/raid1/www/Hosts/bankrupt/CAR_Public/220224.mbx
C L A S S A C T I O N R E P O R T E R
Thursday, February 24, 2022, Vol. 24, No. 34
Headlines
A&W CONCENTRATE: Seeks to Decertify Class in Sharpe Suit
A1 ABSOLUTE: Telephone Status Conference Set for March 3 in Davis
ACE AMERICAN: Joint Bid to Set Class Certification Briefing Filed
AGA SERVICE: Eighth Cir. Affirms Dismissal of Bauer Insurance Suit
ALIBABA GROUP: Salem Gharsalli Appointed as Lead Plaintiff
AMAZON.COM: Order Setting Class Cert. Dates Entered in Street
AMERICAN AIRLINES: Ismail Labor Code Suit Goes to C.D. California
AMERICAN GENERAL: LSIMC Seeks to Certify Class of Policy Owners
ANDERSON COUNTY, TN: Court Nixes Venue Motion in Accord Class Suit
APPLE INC: Faces Class Action Over Alleged "Jelly Scroll" Defect
APPLE INC: Faces Suit Over CEO's iPhone Demand Comments in China
AT&T INC: Time Extension for Class Cert. Deadlines Sought in Scott
BARNSTORMERS BASKETBALL: Seeks to Amend Class Notice Order
BELLRING BRANDS: Faces Consumer Class Actions in Various Courts
BEND MEMORIAL: Discovery & PTO Dates Extended in Fulkerson Suit
BIOGEN INC: Bragar Eagel & Squire Reminds of April 8 Deadline
C.I. LOBSTER: Pagan Seeks Conditional Status of Collective Action
CASINO QUEEN: Scheduling and Discovery Order Entered in Hensiek
CHURCHILL CORPORATE: Order on General Pretrial Management Entered
CITIZENS BANK: Court Narrows Claims in Chirchir's 1st Amended Suit
CLARIVATE PLC: Kessler Topaz Reminds of March 25 Deadline
COASTAL DRILLING: Ford Sues Over Unpaid Overtime for Pipe Fitters
COMPREHENSIVE HEALTHCARE: Class Cert. Briefing Schedule Revised
COVANTA PLYMOUTH: Lloyd Bid for Class Certification Nixed
CRST INT'L: Cervantes Seeks Class Cert. Briefing Deadline Extension
CVS HEALTH: Unredacted Version of Renewed Class Cert Bid Sealed
DELOITTE & TOUCHE: Liable to Stockholders' Losses, Formby Claims
DENTAL EQUITIES: Review of Class Certification in Scoma Suit Nixed
DIGNITY HEALTH: Class Certification Hearing Continued to March 8
DNC PARKS: Court Narrows Claims in Perez Class Suit
EAGLE BANCORP: Class Action Settlement OK'd in Stein Class Suit
EHANG HOLDINGS: Sergiu Rata Appointed as Lead Plaintiff
FAMILY SOLUTIONS: Can't File Interlocutory Appeal in Stephenson
FLEX LTD: Dismissal of California Securities Class Suit Upheld
FOUNDATION ENERGY: May 27 Extension for Class Cert Filing Sought
FOUR SEASONS: Faces Gonzalez Wage-and-Hour Suit in E.D.N.Y.
GOOGLE LLC: Stipulation Extending Deadline to File Reply Filed
GT MARKETING: Loses Bid to Dismiss Pastore Suit
HALSTED FINANCIAL: Wins Bid to Compel Arbitration in Shaffer Suit
HARVARD UNIVERSITY: Graduate Student Workers File Title IX Suit
INTERNATIONAL BUSINESS: Age Discrimination Class Action Pending
KPMG LLP: Order Regarding General Pretrial Management Entered
KUCOIN: S.D. New York Certifies TOMO Token Class in Williams Suit
LANNETT COMPANY: Securities Suit Shelved Pending Appeal
LIBERTY MUTUAL: Parties' Counsel to Confer on Penegar Case Status
LIFE CARE: Atkinson Wage-and-Hour Suit Removed to W.D. Washington
LOS ANGELES, CA: Concerns Raised Over DWP Class Action Settlement
MARQUE OF BRANDS: Abreu Files ADA Suit in S.D. New York
MARSH & MCLENNAN: Bohank Appeals Dismissal of Data Breach Suit
MATCH GROUP: Won't Charge Older Users More for Tinder+ Amid Lawsuit
MAXIMUS INC: Order on Class Cert. Deadline Entered in Brickman
MAYFLOWER TRANSIT: Class Settlement in Greenly Gets Initial Nod
MCKESSON INC: Pending Bid to Stay Dismissed as Moot in Nathan
MCMC LLC: Mauthe Seeks to Extend Reply Brief Date to March 14
MDL 2966: Two Expert Witnesses in Xyrem Antitrust Suit Disqualified
MDL 2968: Final Judgment Entered in Covid-19 Travel Insurance Suit
MEDICAL LIABILITY: Order Dismissing Castagna Class Suit Affirmed
MEDNAX SERVICES: Perez FCRA Suit Removed to S.D. Florida
MONMOUTH REAL ESTATE: Faces Fiduciary Breach Charges Over Merger
MYOSTORM LLC: Paguada Files ADA Suit in S.D. New York
NATIONAL FOOTBALL: Biden Comments on Hiring Practices Amid Lawsuit
NATIONAL FOOTBALL: Flores to Amend Class Action Over Racism
NESTLE HEALTHCARE: Weekes Files ADA Suit in S.D. New York
NEW YORK, NY: Mayor Issues Emergency Executive Order 35
NMCI MEDICAL: Kulik Suit Seeks Conditional Class Certification
NORFOLK SOUTHERN: Various Antitrust Cases Consolidated in DC
NORTEK SECURITY: Landy Files TCPA Suit in S.D. New York
NORTHSTAR LOCATION: Sao Files TCPA Suit in M.D. North Carolina
OTIS WORLD CORP: Faces Labor Complaint in Geraud Action
OUTDOOR GEAR EXCHANGE: Weekes Files ADA Suit in S.D. New York
PEOPLECONNECT INC: Camacho Files Suit in S.D. California
PERDUE FOODS: Paguada Files ADA Suit in S.D. New York
PHH MORTGAGE: S.D. Florida Narrows Claims in Salter Class Suit
PHILLIPS ENTERTAINMENT: Weekes Files ADA Suit in S.D. New York
PORTFOLIO RECOVERY: Miller FDCPA Suit Removed to D. New Jersey
PROBUILD COMPANY: Gonzalez FCRA Suit Removed to C.D. California
PROFESSIONAL BUSINESS: Judge Recommends Dismissal of Class Action
RAGAN & RAGAN: Lloyd Files FDCPA Suit in N.D. Georgia
REMRISE INC: Scheduling Order Entered in Tavarez Class Suit
RESURGENT CAPITAL: Bid for More Time to Complete Discovery OK'd
RETAILERX INC: Weekes Files ADA Suit in S.D. New York
REWIND COMPANY: Fischler Files ADA Suit in E.D. New York
RITE AID: Lemus Files Suit in C.D. California
ROBBINS PROPERTY: Perez Suit Removed to S.D. Florida
SEA MAR COMMUNITY HEALTH: Barnes Suit Removed to W.D. Washington
SEA MAR COMMUNITY HEALTH: Hall Suit Removed to W.D. Washington
SEA MAR COMMUNITY HEALTH: Maynor Suit Removed to W.D. Washington
SEA MAR COMMUNITY HEALTH: Summers Suit Removed to W.D. Washington
SEA MAR COMMUNITY HEALTH: Waliany Suit Removed to W.D. Washington
SEAWORLD PARKS: Jones Labor Suit Removed to S.D. California
SEND A CAKE: Weekes Files ADA Suit in S.D. New York
SENIOR LIFE: Bid to Dismiss Miholich Action Tossed
SERVICE KING: Moniz Bid for Class Cert Tossed w/o Prejudice
SHATTUCK LABS: Bragar Eagel & Squire Reminds of April 1 Deadline
SIGNODE INDUSTRIAL: Ruling to Produce Docs in Stone Suit Affirmed
SMITH & WESSON: Stallworth Suit Removed to N.D. Illinois
SOCLEAN INC: Borland Suit Transferred to W.D. Pennsylvania
SOCLEAN INC: Seicol Suit Transferred to W.D. Pennsylvania
SOLOMID CORP: Any Bid for Class Cert. Must be Filed by April 29
STATE STREET: Sanction of Lieff in Arkansas Teacher Suit Upheld
SYMANTEC CORP: Settlement in SEB Suit Gets Final Nod
T-MOBILE USA: Achermann Suit Removed to N.D. California
TAL EDUCATION: Kessler Topaz Reminds of April 5 Deadline
TEP ROCKY: Class Certification Bid Due April 8 in Jolley Suit
TESLA INC: Faces DFEH Class Suit Over Alleged Race Discrimination
TOMORROW ENERGY: Shannon Sues Over Unpaid Minimum, Overtime Wages
TRANSWORLD SYSTEMS: Hoffman Class Cert Bid Renoted to April 15
TRIVING BRANDS: Wilson Suit Transferred to D. Connecticut
TYSON FOODS: Court Narrows Claims in Price-Rigging Suit
TYSON FOODS: Faces Suits Over Antitrust Laws Violation
TYSON FOODS: Settlement Deal in Chicken Grower Suit Gets Initial OK
VENUS OVER MANHATTAN: Miller Files ADA Suit in S.D. New York
VERIZON CONNECT: Must Provide Responses to Interrogatory in Hiram
VIRGINIA: Unemployment Insurance Reforms Advance Following Suit
WAL-MART ASSOCIATES: Bid to Dismiss Nelson Suit Granted in Part
WASTE CONNECTIONS: Scheduling Order & Pretrial Dates Amended
WATERFIELD DESIGNS: Weekes Files ADA Suit in S.D. New York
WENTZVILLE R-IV: Weekes Files Suit in E.D. Missouri
WILSON LOGISTICS: Ruff Wage-and-Hour Suit Goes to N.D. California
WORK WARM: Paguada Files ADA Suit in S.D. New York
WRIGHT STUFF: Hanyzkiewicz Files ADA Suit in E.D. New York
[*] Class Action Lead Plaintiff Warns About Online Fraudsters
*********
A&W CONCENTRATE: Seeks to Decertify Class in Sharpe Suit
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In the class action lawsuit captioned as Lashawn Sharpe and Jim
Castoro, individually and on behalf of all others similarly
situated, v. A&W Concentrate Company and Keurig Dr Pepper Inc.,
Case No. 1:19-cv-00768-BMC (E.D.N.Y.), the Defendant asks the Court
to enter an order pursuant to Fed. R. Civ. P. 23, decertifying the
class of:
"All persons who purchased either A&W Root Beer or A&W Cream
Soda in New York between February 7, 2016, and March 1,
2021."
