaint within 30 days. On April 22, 2020, lead
plaintiff filed a further amended complaint. On June 15, 2020, the
company filed a motion to dismiss the further amended complaint,
the hearing for which was calendared for September 23, 2020,
however, the Court held a conference on September 15 to discuss how
the Court could efficiently address the recent SEC settlement
agreement. The parties stipulated to allow plaintiffs to further
amend the complaint solely to add allegations relating to the SEC
settlement. On October 14, 2020, plaintiffs filed a Fourth Amended
Complaint.
On October 28, 2020, defendants filed a supplemental motion to
dismiss. On March 29, 2021, the court granted in part and denied in
part defendants' motions to dismiss.
Super Micro Computer, Inc. is into servers and storage systems
based in California.
TALK OF THE TOWN: Default Judgment v. Baugh Entered in Clark Suit
-----------------------------------------------------------------
In the case, CASEY CLARK, Plaintiff v. TALK OF THE TOWN CONTRACT
SERVICES, LLC, et al., Defendants, Case No. 1:21-CV-01369-PAB (N.D.
Ohio), Judge Pamela A. Barker of the U.S. District Court for the
Northern District of Ohio, Eastern Division, granted the
Plaintiff's Motion for Default Judgment.
The matter comes before the Court upon the Motion for Default
Judgment filed by Plaintiff Casey Clark ("Plaintiff" or "Clark") on
Nov. 8, 2021, seeking default judgment solely as to liability
against Defendant Reginald Baugh ("Baugh") under Rule 55(b) (the
"Motion").
I. Background
On July 16, 2021, Clark filed a Class and Collective Action
Complaint on behalf of herself and all others similarly situated
against Defendants Baugh and Talk of the Town Contract Services
("TTCS"), alleging violations of the Fair Labor Standards Act
("FLSA"), 29 U.S.C. Section 201, et seq. and the Ohio Minimum Fair
Wage Standards Act ("OMFWSA"), R.C. Section 4111.01, et seq.
Although Clark originally filed her Complaint as a collective and
class action, in her Motion she asserts that she "has decided to
abandon class/collective relief in this matter and seeks judgment
solely on her claims against Baugh as to liability for the purposes
of the motion." Accordingly, Judge Barker evaluates the Motion
solely with regard to Clark's claims and Baugh's liability.
Defendant Baugh is an "owner, operator, and senior partner" of
TTCS. Clark alleges that Baugh is an employer pursuant to 29 U.S.C.
Section 203(d) in that he is a "person who acted directly or
indirectly in the interest of an employer," TTCS, "in relation to
an employee." Moreover, Baugh is also alleged to be an employer
pursuant to R.C. Section 4111, who had operational control over
significant aspects of TTCS's day-to-day functions, including
employee compensation. TTCS provides dietary, laundry, and
housekeeping services for assisted living, nursing, and
rehabilitation facilities across Ohio and utilizes dietary
technicians, managers, and other food service workers to provide
these services. Clark was employed by the Defendants from
approximately August 2018 to July 2021 as a dietary manager and was
classified as an independent contractor. Since June 2019, Clark was
paid a biweekly salary of $1,250, or $625 per workweek.
Ms. Clark alleges that she was an employee within the meaning of 29
U.S.C. Section 203(e) and R.C. Sections 4111.01, et seq., who was
engaged in commerce or in the production of goods for commerce
within the meaning of 29 U.S.C. Section 207. Clark further alleges
that TTCS classifies many of its employees as independent
contractors and that "through this misclassification, the
Defendants knowingly, willfully, and deliberately failed to
compensate Clark" at the rate of at least one and one-half their
regular rates for all hours worked in excess of 40 hours per
class/collective claims and the instant Motion seeks default
judgment on her individual claims solely as to Baugh's liability.
Ms. Clark avers that she regularly worked 45 to 55 hours per
workweek, but because of the "unlawful 'independent contractor'
misclassification policy and practice," she was not paid overtime
compensation at the appropriate rate. She also alleges that the
Defendants, including Baugh, "failed to keep accurate records of
hours worked of misclassified employees." Moreover, Clark maintains
that the Defendants knew that she was entitled to overtime
compensation under federal and state law or acted in reckless
disregard for whether she was entitled to it.
The docket reflects that Clark served the summons and Complaint
upon Baugh via service by the Clerk of Court through U.S. mail on
Sept. 27, 2021, pursuant to Local Rule 4.2(c). The docket also
reflects that Baugh has thus far failed to file an answer to the
Complaint within the appropriate timeframe. Thereafter, Clark filed
an Application for Entry of Default against Baugh under Fed. R.
Civ. P. 55(a) on Nov. 8, 2021, which the Clerk entered that day,
also mailing a copy of the entry of default to Baugh. The same day
that the Clerk entered default against Baugh, Clark filed the
instant Motion. As Baugh is in default and has thus far failed to
respond to the lawsuit, there has been no Opposition filed thereto.
Accordingly, the Motion is ripe for a decision.
II. Analysis
Upon review of the record in the case, Judge Barker finds that
default judgment as to Baugh's liability is warranted. She opines
that Baugh's failure to respond to the Complaint, entry of default,
or Motion for Default Judgment has made it clear that Baugh has no
intention of defending the action. Judge Barker accepts the
allegations set forth in the Complaint as true and, therefore,
finds that Baugh is liable under the FLSA and the OMFWSA.
First, Judge Barker finds that Baugh is liable as an employer of
Clark under the FLSA and OMFWSA. And taking Clark's well-pleaded
allegations as true, she finds that Clark has established Baugh's
liability for failure to pay the appropriate amount of overtime in
accordance with the FLSA and OMFWSA.
III. Conclusion
Judge Barker granted the Plaintiff's Motion for Default Judgment.
Default judgment as to liability only is entered in the Plaintiff's
favor against Defendant Baugh. The Plaintiff will be permitted to
establish damages pertaining to Defendant Baugh at the time
liability is determined as to appearing Defendant TTCS.
Accordingly, the Plaintiff will file a motion for costs and
attorneys' fees within 14 days after the Court's entry of judgment
as to Defendant TTCS.
A full-text copy of the Court's Feb. 8, 2022 Memorandum Opinion &
Order is available at https://tinyurl.com/2v3z67mw from
Leagle.com.
TENNESSEE VALLEY AUTHORITY: Oral Argument on Bid to Dismiss Held
----------------------------------------------------------------
Tennessee Valley Authority disclosed in its Form 10-Q Report for
the quarterly period ended December 31, 2021, filed with the
Securities and Exchange Commission on February 1, 2022, that oral
argument on the filed supplemental motions to dismiss a class
action lawsuit was held on January 27, 2022.
On June 9, 2020, a proposed class action lawsuit was filed against
Tennessee Valley Authority (TVA) and one of its LPCs, Bristol
Virginia Utilities Authority (BVUA), in federal court in Abingdon,
Virginia, by a LPC customer, asserting claims for breach of
contract and violation of the Administrative Procedure Act.
The lawsuit alleges that the customers of TVA's local power company
(LPC) customers are third-party beneficiaries under TVA's wholesale
power contracts with its LPCs and that TVA's rate changes dating
back to 2010 violate Section 11 of the TVA Act. Section 11 of the
TVA Act establishes the broad policy that TVA power projects shall
be considered primarily for the benefit of the people of the
Tennessee Valley and that service to industry is a secondary
purpose to be used principally to secure a sufficiently high load
factor and revenue returns to permit domestic and rural use at the
lowest possible rates.