The Class excludes the judge or magistrate assigned to this
case; Defendants; any entity in which Defendants have a
controlling interest; Defendants’ officers, directors, legal
representatives, successors, and assigns; and persons who
purchased A&W Root Beer or A&W Cream Soda for the purpose of
resale.
A&W manufactures and sells alcoholic beverages.
Keurig Dr Pepper produces and distributes hot and cold beverages.
A copy of the Defendants' motion dated Feb. 10, 2021 is available
from PacerMonitor.com at https://bit.ly/3rW55O4 at no extra
charge.[CC]
The Defendants are represented by:
Creighton R. Magid, Esq.
Elizabeth Rozon Baksh, Esq.
DORSEY & WHITNEY LLP
1401 New York Avenue, N.W., Suite 900
Washington, D.C. 20005
Telephone: (202) 442-3555
Facsimile: (202) 442-3199
E-mail: magid.chip@dorsey.com
baksh.elizabeth@dorsey.com
A1 ABSOLUTE: Telephone Status Conference Set for March 3 in Davis
-----------------------------------------------------------------
In the class action lawsuit captioned as LAVELLE DAVIS on behalf of
herself and all those similarly situated, v. A1 ABSOLUTE BEST CARE,
L.L.C., ET AL., Case No. 2:21-cv-00761-JCZ-DMD (E.D. La.), the Hon.
Judge Jay C. Zainey entered an order setting telephone status
conference for Thursday, March 3, 2022, at 11:00 a.m.
The Court is aware that the deadline to file a motion for class
certification is February 28, 2022. However, conflicts in the
Court's schedule necessitates a March 3, 2022, status conference
date. Therefore, out of an abundance of caution, the deadline to
file a motion for class certification is stayed pending the
telephone status conference with the Court.
A1 Absolute is a hospital & health care company.
A copy of the Court's order dated Feb. 10, 2021 is available from
PacerMonitor.com at https://bit.ly/3rTRDKE at no extra charge.[CC]
ACE AMERICAN: Joint Bid to Set Class Certification Briefing Filed
-----------------------------------------------------------------
In the class action lawsuit captioned as MSP RECOVERY CLAIMS,
SERIES LLC, v. ACE AMERICAN INSURANCE COMPANY, Case No.
1:17-cv-23749-PAS (S.D. Cal.), the Parties jointly move the Court
to establish a schedule for class certification briefing and class
certification expert disclosures and state as follows:
1. Pursuant to the Order Following Second Discovery Plan
Hearing and Amended Class Discovery Schedule (the
"Order"), the Plaintiff's motion for class certification
is due to be filed by February 25, 2022. The Order left
open the issue of how class certification expert
disclosures would be governed.
2. The Parties have conferred and have agreed to a proposed
class certification briefing schedule and expert protocol,
subject to approval by the Court.
3. The Parties propose a schedule as follows:
The Plaintiff will file its class Feb. 25, 2022
certification motion and include
the reports of any class certification
experts with the motion (and the
Parties will agree to mutually-agreeable
dates for the depositions of
Plaintiff’s class certification
experts to occur by March 7, 2022):
The Defendant will file its March 28, 2022
opposition to the class certification
motion and include the reports of any
class certification experts with the
opposition (and the Parties will agree
to a mutually-agreeable date (or dates)
for the deposition(s) of Defendant's
class certification expert(s)):
The Plaintiff will file its reply April 18, 2022
to Defendant’s opposition:
American Insurance Company operates as an insurance company.
A copy of the Parties' motion order dated Feb. 10, 2021 is
available from PacerMonitor.com at https://bit.ly/3gQgSak at no
extra charge.[CC]
AGA SERVICE: Eighth Cir. Affirms Dismissal of Bauer Insurance Suit
------------------------------------------------------------------
In the case, Logan Bauer, individually and on behalf of all others
similarly situated, Plaintiff-Appellant v. AGA Service Company,
doing business as Allianz Global Assistance; Jefferson Insurance
Company, Defendants-Appellees, Case No. 20-3711 (8th Cir.), the
U.S. Court of Appeals for the Eighth Circuit affirmed the district
court's dismissal of the Plaintiff's lawsuit for failure to state a
claim.
I. Background
Bauer booked a round-trip flight and bought two corresponding
travel insurance policies with AGA Service Company and Jefferson
Insurance Company. Bauer later cancelled the flight because of
government-imposed COVID-19 stay-at-home orders. He then filed a
claim for insurance proceeds, but the insurers denied his claim
under one policy, and Bauer alleged in his complaint that the
insurers were also likely to deny his claim as to the other policy.
Seeking to determine his rights and to obtain recovery for himself
and others in his situation, Bauer sued the insurers in federal
court.
In January 2020, Bauer booked a round-trip flight and bought two
corresponding travel insurance policies with the insurers -- one
for the flight there and the other for the flight back. The parties
agree that the relevant language of both insurance policies was
identical. Both policies covered flight cancellations for
quarantines. The policies define a quarantine as "mandatory
confinement, intended to stop the spread of a contagious disease to
which you or a traveling companion may have been exposed."
After booking the flight but before Bauer's trip, state and local
government officials issued stay-at-home orders to slow the spread
of COVID-19, directing people to cease all non-essential
activities, including travel. Though Bauer did not allege he
contracted COVID-19, he alleged he cancelled his flight because of
the stay-at-home orders. Bauer sought coverage for the cancelled
flight under the insurance policies. The insurers denied Bauer's
claim under one policy, and because the policies had the same
relevant provisions and his claim involved the same underlying
facts, Bauer alleged in his complaint that the insurers were likely
to also deny his claim under the other policy. The insurers
asserted that, among other reasons, Bauer's cancellation was not
covered under the policies because the policies exclude coverage
for losses caused by an epidemic.
Mr. Bauer brought a class action complaint based on diversity
jurisdiction against the insurers, seeking to represent a
nationwide class of people whose trips were cancelled because of
COVID-19 stay-at-home orders and who were not paid by these
insurers. He alleged the insurers both breached their contracts and
committed bad faith refusal to pay. He also sought a declaratory
judgment stating the policies provide coverage for cancelled trips
because of the stay-at-home orders.
The insurers moved to dismiss Bauer's complaint in its entirety for
failure to state a claim and for lack of personal jurisdiction.