The remedies requested include an injunction prohibiting TVA rate
changes that violate Section 11, monetary damages, and repayment of
rates charged in violation of Section 11. TVA and BVUA filed
motions to dismiss the case on November 9, 2020, and filed
supplemental motions to dismiss on December 21, 2020, in response
to an amended complaint filed by the plaintiff.
Oral argument on the motions was held on February 18, 2021, and on
March 19, 2021, the court granted TVA's and BVUA's motions to
dismiss. The plaintiff appealed the district court's judgment to
the U.S. Court of Appeals for the Fourth Circuit on April 15, 2021.
The parties filed their briefs with the Fourth Circuit, and oral
argument was held on January 27, 2022.
Tennessee Valley Authority is an electrical services services
company based in Knoxville TN 37902.
THERMON GROUP: Settlement in Principle Reached in Montreal Suit
---------------------------------------------------------------
Thermon Group Holdings, Inc. disclosed in its 10-Q Report for the
fiscal year ended December 31, 2021, filed with the Securities and
Exchange Commission on February 3, 2022, that it reached an
agreement in principle with the plaintiff and other defendants to
resolve a class action suit in the Superior Court of Quebec,
Montreal, Canada relating to certain heating elements previously
manufactured by the company. Settlement on the class action cases
is subject to approval by said court.
In January 2020, Thermon Group Holdings received service of process
in said class action with regards to certain of its portable
construction heaters.
In March 2021, it reached an agreement in principle with the
plaintiff and other defendants to resolve this matter without
admitting to any liability.
Thermon Group Holdings, Inc. provides engineered industrial process
heating solutions for process industries.
TIVITY HEALTH: Class Cert. Evidentiary Hearing Reset to March 9
---------------------------------------------------------------
In the class action lawsuit captioned as ROBERT STROUGO,
individually and on behalf of all others similarly situated, v.
TIVITY HEALTH, INC., et al., Case No. 3:20-cv-00165 (M.D. Tenn.),
the Hon. Judge Waverly D. Crenshaw, Jr. entered an order granting
the Defendants' unopposed motion to reschedule evidentiary hearing
on Plaintiff's motion for class certification.
The evidentiary hearing set for March 8, 2022 is reset to March 9,
2022, at 9:00 a.m., the Court says.
Tivity Health is a provider of health improvement, fitness and
social engagement solutions. Tivity Health is headquartered in
Franklin, Tennessee with offices in Fort Washington, Pennsylvania
and Chandler, Arizona.
A copy of the Court's order dated Feb. 7, 2021 is available from
PacerMonitor.com at https://bit.ly/3HKW4Nc at no extra charge.[CC]
UBIQUITI INC: Molder Securities Suit Voluntarily Dismissed
----------------------------------------------------------
Ubiquiti Inc. disclosed in its Form 10-Q Report for the quarterly
period ended December 31, 2021, filed with the Securities and
Exchange Commission on February 4, 2022, that a purported class
action alleging that the defendants violated Sections 10(b) and
20(a) of the Securities Exchange Act of 1934 and Rule 10b-5
promulgated thereunder by making false and/or misleading statements
has been voluntarily dismissed.
On May 19, 2021, a purported class action, captioned "Nils Molder,
individually and on behalf of all others similarly situated v.
Ubiquiti Inc. et al.," No. 1:21-cv-04520 (the "Securities Action"),
was filed in the United States District Court for the Southern
District of New York against the Company and certain of its
officers. The Securities Action complaint alleges that the
defendants violated Sections 10(b) and 20(a) of the Securities
Exchange Act of 1934 and Rule 10b-5 promulgated thereunder by
making false and/or misleading statements, including purported
failure to disclose material facts about a data breach experienced
by the Company in January 2021.
On July 30, 2021, the Court appointed a lead plaintiff and lead
plaintiff's counsel, and the case was subsequently captioned In re
Ubiquiti Inc. Securities Litigation, 21 Civ. 4520 (DLC). Lead
plaintiff filed an amended complaint on September 24, 2021.
Defendants moved to dismiss the amended complaint on October 22,
2021. On November 12, 2021, lead plaintiff filed a second amended
complaint. On January 5, 2022, lead plaintiff voluntarily dismissed
the Securities Action.
Ubiquiti Inc. develops technology platforms based in New York.
UBS FINANCIAL: Court Wants Prefiling Review of Hsu's Future Filings
-------------------------------------------------------------------
In the case, DARRU K. HSU, Plaintiff v. UBS FINANCIAL SERVICES,
INC., Defendant, Case No. C 11-02076 WHA (N.D. Cal.), Judge William
Alsup of the U.S. District Court for the Northern District of
California issued an order designating the Plaintiff a vexatious
litigant and ordered pre-filing review of future filings by him and
about the Defendant.
I. Background
The Order arises from a putative class action dismissed in August
2011.
Plaintiff Hsu entered into a wrap agreement with Defendant UBS for
investment and advisory services. Hsu brought the action under the
Investment Advisers Act, alleging that USB provided services "in
its capacity as an investment advisor," but that a "hedge clause"
in his agreement with USB impermissibly required Mr. Hsu to waive
certain rights under the Act.
An August 2011 order dismissed Mr. Hsu's first amended complaint
for failure to state a claim. Although the dismissal order
permitted Mr. Hsu an opportunity to propose a second amended
complaint, Mr. Hsu did not amend, and judgment was eventually
entered in favor of USB. Shortly thereafter, Mr. Hsu appealed.
During the appeal process, Mr. Hsu terminated the counsel and has
since proceeded pro se. In February 2013, the Court of Appeals
affirmed the dismissal for failure to state a claim, and later
denied an en banc hearing. The Supreme Court denied a petition for
a writ of certiorari in October 2013.
In January 2014, Mr. Hsu moved to set aside the judgment pursuant
to FRCP 60(b)(6) and FRCP 60(d)(3). The motion was denied by a
March 2014 order. In May 2017, the Court of Appeals denied an en
banc rehearing, and noted that no further filings will be
entertained in the closed case. The Supreme Court denied a petition
for rehearing in December 2017.
In February 2018, Mr. Hsu again moved to set aside the judgment
pursuant to FRCP 60(b)(4). USB, in turn, moved to have Mr. Hsu
declared a vexatious litigant. An April 2018 order denied both
motions, finding that Mr. Hsu had failed to establish that relief
from judgment was warranted and that the record failed to
demonstrate that Mr. Hsu was a vexatious litigant. The order,
however, warned Mr. Hsu that he would soon be declared a vexatious
litigant if he continues with unmeritorious litigation.
In January 2019, Mr. Hsu moved for reconsideration of the April
2018 order, and to "transfer jurisdiction" and to disqualify the
undersigned judge. USB again moved to declare Mr. Hsu a vexatious
litigant. A March 2019 order denied both motions, but also sent a
final warning: Should Mr. Hsu file any new filings that are
duplicative of matters that have already been definitively resolved
in the case, he would be declared a vexatious litigant. In October
2019, our court of appeals denied Mr. Hsu's motion for
reconsideration, and again noted that no further filings will be
entertained in this closed case. In April 2020, the Supreme Court
denied a petition for writ of certiorari.
In August 2020, Mr. Hsu moved for a writ to certify a class and
appoint class counsel under the All Writs Act. A September 2020
order denied the motion. An order filed on the same day entered
judgment in favor of USB and against Mr. Hsu. Mr. Hsu moved for
leave to file a motion for reconsideration of the order denying his
motion for writ. A November 2020 order denied the motion.