They also moved to strike non-resident insureds and policyholders
from the proposed class. The district court, persuaded by the
insurers' argument the policies excluded coverage from any loss
resulting from an epidemic, granted the insurers' motion to dismiss
all Bauer's claims under Federal Rule of Civil Procedure 12(b)(6).
With the complaint dismissed, the district court did not address
the insurers' other motions. Bauer appeals the dismissal.
II. Analysis
In the appeal, the insurers do not dispute that Bauer was
quarantined as required for coverage under the policies. But they
argue that Bauer's specific quarantine fell under the policies'
epidemic exclusion. In Missouri, "it is the insured's burden to
establish coverage under the policy and the insurer's burden to
show that an exclusion to coverage applies." "Missouri courts
strictly construe exclusionary clauses against the insurer."
In the case, the Eighth Circuit holds that the insurers meet their
burden in showing the exclusion applies. It concludes that an
ordinary person of average understanding reading the policy terms
would deduce that WHO "recognized" COVID-19 as either a pandemic or
an epidemic by including COVID-19 on its list of pandemic or
epidemic diseases. This requirement in the policy is satisfied. It
also concludes both that Bauer's flight cancellation resulted from
the COVID-19 epidemic and that the epidemic affected Bauer.
As Mr. Bauer admits in his complaint, the many stay-at-home orders
were issued to slow the spread of COVID-19, causing him to
quarantine and cancel his trip. The orders, while a reaction to the
epidemic rather than the epidemic itself, are not so unrelated or
independent that we can conclude the COVID-19 epidemic did not
affect Bauer. Nor can the Eighth Circuit conclude the Bauer's
flight cancellation did not result from the COVID-19 epidemic.
The Eighth Circuit reject Bauer's assertion that the policies
required him to have been infected with COVID-19 to be affected by
it. While infection is certainly a kind of effect, the term
"affect" is not bound to that narrow scope. Indeed, when the
contractual parties elsewhere sought to condition a provision on a
requirement that an individual become ill, they did so expressly.
For similar reasons rejects Bauer's argument that Missouri's
concurrent proximate cause rule applies. The rule "states that an
insurance policy will be construed to provide coverage where an
injury was proximately caused by two events -- even if one of these
events was subject to an exclusion clause -- if the differing
allegations of causation are independent and distinct. For this
"rule to apply, the injury must have resulted from a covered cause
that is truly independent and distinct from the excluded cause."
Bauer asks the Eighth Circuit to conclude that his quarantine,
which arose from the stay-at-home orders, was truly independent and
distinct from the COVID-19 epidemic. The Eighth Circuit disagrees
holding that the concurrent proximate cause rule does not apply in
the case.
III. Conclusion
Mr. Bauer's flight cancellation caused by the government's
stay-at-home orders fell under his travel insurance policies'
epidemic exclusion. The Eighth Circuit, thus, affirmed the district
court's judgment dismissing Bauer's complaint for failure to state
a claim in its entirety.
A full-text copy of the Court's Feb. 9, 2022 Order is available at
https://tinyurl.com/2bnb8pet from Leagle.com.
ALIBABA GROUP: Salem Gharsalli Appointed as Lead Plaintiff
----------------------------------------------------------
In the class action lawsuit captioned as LAURA CICCARELLO,
individually and on behalf of others similarly situated, v. ALIBABA
GROUP HOLDING LIMITED, DANIEL : ZHANG, MAGGIE WU, Case No.
1:20-cv-09568-GBD-JW (S.D.N.Y.), the Hon. Judge George B. Daniels
entered an order:
1. denying Makadia/Tongbiao Group and Pension Fund's motions
for appointment as lead plaintiff and lead counsel; and
2. granting Gharsalli's motion for appointment as lead
plaintiff and approval of Glancy Prongay & Murray LLP as
lead counsel.
Before this Court is a consolidated securities fraud class action
suit against the Defendants. The Plaintiffs in all cases purchased
shares of Alibaba and allege that Defendants made materially false
and/or misleading statements, as well as failed to disclose
material adverse facts about the Company's business, operations,
and prospects.
Putative class members Salem Gharsalli Dineshchandra Makadia and
Yan Tongbiao, and 1199 SEIU Health Care Employees Pension Fund (the
"Pension Fund") each filed motions for appointment as lead
plaintiff and to appoint their attorneys as lead counsel.
Alibaba is the largest e-retailer in the world and operates, among
other online marketplaces, Tmall, an online and mobile commerce
platform. Alibaba also owns a 33% equity interest in Ant Small and
Micro Financial Services Group Co., Ltd. ("Ant Group"), a financial
technology company best known for operating Alipay, a mobile and
online payment platform.
A copy of the Court's order dated Feb. 10, 2021 is available from
PacerMonitor.com at https://bit.ly/3H25imZ at no extra charge.[CC]
AMAZON.COM: Order Setting Class Cert. Dates Entered in Street
-------------------------------------------------------------
In the class action lawsuit captioned as MARY STREET et al., v.
AMAZON.COM SERVICES INC, et al., Case No. 2:21-cv-00912-BJR (W.D.
Wash.), the Hon. Judge Barbara J. Rothstein entered an order
setting trial date and related dates as follows:
-- Jury trial date: June 12, 2023
-- Deadline for joining additional March 10, 2022
parties:
-- Deadline for filing amended March 21, 2022
pleadings:
-- Reports from expert witness March 10, 2023
under FRCP 26(a)(2) due:
-- Discovery completed by: December 16, 2022
-- All dispositive motions must January 16, 2023
be filed by:
-- All motions in limine must be May 8, 2023
filed by:
-- Joint Pretrial Statement: May 15, 2023
-- Pretrial conference May 30, 2023
These dates are set at the direction of the Court after reviewing
the joint status report and discovery plan submitted by the
parties. All other dates are specified in the Local Civil Rules
and/or the Court's Standing Order in all civil cases. If any of the
dates identified in this Order, the Standing Order, or the Local
Civil Rules fall on a weekend or federal holiday, the act or event
shall be performed on the next business day. These are firm dates
that can be changed only by order of the Court, not by agreement of
counsel or the parties, Judge Rothstein says.
Amazon Services LLC offers many of the Web service platforms that
are Amazon offers. The Company was founded in 2006 and is based in
Seattle, Washington.
A copy of the Court's order dated Feb. 10, 2021 is available from
PacerMonitor.com at https://bit.ly/3gVdF9E at no extra charge.[CC]
AMERICAN AIRLINES: Ismail Labor Code Suit Goes to C.D. California
-----------------------------------------------------------------
The case styled ESSAMELDIN ISMAIL, individually and on behalf of
all others similarly situated v. AMERICAN AIRLINES, INC. and DOES 1
through 50, inclusive, Case No. 21STCV37790, was removed from the
Superior Court of the State of California, County of Los Angeles,
to the U.S. District Court for the Central District of California
on February 17, 2022.
The Clerk of Court for the Central District of California assigned
Case No. 2:22-cv-01111 to the proceeding.
The case arises from the Defendant's alleged violations of the
California Labor Code and the California's Business and Professions
Code including failure to provide meal periods, failure to provide
rest periods, failure to pay overtime wages at the correct rate of
pay, failure to pay sick leave at the correct rate of pay, and
unfair competition.
American Airlines, Inc. is an airline company, headquartered in
Fort Worth, Texas. [BN]
The Defendant is represented by:
Adam P. Kohsweeney, Esq.
O'MELVENY & MYERS LLP
Two Embarcadero Center, 28th Floor
San Francisco, CA 94111-3823
Telephone: (415) 984-8700
Facsimile: (415) 984-8701
E-mail: akohsweeney@omm.com
- and –
Kelly S. Wood, Esq.
O'MELVENY & MYERS LLP
610 Newport Center Drive, 17th Floor
Newport Beach, CA 92660
Telephone: (949) 823-6900
Facsimile: (949) 823-6994
E-mail: kwood@omm.com
AMERICAN GENERAL: LSIMC Seeks to Certify Class of Policy Owners
---------------------------------------------------------------
In the class action lawsuit captioned as LSIMC, LLC, on behalf of
itself and all others similarly situated, v. AMERICAN GENERAL LIFE
INSURANCE COMPANY, Case No. 2:20-cv-11518-SVW-PVC (C.D. Cal.), the
Plaintiff asks the Court to enter an order granting class
certification, appointing Plaintiff as class representative, and
appointing Susman Godfrey, L.L.P. as class counsel for the
following "Investment Earnings Only California Class":
"All current and former owners of life insurance policies who
have received credited interest on policies issued by
American General Life Insurance Company, or its predecessors,
in the State of California on policy forms that provide that
any redetermination of interest rates will be based "only on
expectations of future investment earnings" and that have a
guaranteed minimum annual effective interest rate of 3.00%."