In July 2021, Mr. Hsu moved for entry of judgment pursuant to FRCP
54(b). A November 2021 order denied the motion and requested Mr.
Hsu to show cause why he should not be deemed a vexatious litigant,
to which Mr. Hsu filed his response.
A hearing was held in person on Nov. 29, 2021. The defense counsel
did not appear despite having received notice of the hearing. Mr.
Hsu appeared on time and made a statement to the Court. After the
hearing, the Court ordered the defense counsel to file a
declaration to explain whether Mr. Hsu's statement at the hearing
is persuasive or not. The order further noted that Mr. Hsu may
reply in writing within 14 days of the defense filing.
USB timely filed a response. So did Mr. Hsu.
USB correctly notes that Mr. Hsu raises issues that were brought or
could have been brought before final judgment and that he "does not
address the fact that the judgment became final after plenary
exhaustion of all available appeals from the judgment, does not
address the res judicata bar, does not address the interest in the
finality of judgment, and does not state any reason why he should
not be declared a vexatious litigant." In response, Mr. Hsu raises
the same issues as before.
II. Analysis
Judge Alsup explains that when a litigant's filings are numerous
and frivolous, districts courts have the inherent power under 28
U.S.C. Section 1651(a) to declare the litigant vexatious and enter
a prefiling order requiring that future complaints be subject to an
initial review before they are filed. A prefiling order becomes
appropriate when "flagrant abuse of the judicial process enables
one person to preempt the use of judicial time that properly could
be used to consider the meritorious claims of other litigants." The
court of appeals requires: (1) notice to the litigant, (2) an
adequate record for review, (3) substantive findings of
frivolousness, and (4) narrowly-catered orders.
First, a litigant must have adequate notice and a chance to be
heard before being declared a vexatious litigant. In the case, Mr.
Hsu received notice when the Court twice warned him that he was at
risk of being declared a vexatious litigant. He was given the
opportunity to file response and attend hearing to show cause why
he should not be deemed a vexatious litigant. He attended. The
defense counsel did not, so after the hearing, the counsel got an
opportunity to respond in writing and explain the absence, and Mr.
Hsu received an opportunity to reply. Mr. Hsu was afforded
sufficient procedural due process. Accordingly, the first element
has been satisfied.
Second, a district court must create a record for review which, at
least, shows in some manner that the litigant's activities were
numerous or abusive. Mr. Hsu's activities were numerous. Over the
past 10 years, he filed many motions to reargue his closed case (in
2014, 2018, 2019, 2020, and 2021), relying on repetitive and
incomprehensible arguments that the Court had already rejected. He
has gone up on appeal six times: Three times to our court of
appeals (in 2011, 2014, and 2019) and three times to the Supreme
Court (in 2013, 2017, and 2019), all without success.
Third, a district court must make substantive findings as to the
frivolous or harassing nature of the litigant's actions. The
November show-cause order detailed how Mr. Hsu was twice warned of
the risk of the being declared a vexatious litigant. Mr. Hsu
continued to file new motions with duplicative and repetitive
arguments. Record shows that meritless filings have consumed
significant judicial resources.
Fourth, the prefiling order must be narrowly tailored to closely
fit the specific abuse encountered. In the case, the order will
restrict its scope to restrain Mr. Hsu from "reopening litigation
based on the facts and issues decided in" previous lawsuits brought
against the same or nearly the same group of defendants.
Judge Alsup concludes that Mr. Hsu has had full and fair
opportunity to litigate his case. He finds Mr. Hsu's response and
statements at the hearing unpersuasive. If he decides to bring a
future action, whether pro se or represented by the counsel, Mr.
Hsu must satisfy the prefiling requirements and clearly and
succinctly explain why his claims sidestep res judicata.
III. Conclusion
For the reasons he stated, Judge Alsup required that future
lawsuits against USB by Mr. Hsu first be screened by the
undersigned judge in accordance with this prefiling order.
The Clerk of the Court is instructed not to automatically accept
any further filings from Mr. Hsu, whether via counsel or himself,
if they are: (1) brought against UBS Financial Services, Inc., any
of its current or former parents, subsidiaries, or affiliate
companies, any of its current or former officers, directors, or
employees; or (2) brought against any of the attorneys or law firms
that formerly or presently represent any of the parties in this or
in past litigation.
A full-text copy of the Court's Feb. 8, 2022 Order is available at
https://tinyurl.com/4np2cv7r from Leagle.com.
UNITED FOOD: Files Cross Appeal in Nagel Labor Case
----------------------------------------------------
United Food and Commercial Workers Local 653 filed a cross appeal
from a court ruling entered in the lawsuit styled entitled Matthew
Nagel, individually and on behalf of all others similarly situated,
Plaintiff v. United Food and Commercial Workers Union, Local 653,
Defendant, Case No. 18-cv-01053-WMW, in the U.S. District Court for
the District of Minnesota.
The dispute arises from a 2018 collective bargaining agreement
("CBA") negotiated between Defendant Local 653 and SuperValu Cub
Foods and other independent grocers located in the Minneapolis
metropolitan area ("Grocers"). Nagel is employed by SuperValu and
is a member of Local 653. Local 653 is the exclusive bargaining
agent for all meat and food market employees of the Grocers.
Nagel brought the action individually and on behalf of all others
similarly situated, asserting claims against Local 653 for breach
of the duty of fair representation and violation of the Labor
Management Reporting and Disclosure Act ("LMRDA"). Local 653 moved
to dismiss Nagel's claims, and the Court concluded that Nagel has
sufficiently alleged facts to state a claim for a breach of the
duty of fair representation by bad-faith conduct. It also dismissed
for lack of subject-matter jurisdiction Nagel's claim for violation
of the LMRDA.
As reported in the Class Action Reporter on February 12, 2021,
Judge Wilhelmina M. Wright of the U.S. District Court for the
District of Minnesota denied Nagel's motion for class
certification.
On June 4, 2021, the Defendant filed a Motion for Summary Judgment,
which the Court granted on January 18, 2022. The Defendant's motion
to exclude expert testimony was denied as moot.
The Plaintiffs sought a review of the summary judgment ruling on
Feb. 11, 2022.
United Food and Commercial Workers Local 653 now files this cross
appeal to challenge the Court's denial of its motion to exclude
expert testimony.
The appellate case is captioned United Food and Commercial Workers
Local 653 v. Matthew Nagel, et al., Case No. 22-1330, in the United
States Court of Appeals for the Eighth Circuit, filed on Feb. 15,
2022.
The briefing schedule in the Appellate Case states that:
-- Transcript is due on or before March 23, 2022;
-- BRIEF APPELLANT, Jessica Becklund, Sharon Brown, Pat Darling,
Dean Dugan, Matthew Giesler, Steven Giesler, Robert Haas, Jonathan
Hamel, Lance Hanson, Eric Hazelbaker, Dawn Herzuck, Mark Hoffman,
Anthony Jensen, John Legierski, Carl Lundberg, Martin Manley,
Nicolas McBride, Judy McDowell, Shawn Moore, Daniel Morris, Matthew
Nagel, Bruce Olson, Mark Oslos, Luwana Meyer Pohl, Gregory Ponting,
Dan Quant, Don Renfrow, Annette Ries, Donna Rohling, Paul Rowe,
Becky Syverston and Patrick VanHoutan is due on April 4, 2022;
-- Appendix is due on April 4, 2022; and
-- Appellee/cross Appellant brief is due 30 days from the date
the court issues the Notice of Docket Activity filing the
appellant's brief.[BN]
Defendant-Appellant United Food and Commercial Workers Local 653 is
represented by:
Timothy J. Louris, Esq.
Emily Lacy Marshall, Esq.
MILLER & O'BRIEN
120 S. Sixth Street, Suite 2400
Minneapolis, MN 55402-1529
Telephone: (612) 333-5831
Plaintiffs-Appellees Matthew Nagel, individually and on behalf of
all others similarly situated, is represented by:
Jerri C. Adams Belcher, Esq.
Scott Moriarity, Esq.
Shawn J. Wanta, Esq.
BAILLON & THOME
100 S. Fifth Street, Suite 1200
Minneapolis, MN 55402
Telephone: (612) 252-3570
Intervenor Plaintiffs-Appellees Jessica Becklund, Sharon Brown, Pat
Darling, Dean Dugan, Matthew Giesler, Steven Giesler, Robert Haas,
Jonathan Hamel, Lance Hanson, Eric Hazelbaker, Dawn Herzuck, Mark
Hoffman, Anthony Jensen, John Legierski, Carl Lundberg, Martin
Manley, Nicolas McBride, Judy McDowell, Shawn Moore, Daniel
Morris,Bruce Olson, Mark Oslos, Luwana Meyer Pohl, Gregory
Ponting, Dan Quant, Don Renfrow, Annette Ries, Donna Rohling, Paul
Rowe, Becky Syverston, and Patrick VanHoutan are represented by:
Scott Moriarity, Esq.
BAILLON & THOME
100 S. Fifth Street, Suite 1200
Minneapolis, MN 55402
Telephone: (612) 252-3578
UNITED STATES FIRE: Court Dismisses Riley Suit Without Prejudice
----------------------------------------------------------------
In the case, SHANNA RILEY, individually and on behalf of all others
similarly situated, Plaintiff v. UNITED STATES FIRE INSURANCE
COMPANY and TRIP MATE, INC., Defendants, Case No. 4:21-CV-0192-DGK
(W.D. Mo.), Judge Greg Kays of the U.S. District Court for the
Western District of Missouri, Western Division, granted the
Defendants' Motion to Dismiss Plaintiff's First Amended Class
Action Complaint.
Background
The lawsuit arises from the COVID-19 pandemic. Well before the
pandemic began, the Plaintiff booked a trip to Australia and
purchased a travel insurance policy administered by Defendant Trip
Mate and underwritten by Defendant U.S. Fire. In March of 2020, in
response to various recommendations against non-essential travel,
the Plaintiff canceled the trip and sought to recover under the
travel insurance policy. Her claim was denied.
The Plaintiff alleges she and the putative class members are
entitled to trip cancellation benefits under travel insurance
policies underwritten by the Defendants. The Defendants contend the
polices do not cover the voluntary cancellation of a trip due to a
pandemic or virus.
Now before the Court is the Defendants' Motion to Dismiss brought
pursuant to Federal Rule of Civil Procedure 12(b)(6).
Discussion
The Plaintiff asserts a claim for breach of contract (Count II) and
in addition to requesting monetary damages, requests relief in the
form of a declaratory judgment (styled "First Claim For Relief").
She argues she is entitled to benefits under the Policy's trip
cancellation provision because she was prevented from taking her
trip "due to" being "quarantined." The Plaintiff alternately
asserts a claim for unjust enrichment (Count III), seeking a
pro-rata refund of premiums paid to cover post-departure perils.
While the parties disagree whether the Complaint states a claim on
which relief can be granted, they agree that Colorado law governs
the case, so Judge Kays applies Colorado substantive law.
I. The breach of contract claims fails as a matter of law.
Trip cancellation coverage under the Policy requires that an
insured be prevented from taking his or her trip "due to" "being
quarantined."
Judge Kays that the Plaintiff's contention -- that what she
characterizes as "self-enforced isolation to avoid contracting or
spreading a virus in response to governmental guidance"
discouraging non-essential travel "subjected" her to a "quarantine"
under the Policy -- is without merit. Granted, the Policy does not
define the term "quarantine," but that does not matter because as
used in the Policy "quarantine" is not ambiguous. In fact, it is
quite clear.
The Complaint does not allege any directive or order compelled the
Plaintiff to isolate due to possible contagion, nor does it allege
she was required to cancel her trip. To the contrary, it alleges
that the day before Plaintiff cancelled her trip, the Centers for
Disease Control and Prevention ("CDC") had only "recommended" that
high-risk individuals "should avoid cruise and non-essential air
travel." Hence, the Plaintiff was never compelled to be
"quarantined."
The Plaintiff's decision to cancel her trip was a voluntary one.
She was not prevented from taking her trip due to being
quarantined, thus her cancellation is not covered under the
Policy's trip cancellation provision.
II. The declaratory judgment "claim" is not a claim but a remedy
and must be dismissed.
The Defendants move to dismiss the declaratory judgment claim on
the grounds that it is "duplicative" of the contract claim. They
are essentially arguing that the Plaintiff's declaratory judgment
"claim" is subsumed in her breach of contract claim, so that
dismissal of the breach of contract claim dooms Plaintiff's request
for declaratory relief.
This is correct, Judge Kays. To begin, he notes that under 28
U.S.C. Section 2201, a declaratory judgment is a remedy, like a
request for punitive damages; it is not an independent cause of
action. Even though the Complaint characterizes the request for a
declaratory judgment as a separate cause of action, it is not. It
is a remedy for the alleged breach of contract pled in Count II.
III. The unjust enrichment claim fails as a matter of law.
Finally, the Defendants move to dismiss the Plaintiff's unjust
enrichment claim on the grounds that she cannot recover for unjust
enrichment since there is an express contract addressing her
obligation to pay.
Assuming for the sake of argument that the Plaintiff has pled in
the alternative sufficient facts to support an unjust enrichment
claim, her unjust enrichment claim fails as a matter of law, Judge
Kays holds. Under Colorado law, a party cannot recover for unjust
enrichment where, as here, "there is an express contract addressing
the subject of the alleged obligation to pay," and neither of the
two possible exceptions to this doctrine applies. In the case, the
Policy expressly addresses the two sources of the Defendants'
alleged obligations to pay, the trip cancellation provision and or
as a refund, so the Policy covers the subject matter of the
Plaintiff's unjust enrichment claim. Additionally, neither
exception applies. Consequently, the Plaintiff's unjust enrichment
claim is foreclosed.
Conclusion
For the reasons he discussed, Judge Kays granted the motion. All
claims against the Defendants are dismissed. Although the
Defendants have moved for dismissal with prejudice, they have not
explained why dismissal should be with prejudice. Accordingly,
erring on the side of caution, the dismissal is without prejudice.
A full-text copy of the Court's Feb. 8, 2022 Order is available at
https://tinyurl.com/2p8hcw8a from Leagle.com.