Excluded from the class are (a) Defendant, its officers and
directors, members of their immediate families, and the
heirs, successors, or assigns of any of the foregoing; (b)
all judges presiding in this case and their chambers staff;
and (c) all counsel of record in this case.
LSIMC LLC covers insurance services.
American General operates as an insurance company.
A copy of the Plaintiff's motion to certify class dated Feb. 10,
2021 is available from PacerMonitor.com at https://bit.ly/3JATxpk
at no extra charge.[CC]
The Plaintiff is represented by:
Steven Sklaver, Esq.
Glenn C. Bridgman, Esq.
Lear Jiang, Esq.
SUSMAN GODFREY L.L.P.
1900 Avenue of the Stars, 14th Floor
Los Angeles, CA 90067
Telephone: (310) 789-3100
Facsimile: (310) 789-3150
E-mail: ssklaver@susmangodfrey.com
gbridgman@susmangodfrey.com
ljiang@susmangodfrey.com
- and -
Seth Ard, Esq.
Ryan C. Kirkpatrick, Esq.
SUSMAN GODFREY L.L.P.
1301 Avenue of the Americas, 32nd Floor
New York, NY 10019
Telephone: (212) 336-8330
Facsimile: (212) 336-8340
E-mail: sard@susmangodfrey.com
rkirkpatrick@susmangodfrey.com
ANDERSON COUNTY, TN: Court Nixes Venue Motion in Accord Class Suit
------------------------------------------------------------------
In the case, GARY ACCORD, individually and on behalf of all others
similarly situated, Plaintiffs v. ANDERSON COUNTY, TENNESSEE, et
al., Defendants, Case No. 3:21-cv-00077 (M.D. Tenn.), Judge Eli
Richardson of the U.S. District Court for the Middle District of
Tennessee, Nashville Division, denied Defendant Cocke County's
motion to assert the alternative theory that venue is now improper
such that the action should be dismissed or transferred.
I. Background
On June 29, 2018, Plaintiff Accord was arrested by Tennessee
Highway Patrolman Paul Kilday in Cocke County, Tennessee. Kilday
prepared a complaint-affidavit on a State of Tennessee Uniform
Citation Form. The Plaintiff then was prosecuted using the Uniform
Citation Form/Affidavit of Complaint as a charging instrument. He
was charged with a DUI, which was eventually reduced to reckless
endangerment. He was sentenced to 11 months and 29 days in jail
with a suspended sentence.
The Plaintiff filed the present case on Feb. 1, 2021, as a class
action complaint against every county in Tennessee (but no one
else). Thereafter, he filed an Amended Complaint against the same
Defendants, therein asserting the following four counts,
respectively: (1) violations of the Fourth, Sixth and Fourteenth
Amendments; (2) substantive due process violations under the Sixth
and Fourteenth Amendment; (3) false imprisonment; and (4) false
light invasion of privacy.
Various Defendants filed motions to dismiss, including the Rule
12(b)(6) motion, which was filed collectively by most of the
Defendants, including Cocke County, and asserted several different
purported bases for dismissal. Ultimately, during its review of
some of these motions, the Court determined that the Plaintiff had
failed to establish standing to bring a claim against any Defendant
except Cocke County. Accordingly, it ordered that all the
Defendants except Cocke County be dismissed (and administratively
terminated as parties)3 and that the Rule 12(b)(6) motion remain
pending only as to Cocke County.
Cocke County, the only remaining Defendant, subsequently filed a
purported "supplement" to its Rule 12(b)(6) motion -- i.e., the
Venue motion -- to request dismissal under Rule 12(b)(3) based on
allegedly improper venue, or alternatively, a transfer of venue to
the Eastern District of Tennessee pursuant to 28 U.S.C. Section
1406(a).
Judge Richardson treats this, not as a supplement, but as a
separately filed additional motion on venue.
II. Discussion
The Amended Complaint states that "venue is proper within the
Middle District of Tennessee pursuant to 28 U.S.C. Section 1391 (b)
(1)." Under Section 1391(b), venue is appropriate under one of
three scenarios: (1) a judicial district in which any defendant
resides, if all defendants are residents of the State in which the
district is located; (2) a judicial district in which a substantial
part of the events or omissions giving rise to the claim occurred,
or a substantial part of property that is the subject of the action
is situated; or (3) if there is no district in which an action may
otherwise be brought as provided in this section, any judicial
district in which any defendant is subject to the court's personal
jurisdiction with respect to such action.
In its supplement to the Motion, Cocke County argues that "venue is
no longer proper as Cocke County is located in the judicial
district for the Eastern District of Tennessee rather than the
Middle District of Tennessee."
Judge Richardson finds that the argument fails to consider Section
1391(c)(2), which addresses residency for venue purposes for
defendants (like Cocke County) that are not natural persons. It is
not disputed that the Middle District of Tennessee has personal
jurisdiction over Cocke County, and therefore under 28 U.S.C.
Section 1391(c)(2) Cocke County is properly deemed a resident of
the Middle District (as well as the Eastern District and, for that
matter, the Western District) for venue purposes, including for
purposes of applying Section 1391(b).
Even assuming arguendo that the Court should make a venue
determination under Section 1391(b) based on the residence of Cocke
County only and not all of the original Defendants (the kind of
thing some courts have been known to do)6, Judge Richardson holds
that venue in the case is proper in the Middle District of
Tennessee pursuant to 28 U.S.C. Section 1391(b)(1) as Cocke County
technically resides in the Middle District of Tennessee. For that
reason, he denies Cock County's motion to dismiss for improper
venue under 28 U.S.C. Section 1406(a).
Nonetheless, a district court is empowered to transfer a civil
action to another appropriate district sua sponte under 28 U.S.C.
Section 1404(a) "for the convenience of and witnesses." But the
court should first provide the parties with notice of this
consideration and an "opportunity to be heard on the matter."
It appears to Judge Richardson that the Eastern District of
Tennessee may very well be a more appropriate venue for the case as
it proceeds. All current parties to the case reside in the Eastern
District, specifically Cocke County, and based on the relevant
facts alleged in the Amended Complaint, it appears that the
majority of evidence would be found within Cocke County. For that
reason, Judge Richardson is considering sua sponte transferring the
case under 28 U.S.C. Section 1404(a) and will make its final
determination on whether transfer is appropriate after the parties
are provided an opportunity to share their views on the matter.
III. Conclusion
Judge Richardson concludes that the district is not an improper
venue, but he strikes the Court as likely far from the best venue.
Accordingly, and for the reasons further discussed, he denied
Defendant Cocke County's Venue motion.
As the Court is instead considering sua sponte transferring the
case to the Eastern District of Tennessee under 28 U.S.C. Section
1404(a), each party may fil a notice of its position (and the basis
therefor) regarding the potential transfer of the case to the
Eastern District of Tennessee.
Cocke County's Rule 12(b)(6) motion will remain pending until the
Court has reached a decision on whether to transfer the action sua
sponte. If the Court does not decide to transfer this case to the
Eastern District, it will proceed with consideration of the
Defendant's Rule 12(b)(6) motion.
A full-text copy of the Court's Feb. 9, 2022 Order is available at
https://tinyurl.com/2p99t332 from Leagle.com.
APPLE INC: Faces Class Action Over Alleged "Jelly Scroll" Defect
----------------------------------------------------------------
Colors of India reports that a California resident has filed a
class-action lawsuit against Apple, accusing them of knowingly
selling defective products. According to the court documents, the
company is being questioned about a so-called "jelly scroll" defect
that is present on the 6th generation iPad mini.
The iPad Mini 6 debuted on September 14, 2021, following which,
many users notice the defect when vertically scrolling through
text-based content such as webpages or documents. The effect made
it look as if one half of the display is responding faster than the
other -- or more specifically, the left side of the screen lagged
behind, causing a tilting effect.
Plaintiff Christopher Bryan claims that the LCD display is prone to
"screen tearing which can make images or text on one side of the
screen appear to be tilted at a downward angle because of
incongruity in refresh rates." It is worth noting that Apple has
acknowledged this defect, though they have continued to sell the
product in said state, claiming it is normal.
The onslaught of negative reviews prompted tech journalist iFixit
to tear down the tablet to figure out the source of the defect.
Turns out, the iPad Mini 6 has a controller board that is mounted
vertically on the left-hand side of the device. In contrast, the
iPad Air has the same board fitted on the top end of the tablet.
In September, an Apple spokesperson told Ars Technica that the
jelly scroll effect is normal behaviour for LCD panels. The screen
is designed to refresh line by line, causing a slight delay between
the lines at the top and the ones coming up.