UNITED STATES: Navy Seals Seek Feb. 28 or March 1 Hearing
---------------------------------------------------------
In the class action lawsuit captioned as U.S. NAVY SEALs 1-3; on
behalf of themselves and all others similarly situated; U.S. NAVY
EXPLOSIVE ORDNANCE DISPOSAL TECHNICIAN 1, on behalf of himself and
all others similarly situated; U.S. NAVY SEALS 4-26; U.S. NAVY
SPECIAL WARFARE COMBATANT CRAFT CREWMEN 1-5; and U.S. NAVY DIVERS
1-3, v. LLOYD J. AUSTIN, III, in his official capacity as United
States Secretary of Defense; UNITED STATES DEPARTMENT OF DEFENSE;
CARLOS DEL TORO, in his official capacity as United States
Secretary of the Navy, Case No. 4:21-cv-01236-O (N.D. Tex.), the
Plaintiffs ask the Court to enter an order setting a hearing on
either February 28, 2022 or March 1, 2022 on the following pending
motions:
a. Plaintiffs' Motion for Class Certification;
b. Plaintiffs' Motion for Classwide Preliminary Injunction;
c. Defendants' Motion for Stay Pending Appeal; and
d. Plaintiffs' Motion for Order to Show Cause.
The United States Department of Defense is an executive branch
department of the federal government charged with coordinating and
supervising all agencies and functions of the government directly
related to national security and the United States Armed Forces.
A copy of the Plaintiffs' motion dated Feb. 9, 2021 is available
from PacerMonitor.com at https://bit.ly/3Bk74Pa at no extra
charge.[CC]
The Plaintiffs are represented by:
Kelly J. Shackelford, Esq.
Jeffrey C. Mateer, Esq.
Hiram S. Sasser, III, Esq.
David J. Hacker, Esq.
Michael D. Berry, Esq.
Justin Butterfield, Esq.
Danielle A. Runyan, Esq.
Holly M. Randall, Esq.
FIRST LIBERTY INSTITUTE
2001 W. Plano Pkwy., Ste. 1600
Plano, TX 75075
Telephone: (972) 941-4444
E-mail: jmateer@firstliberty.org
hsasser@firstliberty.org
dhacker@firstliberty.org
mberry@firstliberty.org
jbutterfield@firstliberty.org
drunyan@firstliberty.org
hrandall@firstliberty.org
- and -
Jordan E. P Ratt, Esq.
FIRST LIBERTY INSTITUTE
227 Pennsylvania Ave., SE
Washington, DC 20003
Telephone: (972) 941-4444
E-mail: jpratt@firstliberty.org
- and -
Heather Gebelin Hacker, Esq.
Andrew B. Stephens, Esq.
HEATHER GEBELIN HACKER
HACKER STEPHENS LLP
108 Wild Basin Road South, Suite 250
Austin, TX 78746
Telephone: (512) 399-3022
E-mail: heather@hackerstephens.com
andrew@hackerstephens.com
VIEW INC: Kaplan Fox Named Lead Counsel in Mehedi Securities Suit
-----------------------------------------------------------------
In the case, ASIF MEHEDI, Plaintiff v. VIEW, INC., et al.,
Defendants, Case No. 21-cv-06374-BLF (N.D. Cal.), Judge Beth Labson
Freeman of the U.S. District Court for the Northern District of
California, San Jose Division, appointed Stadium Capital LLC as the
Lead Plaintiff and Kaplan Fox & Kilsheimer LLP as the Lead
Counsel.
I. Introduction
Before the Court are Sweta Sonthalia and Stadium's competing
Motions for Appointment as Lead Plaintiff and Lead Counsel in the
securities class action brought by Plaintiff Mehedi against View
and its CEO Rao Mulpuri and CFO Vidul Prakash ("Individual
Defendants"). Mr. Mehedi brings claims on behalf of a putative
class of investors who bought View securities between Nov. 30, 2020
and Aug. 16, 2021 and allegedly suffered losses based on View's
making materially false or misleading statements and failing to
disclose material adverse facts about the company's business,
including warranty costs and internal controls. View's alleged
fraud led to a fall in its stock price following an announcement
after the market closed on August 16, 2021 that it was beginning an
independent investigation concerning the adequacy of the company's
previously disclosed warranty accrual (the "Corrective
Disclosure").
Ms. Sonthalia and Stadium allege that they purchased View
securities during the Class Period and suffered losses as a result
of the Defendants' alleged fraud, and they each move to be
appointed as the Lead Plaintiff and their counsel to be appointed
as the Lead Counsel. Ms. Sonthalia and Stadium dispute who is the
presumptive Lead Plaintiff in the case based on the amount of loss
suffered, because they calculate loss in different ways.
While Ms. Sonthalia proposes "last in, first out" ("LIFO") net loss
and Dura-adjusted LIFO loss formulas that indicate she suffered a
higher economic and recoverable loss from the Defendants' alleged
fraud, Stadium proposes a loss formula adopted by the Court in the
Enphase case (Hurst v. Enphase, No. 20-cv-04036-BLF, 2020 WL
7025085, at **2-4 (N.D. Cal. Nov. 30, 2020)), which indicates that
Stadium suffered the higher value of recoverable loss. Ms.
Sonthalia requests appointment of her counsel Roche Freedman LLP as
the Lead Counsel, while Stadium requests appointment of its counsel
Kaplan Fox.
II. Background
View is a technology company that primarily manufactures a "smart"
glass panel that adjusts in response to changing sunlight through
dynamic tinting. It is a Delaware corporation with its principal
place of business in California that trades on the NASDAQ
exchange.
On Aug. 18, 2021, Plaintiff Mehedi filed the present action,
alleging that View and the Individual Defendants violated Section
10(b) of the Securities Exchange Act of 1934 (the "Exchange Act"),
and the Individual Defendants violated Section 20(a) of the
Exchange Act, through materially false or misleading statements and
failure to disclose material adverse facts about its business
during the Class Period. The Plaintiff alleges that during the
Class Period, View failed to disclose to investors that "(1) View
had not properly accrued warranty costs related to its product; (2)
that there was a material weakness in View's internal controls over
accounting and financial reporting related to warranty accrual; (3)
that, as a result, the Company's financial results for prior
periods were misstated; and (4) that, as a result of the foregoing,
the Defendants' positive statements about the Company's business,
operations, and prospects were materially misleading or lacked a
reasonable basis."
On Aug. 16, 2021, after the market closed, View made the Corrective
Disclosure, which stated that View "recently began an independent
investigation concerning the adequacy of the Company's previously
disclosed warranty accrual." Following the Corrective Disclosure on
Aug. 16, 2021, View's share price allegedly fell $1.26, or over
24%, to close at $3.92 per share on Aug. 17, 2021.
Mr. Mehedi purchased View stock during the Class Period and
allegedly suffered damages as a result of View and the Individual
Defendants' alleged securities law violations. Mr. Mehedi brings
his claims on behalf of a putative class consisting of "all persons
and entities that purchased or otherwise acquired View securities
between Nov. 30, 2020 and Aug. 16, 2021, inclusive, and who were
damaged thereby" (the "Putative Class").
On Oct. 18, 2021, five individuals and entities filed Motions to
Appoint Lead Plaintiff and Lead Counsel -- Feng Li; FirstFire
Global Opportunities Fund, LLC; Majdi Mojahed; Ms. Sonthalia; and
Stadium. Three of those original movants -- Mr. Mojahed, FirstFire,
and Mr. Li -- filed statements of non-opposition to the competing
Motions and provided no further briefing. Ms. Sonthalia and Stadium
fully briefed their Motions.
Judge Freeman considers Ms. Sonthalia and Stadium's competing
Motions.
III. Discussion
Ms. Sonthalia indicates that she bought 60,424 shares of View
securities, expending a total of $700,202.57, between Dec. 10, 2020
and Feb. 5, 2021. Ms. Sonthalia retained all 60,424 shares until
the end of the Class Period and until the end of 90-day period
following the Corrective Disclosure on Aug. 16, 2021.
Based on her $700,202.57 in expenditures, her 60,424 shares in
retained stock, and the $5.23 average price for View stock during
the 90-day period following the Corrective Disclosure, Ms.
Sonthalia is asserting under 15 U.S.C. Section 78u-4(e) that she
had net losses of approximately $384,185 ($700,203 - 60,424 x $5.23
≈ $384,185) to Stadium's $330,009. Further, Ms. Sonthalia is
asserting based on the Supreme Court's ruling in the Dura case that
her recoverable losses are also equal to $384,185, because she
retained all her shares until the end of the Class Period, whereas
Stadium's recoverable losses are only $127,048, since it sold all
but 60,000 of its shares prior to the Corrective Disclosure.
Stadium indicates that it bought 426,235 shares of View securities,
expending a total of $3,642,869, between Dec. 1, 2020 and Aug. 12,
2021. It retained 60,000 shares at the end of the Class Period.
Stadium sold its 60,000 retained shares on Aug. 17, 2021 at a price
of $4.2306 following the Corrective Disclosure.
Stadium asserts that it had $330,010 in net losses based on its
purchase of View stock. It further asserts that based on the price
of View stock on Aug. 16, 2021 just prior to the Corrective
Disclosure ($5.18), Stadium's 60,000 retained shares, and its Aug.
17, 2021 sale price of $4.2306, Stadium had a recoverable loss of
$56,964 (60,000 x $5.18 - 60,000 x $4.2306 ≈ $56,964). Stadium
asserts that Ms. Sonthalia did not suffer a recoverable loss -- in
fact, it asserts that she experienced a gain of $3,022.
Judge Freeman finds that the Recoverable Loss approach is the
superior method for calculating the parties' losses. Under this
approach, Stadium lost $56,964 while Ms. Sonthalia gained $3,022.
Accordingly, Stadium had the greatest loss. Considering that courts
primarily weigh the approximate losses suffered more heavily than
other factors, and the other factors are not clearly in favor of
either party, Judge Freeman finds that Stadium has demonstrated the
larger financial interest in the litigation and is therefore the
presumptive Lead Plaintiff.
Next, Judge Freeman holds that Stadium has adequately shown that it
meets the Rule 23 requirements. She finds that Stadium has
sufficiently shown the typicality of its claims for those of the
class and it has sufficiently shown that it is an adequate
representative for the putative class.
Finally, no parties have objected to Stadium's selection of Kaplan
Fox as counsel. Judge Freeman has reviewed the firm's resume, and
is satisfied that Stadium has made a reasonable choice of counsel.
Accordingly, she approves Stadium's selection of Kaplan Fox as the
Lead Counsel.
IV. Conclusion
For the foregoing reasons, Judge Freeman appointed Stadium as the
Lead Plaintiff and Kaplan Fox as the Lead Counsel. She denied all
the other Motions to Appoint Lead Plaintiff and Lead Counsel.
A full-text copy of the Court's Feb. 8, 2022 Order is available at
https://tinyurl.com/yckfphc7 from Leagle.com.
VIEW INC: Stadium Capital Appointed as Lead Plaintiff
-----------------------------------------------------
In the class action lawsuit captioned as ASIF MEHEDI v. VIEW, INC.,
et al., Case No. 5:21-cv-06374-BLF (N.D. Cal.), the Hon. Judge Beth
Labson Freeman entered an order:
1. appointing Stadium Capital LLC as Lead Plaintiff;
2. appointing Kaplan Fox & Kilsheimer LLP as Lead Counsel;
and
3. denying all other Motions to appoint Lead Plaintiff and
Lead Counsel.
Stadium moves for an order appointing it as Lead Plaintiff and
Kaplan Fox as Lead Counsel for the Class. Stadium indicates that it
bought 426,235 shares 9 of View securities, expending a total of
$3,642,869, between December 1, 2020 and August 12, 2021.
On August 18, 2021, the Plaintiff Asif Mehedi filed the present 16
action, alleging that View and the Individual Defendants violated
Section 10(b) of the Securities Exchange Act of 1934, and the
Individual Defendants violated Section 20(a) of the Exchange Act,
through materially false or misleading statements and failure to
disclose material adverse facts about its business during the Class
Period. The Plaintiff alleges that during the Class Period, View
failed to disclose to investors that "View had not properly accrued
warranty costs related to its product."
View is a technology company that primarily manufactures a "smart"
glass panel that adjusts in response to changing sunlight through
dynamic tinting.
A copy of the Court's order dated Feb. 8, 2021 is available from
PacerMonitor.com at https://bit.ly/34Tr2Ez at no extra charge.[CC]
VISIT HEALTHCARE: Tatum-Rios Files ADA Suit in S.D. New York
------------------------------------------------------------
A class action lawsuit has been filed against Visit Healthcare
Corporation. The case is styled as Lynnette Tatum-Rios,
individually and on behalf of all other persons similarly situated
v. Visit Healthcare Corporation doing business as: Visit
Healthcare, Case No. 1:22-cv-01237 (S.D.N.Y., Feb. 14, 2022).
The lawsuit is brought over alleged violation of the Americans with
Disabilities Act.
Visit Healthcare -- https://www.visit-healthcare.com/ -- has
focused on at-home phlebotomy and medical care services since
2015.[BN]
The Plaintiff is represented by:
Douglas Brian Lipsky, Esq.
LIPSKY LOWE LLP
630 Third Avenue Fifth Floor
New York, NY 10017
Phone: (212) 392-4772
Fax: (212) 444-1030
Email: doug@lipskylowe.com
VM INNOVATIONS: Case Management Plan & Scheduling Order Entered
---------------------------------------------------------------
In the class action lawsuit captioned as VICTORIANO TAVAREZ v. VM
INNOVATIONS, INC., Case No. 21 -cv- 10033-LJL (S.D.N.Y.), the Hon.
Judge entered a case management plan and scheduling order as
follows:
-- Any motion to amend or to join March 11, 2022
additional parties shall be filed
no later than:
-- Initial disclosures pursuant to Feb. 23, 2022
Rule 26(a)(1) of the Federal Rules
of Civil Procedure shall be
completed no later than:
-- All fact discovery is to be July 22, 2022
completed no later than:
-- All expert discovery, including July 25, 2022
disclosures, reports, production
of underlying documents, and
depositions shall be completed by:
-- All discovery shall be completed Aug. 1, 2022
no later than:
-- A post-discovery status conference Aug. 1, 2022
shall be held on:
A copy of the Court's order dated Feb. 8, 2021 is available from
PacerMonitor.com at https://bit.ly/3gJk87j at no extra charge.[CC]
The Plaintiff is represented by:
William J. Downes, Esq.
MIZRAHI KROUB LLP
www.mizrahikroub.com
200 Vesey St., 24th Floor
New York, NY 10281
Telephone: (212) 595-6200
Facsimile: (212) 595-9700
The Defendant is represented by:
Brooke Harrison McCarthy, Esq.
WASHINGTON: Anderson Class Suit Dismissed
-----------------------------------------
In the class action lawsuit captioned JOHN ANDERSON, JEREMY MATHIS,
JOSEPH MEGNA, BRANDON OLLIVIER, JEFFREY PAYNE, and DARREN PERKINS,
v. JILMA MENESES, in her official capacity as SECRETARY OF THE
WASHINGTON DEPARTMENT OF SOCIAL AND SERVICES, Case No.