Plaintiff brings this concern individually and on behalf of others
who suffered similar issues with the product -- even after going
through the company's warranty policy. [GN]
APPLE INC: Faces Suit Over CEO's iPhone Demand Comments in China
----------------------------------------------------------------
Malcom Owen, writing for Apple Insider, reports that a lawsuit
brought against Apple by an English council over comments made by
Tim Cook about iPhone demand in China has been granted class-action
status.
A group of shareholders led by the UK's Norfolk County Council has
succeeded in converting its lawsuit against Apple to a class action
version. The move opens the lawsuit up to any affected shareholder,
and potentially raises the stakes for the iPhone maker.
The lawsuit deals with commentary by Cook during the November 2018
earnings call, in that the CEO said Apple was seeing sales pressure
in some markets. However, Cook went on to state "I would not put
China in that category.
In 2019, Apple revised its revenue guidance prediction down because
of lower iPhone sales in China. Shareholders, including Norfolk
County Council, believe the revised guidance was too late, and that
Apple should've foreseen the issue.
After being informed in November 2020 that the shareholders could
bring a proposed class-action suit over accusations the company
concealed falling sales demand, the group's proposal was granted,
reports The Telegraph.
Judge Yvonne Gonzalez-Rogers advised Apple had failed to dismiss
the council's efforts to turn the lawsuit into a class-action suit,
referring to Apple's arguments on the matter as "distortions."
Norfolk County Council is involved as it runs the Norfolk Pension
Fund, valued at multiple billions of pounds. In the original
lawsuit, it was claimed the fund lost close to $1 million over the
comments.
The change to a class action suit does more than enable more
shareholders to join in against Apple, as it also reduces the
standard of proof required by claimants. Under a "presumption of
reliance," the council wouldn't need to demonstrate that it made
trading decisions after hearing Cook's analyst call comments.
According to Apple, Cook's comments were a statement of opinion,
and therefore protected. The claim "fails to plead any actionably
false or misleading statement." [GN]
AT&T INC: Time Extension for Class Cert. Deadlines Sought in Scott
------------------------------------------------------------------
In the class action lawsuit captioned as Timothy Scott, Patricia
Gilchrist, Karen Fisher, Helen Maldonado-Valtierra, Judy Duff, John
Griffin, Kenneth Rhodes, Judy Dougherty, John Kelly, Richard
Walshon, and Dan Koval, on behalf of themselves and all others
similarly situated, v. AT&T Inc., AT&T Services, Inc. and the AT&T
Pension Benefit Plan, Case No. 3:20-cv-07094-JD (N.D. Cal.), the
Plaintiffs ask the Court to enter an order granting an extension of
the following deadlines:
Current Proposed
Deadline Deadline
-- Rebuttal Expert March 29, 2022 April 12, 2022
Disclosures:
-- Expert Discovery Cut-off: April 29, 2022 May 13, 2022
-- Motion for Class May 23, 2022 June 6, 2022
Certification:
-- Opposition to Class June 20, 2022 July 5, 2022
Certification:
-- Class Certification Reply July 18, 2022 Aug. 1, 2022
-- Class Certification Aug. 11, 2022 TBD
Hearing:
AT&T is an American multinational conglomerate holding company that
is Delaware-registered but headquartered at Whitacre Tower in
Downtown Dallas, Texas.
A copy of the Plaintiffs' dated Feb. 10, 2021 is available from
PacerMonitor.com at https://bit.ly/3oUX2Py at no extra charge.[CC]
The Plaintiffs are represented by:
Michelle C. Yau, Esq.
Mary Bortscheller, Esq.
Daniel R. Sutter, Esq.
Laura E. Older, Esq.
COHEN MILSTEIN SELLERS &
TOLL PLLC
1100 New York Ave, NW, Fifth Floor
Washington DC 20005
Telephone: (202) 408-4600
Facsimile: (202) 408-4699
- and -
Todd Jackson, Esq.
Nina Wasow, Esq.
FEINBERG, JACKSON, WORTHMAN &
WASOW, LLP
2030 Addison St., Suite 500
Berkeley, CA 94704
Telephone: (510) 269-7998
Facsimile: (510) 269-7994
- and -
Peter K. Stris, Esq.
Rachana A. Pathak, Esq.
Victor O'Connell, Esq.
John Stokes, Esq.
STRIS & MAHER LLP
777 S. Figueroa St., Suite 3850
Los Angeles, CA 90017
Telephone: (213) 995-6800
Facsimile: (213) 261-0299
- and -
Shaun P. Martin, Esq.
UNIVERSITY OF SAN DIEGO LAW SCHOOL
5998 Alcala Park, Warren Hall
San Diego, CA 92110
Telephone: (619) 260-2347
Facsimile: (619) 260-7933
BARNSTORMERS BASKETBALL: Seeks to Amend Class Notice Order
----------------------------------------------------------
In the class action lawsuit captioned as JOHN DOE, and all others
similarly situated, v. GREGORY SCOTT STEPEHEN, BARNSTORMERS
BASKETBALL, INC. d/b/a BARNSTORMERS BASKETBALL OF IOWA, AMATEUR
ATHLETIC UNION OF THE UNITED STATES, INC., and ADIDAS AMERICA,
INC., Case No. 3:20-cv-00005-SHL (S.D. Iowa), Barnstormers
Basketball asks the Court to enter an order for its motion to amend
or alternatively clarify class notice Order.
On February 2, 2022 the Court entered its Order granting in part,
and denying in part, the parties' proposals of class action notice
in this matter.
In its resistance/response to Plaintiffs' proposed class action
notice, Barnstormers objected to any attempts to shift the burden
of providing class notice from Plaintiffs to it.
BBI respectfully requests the Court amend its Order to remove these
obligations and methods of service required from BBI.
Barnstormers Basketball of Iowa is a non-profit, tax-exempt
organization.
A copy of the Plaintiff's motion dated Feb. 10, 2021 is available
from PacerMonitor.com at https://bit.ly/3gReEY6 at no extra
charge.[CC]
The Plaintiff is represented by:
Guy R. Cook, Esq.
Adam D. Zenor, Esq.
Michael C. Kuehner, Esq.
Michael D. Currie, Esq.
GREFE & SIDNEY, P.L.C.
500 E. Court Ave., Suite 200
Des Moines, IA 50309
Telephone: (515) 245-4300
Facsimile: (515) 245-4452
E-mail: gcook@grefesidney.com
azenor@grefesidney.com
mkuehner@grefesidney.com
mcurrie@grefesidney.com
- and -
Connie Alt, Esq.
SHUTTLEWORTH & INGERSOLL, P.L.C.
115 3 rd Street SE, #500
Cedar Rapids, IA 52401
Telephone: (319) 365-9461
Facsimile: (319) 365-8443
E-mail: cma@shuttleworthlaw.com
dlo@shuttleworthlaw.com
The Attorneys for Defendant, Barnstormers Basketball, Inc., are:
Martha L. Shaff, Esq.
Brandon W. Lobberecht, Esq.
BETTY, NEUMAN & McMAHON, P.L.C.
1900 East 54 th Street
Davenport, IA 52807-2708
Telephone: (563) 326-4491
Facsimile: (563) 326-4498
E-mail: martha.shaff@bettylawfirm.com
brandon.lobberecht@bettylawfirm.com
The Attorneys for Defendant, Amateur Athletic Union of
the United States, Inc., are:
Jeffrey L. Goodman, Esq.
Nicole L. Keller, Esq.
GOODMAN LAW, P.C.
1501 W. 42 nd Street, Suite 300
West Des Moines, IA 50266
Telephone: (515) 267-8600
Facsimile: (515) 224-2075
E-mail: jeff@golawpc.com
The Attorneys for Adidas America, Inc., are:
Matthew A. Levin, Esq.
Stanton R. Gallegos, Esq.
MARKOWITZ HERBOLD P.C.
1455 SW Broadway, Suite 900
Portland, OR 97201
Telephone: (503) 295-3085
Facsimile: (503) 323-9105
E-mail: stantongallegos@markowitzherbold.com
mattlevin@markowitzherbold.com
BELLRING BRANDS: Faces Consumer Class Actions in Various Courts
---------------------------------------------------------------
BellRing Brands, 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 several class
action lawsuits were filed against the company on various
allegations with one in D. N.J. dismissed.
In March 2013, a complaint was filed on behalf of a putative,
nationwide class of consumers against Premier Nutrition in the U.S.
District Court for the Northern District of California seeking
monetary damages and injunctive relief. The case asserted that some
of Premier Nutrition's advertising claims regarding its Joint Juice
line of glucosamine and chondroitin dietary supplements were false
and misleading. In April 2016, the district court certified a
California-only class of consumers in this lawsuit.