3:19-cv-05574-RJB (W.D. Wash.), the Hon. Judge Robert J. Bryan
entered an order:
1. granting the Plaintiffs' motion to strike the Declaration
of Jennifer Colbert;
2. granting the Defendant's motion for summary judgment; and
3. dismissing the case.
The Plaintiffs are residents at the Special Commitment Center
("SCC"), a post-sentence treatment facility for people designated
by a court as sexually violent predators. They assert that the
Defendant violated their Fourteenth Amendment right to equal
protection by paying them less than others detained in mental
health settings (in Secure Community Transition Facilities and
Western State Hospital) and violated their Eighth and Fourteenth
Amendment rights to be free from cruel and unusual punishment by
subjecting them to unsafe working conditions. The Plaintiffs seek
declaratory and injunctive relief, attorneys' fees and costs.
Established in 1990, the SCC is managed by the Washington
Department of Social and Health Services. The SCC serves as a
secure mental health facility to treat individuals deemed predatory
sex offenders by a civil court.
A copy of the Court's order dated Feb. 8, 2021 is available from
PacerMonitor.com at https://bit.ly/3JnCbMG at no extra charge.[CC]
WE LEND LLC: Mooney Files TCPA Suit in S.D. New York
----------------------------------------------------
A class action lawsuit has been filed against We Lend, LLC. The
case is styled as Cathy Mooney, individually and on behalf of all
others similarly situated v. We Lend, LLC, a Delaware company, Case
No. 1:22-cv-01221-VSB (S.D.N.Y., Feb. 14, 2022).
The lawsuit is brought over alleged violation of the Telephone
Consumer Protection Act for Restrictions of Use of Telephone
Equipment.
We Lend -- https://www.welendllc.com/ -- is a private money lender
focused on servicing real estate investors by providing quick and
low-cost capital on their investment properties.[BN]
The Plaintiff is represented by:
Stefan Louis Coleman, Esq.
LAW OFFICES OF STEFAN COLEMAN, P.A.
11 Broadway, Suite 615
New York, NY 08701
Phone: (877) 333-9427
Email: law@stefancoleman.com
WILLIAMS-SONOMA STORES: Reed Files Suit in Cal. Super. Ct.
----------------------------------------------------------
A class action lawsuit has been filed against Williams-Sonoma
Stores, Inc., et al. The case is styled as Evan Reed, as an
individual on behalf of himself, and on behalf of all others
similarly situated v. Williams-Sonoma Stores, Inc., a California
corporation; Williams-Sonoma, Inc., a Delaware corporation; Case
No. CGC22598118 (Cal. Super. Ct., San Francisco Cty., Feb. 14,
2022).
The case type is stated as "Other Non-Exempt Complaints (Class
Action Complaint for 1. recovery of unpaid minimum wages and
liquidated damages 2. failure to provide meal periods or
compensation in lieu thereo)."
Williams-Sonoma, Inc. -- http://www.williams-sonomainc.com/-- is
the premier specialty retailer of high-quality products for the
home.[BN]
The Plaintiff is represented by:
Zachary Crosner, Esq.
CROSNER LEGAL, P.C.
9440 Santa Monica Blvd. Suite 301
Beverly Hills, CA 90210
Phone: (310) 496-5818
Fax: (310) 510-6429
Email: zach@crosnerlegal.com
WWE INC: Faces Injury Suits by Performers
-----------------------------------------
World Wrestling Entertainment Inc. (WWE) disclosed in its Form 10-Q
Annual Report for the fiscal year ended December 31, 2021, filed
with the Securities and Exchange Commission on February 3, 2022,
that class action lawsuits were filed against it alleging that the
company ignored, downplayed, and/or failed to disclose the risks
associated with traumatic brain injuries suffered by WWE's
performers.
On October 23, 2014, a lawsuit was filed in the U. S. District
court for the District of Oregon, entitled "William Albert Haynes
III, on behalf of himself and others similarly situated, v. World
Wrestling Entertainment, Inc." This complaint was amended on
January 30, 2015 and alleged that the company ignored, downplayed,
and/or failed to disclose the risks associated with traumatic brain
injuries suffered by WWE's performers and sought class action
status. On March 31, 2015, the company filed a motion to dismiss
the first amended class action complaint in its entirety or, if not
dismissed, to transfer the lawsuit to the U.S. District court for
the District of Connecticut. Without addressing the merits of the
company's motion to dismiss, the court transferred the case to
Connecticut on June 25, 2015. The plaintiffs filed an objection to
such transfer, which was denied on July 27, 2015.
On January 16, 2015, a second lawsuit was filed in the U.S.
District court for the Eastern District of Pennsylvania, entitled
"Evan Singleton and Vito LoGrasso, individually and on behalf of
all others similarly situated, v. World Wrestling Entertainment,
Inc.", alleging many of the same allegations as Haynes. On February
27, 2015, the company moved to transfer venue to the U.S. District
court for the District of Connecticut due to forum-selection
clauses in the contracts between WWE and the plaintiffs and that
motion was granted on March 23, 2015. The plaintiffs filed an
amended complaint on May 22, 2015 and, following a scheduling
conference in which the court ordered the plaintiffs to cure
various pleading deficiencies, the plaintiffs filed a second
amended complaint on June 15, 2015. On June 29, 2015, WWE moved to
dismiss the second amended complaint in its entirety.
On April 9, 2015, a third lawsuit was filed in the U. S. District
court for the Central District of California, entitled "Russ
McCullough, a/k/a "Big Russ McCullough," Ryan Sakoda, and Matthew
R. Wiese a/k/a "Luther Reigns," individually and on behalf of all
others similarly situated, v. World Wrestling Entertainment, Inc.,"
asserting similar allegations to Haynes. The company again moved to
transfer the lawsuit to Connecticut due to forum-selection clauses
in the contracts between WWE and the plaintiffs, which the
California court granted on July 10, 2015. On September 21, 2015,
the plaintiffs amended this complaint, and, on November 16, 2015,
the company moved to dismiss the amended complaint.
Each of these suits sought unspecified actual, compensatory and
punitive damages and injunctive relief, including ordering medical
monitoring. The Haynes and McCullough cases purported to be class
actions.
On January 15, 2016, the court partially lifted the stay and
permitted discovery only on three issues in the case involving
Singleton and LoGrasso. Such discovery was completed by June 1,
2016. On March 21, 2016, the court issued a memorandum of decision
granting in part and denying in part the company's motions to
dismiss the Haynes, Singleton/LoGrasso, and McCullough lawsuits.
The court granted the company's motions to dismiss the Haynes and
McCullough lawsuits in their entirety and granted the company's
motion to dismiss all claims in the Singleton/LoGrasso lawsuit
except for the claim of fraud by omission.
On July 21, 2016, the court denied the company's motion in the
Singleton/LoGrasso lawsuit and granted in part the company's motion
in the Windham lawsuit. On April 20, 2016, the plaintiffs filed
notices of appeal of the Haynes and McCullough lawsuits. On April
27, 2016, the company moved to dismiss the appeals for lack of
appellate jurisdiction, which motions were granted, and the appeals
were dismissed with leave to appeal upon the resolution of all of
the consolidated cases. The company filed a motion for summary
judgment on the sole remaining claim in the Singleton/LoGrasso
lawsuit, which was granted on March 28, 2018. The company also
filed a motion for judgment on the pleadings against the Windham
defendants.