In 2016 and 2017, the lead plaintiff's counsel in the California
Federal Class Lawsuit filed ten additional class action complaints
in the U.S. District Court for the Northern District of California
on behalf of putative classes of consumers under the laws of
Connecticut, Florida, Illinois, New Jersey, New Mexico, New York,
Maryland, Massachusetts, Michigan and Pennsylvania. These
additional complaints contain factual allegations similar to the
California Federal Class Lawsuit, also seeking monetary damages and
injunctive relief. The New Jersey case was voluntarily dismissed.
Trial is scheduled to commence in the New York case on May 23,
2022. In April 2018, the district court dismissed the California
Federal Class Lawsuit with prejudice. This dismissal was upheld on
appeal by the U.S. Court of Appeals for the Ninth Circuit and
Plaintiff's petition for an en banc rehearing by the Ninth Circuit
was denied. The other complaints remain pending in the U.S.
District Court for the Northern District of California, and the
court has certified individual state classes in each of those
cases.
In January 2019, the same lead counsel filed an additional class
action complaint against Premier Nutrition in California Superior
Court for the County of Alameda, alleging claims similar to the
above actions and seeking monetary damages and injunctive relief on
behalf of a putative class of California consumers, beginning after
the California Federal Class Lawsuit class period.
In September 2020, the same lead counsel filed another class action
complaint against Premier Nutrition in California Superior Court
for the County of Alameda, alleging identical claims and seeking
restitution and injunctive relief on behalf of the same putative
class of California consumers as the California Federal Class
Lawsuit.
BellRing Brands, Inc. is a consumer products holding company based
in Missouri.
BEND MEMORIAL: Discovery & PTO Dates Extended in Fulkerson Suit
---------------------------------------------------------------
In the class action lawsuit captioned as Fulkerson, et al., v. Bend
Memorial Clinic, et al., Case No. 6:20-cv-01579 (D. Or.), the Hon.
Judge Ann L. Aiken entered an order on motion for extension of
discovery & PTO deadlines as follows:
-- Class certification discovery May 16, 2022
shall be completed by:
-- Expert reports as to class May 31, 2022
certification are due by:
-- Depositions of class certification Aug. 4, 2022
experts shall be completed by:
-- Plaintiffs' Motion for Class Aug. 15, 2022
Certification/Defendants' Motion
for Summary Judgment shall be
filed by:
-- Defendants' Memorandum in Sept. 19, 2022
Opposition to Class Certification/
Plaintiffs' Memorandum in Opposition
to Summary Judgment shall be
filed by:
-- Plaintiffs' Reply Memorandum in Oct. 6, 2022
support of class certification/
Defendants' Reply to Motion for
Summary Judgment shall be filed by:
-- Non-dispositive motions, excluding Nov. 28, 2022
trial and trial related motions
shall be filed by:
-- Dispositive Motions are due by: Jan. 13, 2023
The suit alleges violation of the Americans with Disabilities Act.
Bend Memorial Clinic is a multi-specialty clinic in Central Oregon
with imaging and lab services as well as urgent care.[CC]
BIOGEN INC: Bragar Eagel & Squire Reminds of April 8 Deadline
-------------------------------------------------------------
Bragar Eagel & Squire, P.C., a nationally recognized shareholder
rights law firm, reminds investors that class actions have been
commenced on behalf of stockholders of Biogen, Inc. (NASDAQ: BIIB),
Telos Corporation (NASDAQ: TLS), Fennec Pharmaceuticals, Inc.
(NASDAQ: FENC), and Astra Space, Inc. (NASDAQ: ASTR). Stockholders
have until the deadlines below to petition the court to serve as
lead plaintiff. Additional information about each case can be found
at the link provided.
Biogen, Inc. (NASDAQ: BIIB)
Class Period: June 7, 2021 - January 11, 2022
Lead Plaintiff Deadline: April 8, 2022
The Complaint alleges that throughout the Class Period, Defendants
made materially false and/or misleading statements and/or failed to
disclose that: (1) the larger dataset did not provide necessary
data regarding aducanumab's effectiveness; (2) the EMERGE study did
not and would not provide necessary data regarding aducanumab's
effectiveness; (3) the PRIME study did not and would not provide
necessary data regarding aducanumab's effectiveness; (4) the data
provided by the Company to the FDA's Peripheral and Central Nervous
System Drugs Advisory Committee did not support finding efficacy of
aducanumab; and (5) as a result, defendants' statements about its
business, operations, and prospects, were materially false and
misleading and/or lacked a reasonable basis at all relevant times.
When the true details entered the market, the lawsuit claims that
investors suffered damages.
For more information on the Biogen class action go to:
https://bespc.com/cases/BIIB
Telos Corporation (NASDAQ: TLS)
Class Period: November 19, 2020 - November 12, 2021
Lead Plaintiff Deadline: April 8, 2022
The Class Action alleges that, during the Class Period, Defendants
made materially false and misleading statements and failed to
disclose material adverse facts about the Company's business,
operations, and prospects. Specifically, Defendants failed to
disclose that: (1) the TSA and CMS contracts, which constituted a
majority of the Company's future revenues, were not on track to
commence as represented at the end of 2021 and in 2022; (2)
Defendants lacked a reasonable basis and sufficient visibility to
provide and affirm the Company's 2021 guidance in the face of the
uncertainty surrounding the TSA and CMS contracts; (3) COVID- and
hacking scandal-related headwinds were throwing off the timing for
performance of the TSA and CMS contracts and their associated
revenues; (4) as a result, the guidance provided by Defendants was
not in fact "conservative"; (5) as a result of the delays, Telos
would be forced to dramatically reduce its revenue estimates; and
(6) as a result of the foregoing, Defendants' statements about
Telos' business, operations, and prospects, were materially false
and/or misleading and/or lacked a reasonable basis.
On this news, the Company's stock price fell $6.84, or 28%, to
close at $17.54 per share on November 15, 2021.
For more information on the Telos class action go to:
https://bespc.com/cases/TLS
Fennec Pharmaceuticals, Inc. (NASDAQ: FENC)
Class Period: May 28, 2021 - November 26, 2021
Lead Plaintiff Deadline: April 11, 2022
According to the complaint, Fennec completed its submission of a
New Drug Application ("NDA") with the U.S. Food and Drug
Administration ("FDA") for PEDMARK for the prevention of
ototoxicity induced by cisplatin chemotherapy in patients 1 month
to less than 18 years of age with localized, non-metastatic, solid
tumors, in February 2020. In August 2020, Fennec announced it had
received a Complete Response Letter ("CRL") from the FDA for the
NDA because of deficiencies identified at the manufacturing
facility of the Company's drug product manufacturer. Fennec
resubmitted the NDA in May 2021.
On November 29, 2021, Fennec announced "that it expects to receive
a [CRL] after the PDUFA [Prescription Drug User Fee Act] target
action date of November 27, 2021 from the [FDA] regarding its
[Resubmitted Pedmark NDA]." Deficiencies at the manufacturing
facility of Fennec's drug product manufacturer had again been
identified, and "[o]nce the official CRL is received, the Company
plans to request a Type A meeting to discuss the deficiencies and
steps required for the resubmission of the NDA for PEDMARK(TM)."
On this news, Fennec's share price fell over 50%, to close at $4.78
per share on November 29, 2021.
For more information on the Fennec class action go to:
https://bespc.com/cases/FENC
Astra Space, Inc. (NASDAQ: ASTR)
Class Period: February 2, 2021 - December 29, 2021
Lead Plaintiff Deadline: April 11, 2022
On December 29, 2021, Kerrisdale Capital published a report stating
that Astra's claim of being able to launch its rockets "anywhere in
the world" was "simply not true." The report alleged that in the
US, Astra could only launch from an FAA-licensed commercial
spaceport approved for vertical launch, and that only five such
sites exist in the country. Furthermore, the report pointed out
that Astra had managed just a single successful orbital test
flight, despite the Company's forecast calling for 165 launches by
2024 and 300 launches by 2025.
On this news, Astra's stock fell $1.10, or 14%, to close at $6.61
per share on December 29, 2021, thereby injuring investors.
The complaint alleges that, throughout the Class Period, Defendants
made materially false and misleading statements and/or failed to
disclose that: (1) Astra cannot launch "anywhere"; (2) Astra
significantly overstated its addressable market; (3) Astra
overstated the effectiveness of its designs and reliability; (4)
Astra significantly overstated its plans for diversification and
its broadband constellation plan; and (5) as a result, defendants'
public statements were materially false and/or misleading at all
relevant times.
For more information on the Astra Space class action go to:
https://bespc.com/cases/ASTR
About Bragar Eagel & Squire, P.C.:
Bragar Eagel & Squire, P.C. is a nationally recognized law firm
with offices in New York, California, and South Carolina. The firm
represents individual and institutional investors in commercial,
securities, derivative, and other complex litigation in state and
federal courts across the country. For more information about the
firm, please visit www.bespc.com. Attorney advertising. Prior
results do not guarantee similar outcomes.
Contact Information:
Bragar Eagel & Squire, P.C.
Brandon Walker, Esq.
Alexandra B. Raymond, Esq.
(212) 355-4648
investigations@bespc.com
www.bespc.com [GN]
C.I. LOBSTER: Pagan Seeks Conditional Status of Collective Action
-----------------------------------------------------------------
In the class action lawsuit captioned as JOSEPH PAGAN v. C.I.
LOBSTER CORP., JOSEPH MANDARINO, RICHARD MANDARINO, and JOHN
MANDARINO, Case No. 1:20-cv-07349-ALC-SDA (S.D.N.Y.), the Plaintiff
asks the Court to enter an order conditionally certifying a
collective action and approving and authorizing distribution of a
notice of collective action lawsuit to putative party plaintiffs
and related relief.
On February 8, 2022, the Plaintiff asked Defendants for the length
of time they would seek for opposition, and, on February 9, 2022,
Defendants stated March 25, 2022, to which Plaintiff agrees.
The Plaintiff’s reply is due one week later, on April 1, 2022,
under Local Rule 6.1.
A copy of the Plaintiff's motion to certify class dated Feb. 10,
2021 is available from PacerMonitor.com at https://bit.ly/33xKVRe
at no extra charge.[CC]
The Plaintiff is represented by:
Finn Dusenbery, Esq.
The Ottinger Firm, P.C.
79 Madison Ave
New York, NY 10016
CASINO QUEEN: Scheduling and Discovery Order Entered in Hensiek
---------------------------------------------------------------
In the class action lawsuit captioned as TOM HENSIEK, ET AL, v.
BOARD OF DIRECTORS OF CASINO QUEEN HOLDING COMPANY, INC., ET AL.,
Case No. 3:20-cv-00377-DWD (S.D. Ill.), the Hon. Judge David W.
Dugan entered an order adopting joint report and proposed
scheduling and discovery order as follows:
-- Depositions upon oral examination, interrogatories,
requests for documents, and answers and responses thereto
shall not be filed unless on order of the Court.
-- Disclosures or discovery under F ED . R. C IV . P. 26(a)
are to be filed with the Court only to the extent required
by the final pretrial order, other Court order, or if a
dispute arises over the disclosure or discovery and the
matter has been set for briefing.
-- The parties should note that they may, pursuant to FED.
R.CIV. P. 29, modify discovery dates set in the Joint
Report by written stipulation, except that they may not
modify a date if such modification would impact the
deadline for the completion of all discovery, the deadline
for filing dispositive motions, or the date of any court
appearance.
Casino Queen offers hospitality and entertainment services.
A copy of the Court's order dated Feb. 10, 2021 is available from
PacerMonitor.com at https://bit.ly/33toOLz at no extra charge.[CC]
CHURCHILL CORPORATE: Order on General Pretrial Management Entered
-----------------------------------------------------------------
In the class action lawsuit captioned as DONNA HEDGES v. CHURCHILL
CORPORATE SERVICES INC., Case No. 1:22-cv-01110-PAE-BCM (S.D.N.Y.),
the Hon. Judge Barbara Moses entered an order regarding general
pretrial management as follows:
All pretrial motions and applications, including those related to
scheduling and discovery (but excluding motions to dismiss or for
judgment on the pleadings, for injunctive relief, for summary
judgment, or for class certification under Fed. R. Civ. P. 23) must
be made to Judge Moses and in compliance with this Court's
Individual Practices in Civil Cases, available
on the Court's website at
https://nysd.uscourts.gov/hon-barbara-moses. There is no indication
on the docket of this action
that any defendant has been served with process, and thus no
initial conference has taken place and no schedule has been set for
motions or any other pretrial proceedings. Parties and counsel are
cautioned:
1. Once a discovery schedule has been issued, all discovery
must be initiated in time to be concluded by the close of
discovery set by the Court.
2. Discovery applications, including letter-motions
requesting discovery conferences, must be made promptly
after the need for such an application arises and must
comply with Local Civil Rule 37.2 and section 2(b) of
Judge Moses's Individual Practices.
3. For motions other than discovery motions, pre-motion
conferences are not required, but may be requested where
counsel believe that an informal conference with the Court
may obviate the need for a motion or narrow the issues.
4. Requests to adjourn a court conference or other court
proceeding (including a telephonic court conference) or to
extend a deadline must be made in writing and in
compliance with section 2(a) of Judge Moses's Individual
Practices. Telephone requests for adjournments or
extensions will not be entertained.
5. In accordance with section 1(d) of Judge Moses's
Individual Practices, letters and letter-motions are
limited to four pages, exclusive of attachments. Courtesy
copies of letters and letter-motions filed via ECF are
required only if the filing contains voluminous
attachments. Courtesy copies should be delivered promptly,
should bear the ECF header generated at the time of
electronic filing, and should include tabs for the
attachments.
6. If you are aware of any party or attorney who should
receive notice in this action, other than those currently
listed on the docket sheet, please notify Courtroom Deputy
Kevin Snell at (212) 805-0228 immediately.
7. Counsel for plaintiff must serve a copy of this Order on
any defendant previously served with the summons and
complaint, must serve this Order along with the summons
and complaint on all defendants served hereafter, and must
file proof of such service with the Court.
Churchill Corporate operates as integrated relocation service
provider.
A copy of the Court's order dated Feb. 10, 2021 is available from
PacerMonitor.com at https://bit.ly/3GWDqAV at no extra charge.[CC]
CITIZENS BANK: Court Narrows Claims in Chirchir's 1st Amended Suit
------------------------------------------------------------------
In the case, DR. HABIBA CHIRCHIR, on behalf of herself and a
similarly situated class of persons, Plaintiff v. CITIZENS BANK,
N.A. d/b/a Citizens One Home Loans, Defendant, Civil Action No.
3:20-0416 (S.D.W. Va.), Judge Robert C. Chambers of the U.S.
District Court for the Southern District of West Virginia,
Huntington Division:
(i) granted in part and denied in part Citizens' Motion to
Dismiss Plaintiff Dr. Habiba Chirchir's First Amended
Class Action Complaint; and
(ii) denied its Supplemental Motion to Dismiss Plaintiff's
First Amended Complaint under Fed. R. Civ. P. 12(b)(1).
I. Background
In 2016, the Plaintiff took out a home mortgage loan and entered
into a Deed of Trust with United Bank, Inc. As part of the loan
agreement, she was required to pay $50.51 per month for private
mortgage insurance ("PMI"). United Bank contracted with Genworth
Mortgage Insurance Corp./Genworth Mortgage Insurance Corp. of North
Carolina (collectively "Genworth") to provide the PMI on the loan.
Approximately two weeks after the loan's origination, United Bank
transferred the Plaintiff's loan to Franklin American Mortgage Co.,
which then transferred the loan about two weeks after that to
Fannie Mae. Although Franklin American initially retained the
servicing rights on the loan, it transferred those rights to
Citizens on May 1, 2019.
According to the First Amended Class Action Complaint, the
Plaintiff states she made both her May and June loan payments on
the same day the serving rights were transferred to Citizens. On
June 12, 2019, Citizens processed PMI disbursements from those
payments to Genworth for April and May. Thereafter, on June 18,
2019, the Plaintiff paid off the balance of her loan in full. The
following day, Citizens disbursed a PMI payment to Genworth in the
amount of $50.51, which it asserts was associated with the June
payment. Thereafter, on July 1, 2019, Citizens refunded to
Plaintiff $1,080.52 as the balance in her escrow account.
In her First Amended Class Action Complaint, the Plaintiff
indicates all her PMI payments between June 2018 and April 2019
were made between the fifth or eighth of each month. Nonetheless,
when she paid off her loan, Citizens made the PMI payment the very
next day. The crux of the Plaintiff's allegations against Citizens
is that it should not have made the $50.51 disbursement on June 19.
Instead, the Plaintiff maintains Citizens was required to pay her
$1,131.03, which was the full escrow balance as of June 18. The
Plaintiff asserts Genworth only was entitled to the prorated PMI
amount of $30.31 for the 18 days in June the loan was active,
leaving a $20.20 overpayment.