On September 9, 2020, the Second Circuit issued a summary order,
dismissing the appeals of the sanctions orders and the merits
appeals of the dismissal of all claims in the Haynes, McCullough,
Frazier, and Singleton cases for lack of appellate jurisdiction and
affirming the judgment of the district court on all other claims.
On September 23, 2020, the plaintiffs-appellants filed a petition
for rehearing/rehearing en banc, which was denied on October 15,
2020. On February 24, 2021, the plaintiffs-appellants filed a
petition for writ of certiorari with the U.S. Supreme court. On
March 26, 2021, the company filed an opposition to the petition for
writ of certiorari. On April 26, 2021, the U.S. Supreme court
denied the plaintiffs-appellants' petition for writ of certiorari.
On September 2, 2021, the magistrate judge recommended that fees be
awarded to the company in respect of the company's pending motions
for sanctions in the amount of $312, and on September 30, 2021, the
court adopted that recommendation. On December 24, 2021, Attorney
Konstantine Kyros appealed the sanctions ruling to the Second
Circuit; on December 28, 2021, the company cross-appealed with
respect to the amount of sanctions.
World Wrestling Entertainment Inc. is a motion picture and video
tape production based in Connecticut.
WWE INC: Settles Securities Action with Investors
-------------------------------------------------
World Wrestling Entertainment Inc. disclosed in its Form 10-Q
Annual Report for the fiscal year ended December 31, 2021, filed
with the Securities and Exchange Commission on February 3, 2022,
that on March 8, 2021, the Court granted preliminary approval of a
class action settlement, and on July 1, 2021, the U.S. District
Court for the Southern District of New York granted final approval
of the class action settlement and entered final judgment.
On March 6, 2020, the company along with its Chairman and CEO,
Vince McMahon, and former-WWE officers and directors, Michelle
Wilson and George Barrios, were sued in the U.S. District Court for
the Southern District of New York in a case captioned "City of
Warren Police and Fire Retirement System, individually and on
behalf of all others similarly situated, v. World Wrestling
Entertainment, Inc., Vincent K. McMahon, George A. Barrios, and
Michelle D. Wilson," No. 1:20-cv-02031-JSR. The complaint alleges
that the company and the individual Defendants made materially
false and misleading statements in violation of the Securities
Exchange Act of 1934 regarding WWE's strategic relationship with
the Kingdom of Saudi Arabia. Specifically, the complaint alleges
that various public statements made by the company and the
Individual Defendants were false and misleading because they failed
to disclose certain adverse facts regarding WWE's strategic
relationship with Saudi Arabia that supposedly was known by them
and, as a result, the plaintiff class allegedly purchased WWE stock
at artificially inflated prices.
On March 12, 2020 a nearly-identical lawsuit was filed in the U.S.
District Court for the Southern District of New York captioned
"Paul Szaniawski, individually and on behalf of all others
similarly situated, v. World Wrestling Entertainment, Inc., Vincent
K. McMahon, George A. Barrios, and Michelle D. Wilson," No.
1:20-cv-02223-JSR. This lawsuit was filed as related to the City
of Warren case and was assigned to the same judge handling the City
of Warren case. By Order dated May 12, 2020, the City of Warren and
Szaniawski lawsuits were consolidated for all purposes.
After multiple parties filed motions to be appointed lead plaintiff
for the putative class in the consolidated action, on May 22, 2020,
the Court issued a memorandum order selecting the Firefighters'
Pension System of the City of Kansas City, Missouri to be lead
plaintiff and their attorneys, Labaton Sucharow LLP, to be lead
counsel for the putative class. On May 26, 2020, the company
served Rule 11 motion for sanctions on the attorneys for the City
of Warren Police and Fire Retirement System, the attorneys for Paul
Szaniawski, and Labaton Sucharow LLP. The Rule 11 motion identified
false allegations in the originally filed complaints and was
supported by six declarations from company executives and
third-parties with direct first-hand knowledge of the matters at
issue.
Following service of the Rule 11 motion, the attorneys for the City
of Warren Police and Fire Retirement System and the attorneys for
Paul Szaniawski voluntarily dismissed their complaints before the
expiration of the Rule 11 safe-harbor period. On June 8, 2020, the
Firefighters' Pension System of the City of Kansas City, Missouri
filed a consolidated amended class action complaint. On June 26,
2020, the company moved to dismiss the consolidated amended
complaint in its entirety. The Court held oral argument on the
company's motion to dismiss on July 30, 2020. On August 6, 2020,
the Court denied the company's motion to dismiss. On November 18,
2020, the company entered into a term sheet to settle this action,
subject to notice to the class and preliminary and final approval
by the Court. The settlement includes a full release of all
Defendants in connection with the allegations made in the lawsuit,
and does not contain any admission of liability or admission as to
the validity or truth of any or all allegations or claims by any of
the Defendants. The Term Sheet provided for a settlement payment of
$39,000 (inclusive of all Plaintiffs' attorneys fees and expenses
and settlement costs), which was paid by the company's insurance
carriers. The company believed that resolving the matter is the
right business decision and that it is prudent to end the
protracted and uncertain class action process.
On December 23, 2020, lead plaintiff filed an unopposed motion for
preliminary approval of settlement with the Court.
World Wrestling Entertainment Inc. is a motion picture and video
tape production based in Connecticut.
XILINX INC: Securities Suit Over Merger Deal Voluntarily Dismissed
------------------------------------------------------------------
Advanced Micro Devices, Inc. disclosed in its Form 10K Annual
Report for the fiscal year ended December 25, 2021, filed with the
Securities and Exchange Commission on February 3, 2022, that the
class action lawsuit that was filed against Xilinx, Inc., alleging
that it aided and abetted the Xilinx directors' breach of their
fiduciary duties, was voluntarily dismissed,
On October 26, 2020, Advanced Micro Devices, Inc., its wholly-owned
subsidiary, Thrones Merger Sub, Inc., and Xilinx, Inc. (Xilinx)
entered a definitive agreement in which Advanced Micro Devices will
acquire Xilinx by merging Thrones Merger Sub, Inc. with and into
Xilinx, with Xilinx continuing as the surviving corporation and
becoming a wholly-owned subsidiary of the company. On December 3,
2020, Advanced Micro Devices and Xilinx filed a registration
statement on Form S-4 describing the proposed transaction and other
related matters.
On December 11, 2020, a Xilinx shareholder filed a putative class
action in the New York State Supreme Court, New York County,
regarding the Proposed Transaction. "Nunez v. Xilinx," Case No.
656971/2020 (N.Y. Sup.). The lawsuit alleges that the Board of
Directors of Xilinx breached their fiduciary duties to Xilinx
shareholders in connection with the proposed transaction by
allegedly failing to obtain fair, adequate and maximum
consideration for Xilinx shareholders in connection with the
proposed transaction and by not disclosing certain material
information about the proposed transaction in the registration
statement.
The lawsuit asserts a single claim against the company, alleging
that it aided and abetted the Xilinx directors' breach of their
fiduciary duties. The lawsuit seeks to enjoin or rescind any
transaction with Xilinx as well as certain other equitable relief,
unspecified damages and attorneys' fees and costs.
On March 22, 2021, the Nunez complaint was voluntarily dismissed.
Advanced Micro Devices, Inc. is a semiconductor company based in
California.
*********
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