By deducting $50.51 from the escrow account, she alleges violations
by Citizens of the Real Estate Settlement Procedure Act ("RESPA")
(Count II), Breach of Contract (Count III), and violations of the
West Virginia Consumer Credit Protection Act's ("WVCCPA's")
protections against fraudulent, deceptive, or misleading
representations as to consumer credit protection (Count V) and the
WVCCPA's regulations against unfair or deceptive acts or practices
(Count VI).
In her action, the Plaintiff also brought claims against Genworth
under the Homeowners Protection Act ("HPA") (Count 1), the WVCCPA's
restrictions guarding against abusive acts or practices as to
finance charges and related provisions (Count IV) and the WVCCPA's
regulations against unfair or deceptive acts or practices (Count
VI).
The Plaintiff and Genworth settled their dispute, and on July 16,
2021, they entered into a Stipulation of Dismissal and filed it
with the Court. The Stipulation provides that the Plaintiff is
dismissing her claims only as to Genworth. The Stipulation does not
provide any details whatsoever about the settlement, and it
expressly provides that the claims against Citizens remain.
II. Discussion
A. Standing
In its Supplemental Motion to Dismiss under Rule 12(b)(1) of the
Federal Rules of Civil Procedure, Citizens argues that the
settlement with Genworth has caused the Plaintiff to lose standing
both in her personal capacity and as a class representative. In
support of its argument, Citizens cites the recent Supreme Court
decision in TransUnion LLC v. Ramirez, 141 S.Ct. 2190 (2021). In
TransUnion, the Supreme Court emphasized the necessity of a
plaintiff to have suffered a "concrete harm" in order to have
Article III standing to maintain an action in federal court.
In this case, Citizens does not deny that the Plaintiff had
standing when she filed the action. However, it argues that, when
she settled with Genworth, she lost standing because she no longer
has a "concrete, particularized injury" that the Court can redress.
In other words, the satisfaction of the overpayment extinguished
her concrete harm and Article III standing.
To the contrary, the Plaintiff maintains that Citizens' argument is
essentially an improper and premature offensive invocation of the
"one satisfaction rule" defense. In support, she cites Trunzo v.
Citi Mortgage, Civ. Act. No. 2:11-cv-01124, 2018 WL 741422 (W.D.
Pa. Feb. 7, 2018). In Trunzo, the plaintiffs settled their claims
against two defendants, leaving only a claim under the Fair Debt
Collections Practices Act ("FDCPA") against a third defendant,
Phelan Hallinan & Schmieg ("PHS"). The district court found that,
in addition to the FDCPA, the settlement included two other claims.
It determined the settlement proceeds should not be allocated to
set off one hundred percent of the FDCPA claim unless the record is
"demonstratively clear" that is what should happen. As it was not
clear, it concluded the settlement cannot be said to fully satisfy
the FDCPA claim against PHS.
Upon consideration, Judge Chambers finds the logic of Trunzo
persuasive. In the case, the only thing the Court knows is that
Genworth settled its claims with the Plaintiff. The Court does not
know the amount of the settlement, how the settlement should be
allocated amongst the claims, or if the settlement compensated
Plaintiff for actual damages. Moreover, the fact that there was a
settlement is not an admission of liability.
Therefore, Judge Chambers concludes that the Genworth settlement
proceeds cannot be considered to be a full satisfaction of the
claims against Citizens, a live case and controversy for purposes
of Article III standing still exists, and the Plaintiff has
standing to proceed as the putative class representative.
Accordingly, the Court denies Citizens' Supplemental Motion to
Dismiss Plaintiff's First Amended Class Action Complaint under Fed.
R. Civ. P. 12(b)(1).
B. Rule 12(b)(6)
Turning next to the original motion, Citizens moves to dismiss
pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure.
To survive a motion to dismiss, a complaint must contain sufficient
factual matter, accepted as true, to state a claim to relief that
is plausible on its face. Facial plausibility exists when a claim
contains "factual content that allows the court to draw the
reasonable inference that the defendant is liable for the
misconduct alleged."
Judge Chambers holds that although factual allegations in a
complaint must be accepted as true for purposes of a motion to
dismiss, this tenet does not apply to legal conclusions. Threadbare
recitals of the elements of a cause of action, supported by mere
conclusory statements, do not suffice. While legal conclusions can
provide the framework of a complaint, they must be supported by
factual allegations.
C. RESPA
Judge Chambers considers Citizens' first argument that the
Plaintiff's RESPA claim in Count II fails as a matter of law. In
Count II, the Plaintiff asserts that Citizens failed to comply with
Section 2605(g) of RESPA.
In its motion, Citizens states the PMI premiums were "No Credit"
and "Non-Refundable" monthly premiums that it was required under
Section 2605(g) to submit to Genworth. It asserts it paid the
premium to Genworth as required by RESPA and timely paid the
Plaintiff the balance in the escrow account. In her Response, the
Plaintiff challenges the documents Citizens attached to its motion
to support its position that the PMI payments are "No Credit" and
"Non-Refundable." The Plaintiff requests the opportunity to verify
their accuracy and authenticity through discovery.
In considering the parties' arguments, Judge Chambers must keep in
mind that the current motion is one to dismiss and the facts must
be viewed in the light most favorable to the Plaintiff. The
Plaintiff alleges that Citizens failed to pay her the amount
contained in the escrow account she was owed when she paid off her
loan. There are questions regarding the due date for the PMI
payment, whether the payment should have been prorated and, if
Citizens' argument is to be accepted, whether it acted reasonably
in remitting the entire PMI payment to Genworth. Although there may
be nuances of the parties' arguments the Court could parse through,
in the end, it is clear that a ruling on Citizens' motion to
dismiss the RESPA claim prior to discovery would be premature.
Therefore, Judge Chambers denies Citizens' motion to dismiss the
Plaintiff's RESPA claim.
D. Breach of Contract
Citizens next argues that the Plaintiff's breach of contract claim
in Count III should be dismissed as a matter of law because
Citizens was not a party to the Deed of Trust between the
Plaintiff, as borrower, and United Bank, Inc., as lender. Citizens
states that neither itself nor any of its predecessor mortgage
servicers were a party to the Deed of Trust and it is not in
privity of contract with the Plaintiff. Thus, Judge Chambers holds
that the Plaintiff cannot maintain a cause of action against it for
breach of contract. Although the Plaintiff argues Citizens should
be bound by the Deed of Trust or be held liable as an agent, cases
in the District have rejected both those arguments.
In Count III, the Plaintiff alleges Citizens breached the Deed of
Trust by not paying her the balance in her escrow account when she
paid off the loan. However, as Citizens was not a party to the
agreement, Judge Chambers finds under Hanson and Petty that the
Plaintiff's breach of contract claim fails as a matter of law.
Therefore, he grants Citizens' motion with respect to the
Plaintiff's contract claim.
E. WVCCPA Claims
Citizens argues the Plaintiff's claims under the WVCCPA also fail
as a matter of law. In Count V, the Plaintiff alleges Citizens'
role of collecting debt payments and escrow funds qualifies it as a
"debt collector" as that term is defined in West Virginia Code
Section 46A-2-122(d). In Count VI, the Plaintiff alleges that
Citizens' failure to timely refund the entire amount of the escrow
account she was violated the "'unfair methods of competition and
unfair or deceptive acts or practices in the conduct of any trade
or commerce'" provision of the WVCCPA.
Upon review of the parties' arguments, Judge Chambers finds he must
analyze Counts V and VI separately. As to Count V, he finds that
the Plaintiff has not properly alleged a claim under West Virginia
Code Section 46A-2-127. He grants Citizens' motion to dismiss Count
V.
With respect to Count VI, the Plaintiff asserts Citizens violated
the general consumer protection provisions by committing unfair and
deceptive acts or practices as contemplated by West Virginia Code
Section 46A-6-104 by failing "to timely refund escrow account
balances and associated misrepresentations." Judge Chambers holds
that the issue is better addressed after discovery and that the
Plaintiff has sufficiently alleged a cause of action under
subsection (L) to survive a motion to dismiss. And, although the
Plaintiff may proceed under subsection (L), she may not proceed
under subsection (M). Finally, Judge Chambers finds that the mere
fact PMI is not mentioned in section 109 does not preclude it from
the consumer protections afforded by other provisions of the
WVCCPA.
F. Jurisdiction Over Non-Residents
Citizens' final argument is that the Court should dismiss the
nationwide putative class under Rule 12(b)(2) of the Federal Rules
of Civil Procedure for lack of both general and specific personal
jurisdiction over non-West Virginia residents. In support, Citizens
cites Bristol-Myers Squibb Co. v. Superior Court of California, 137
S.Ct. 1773 (2017). However, Bristol-Myers involved a mass tort
action, and the Court expressly declined in Ross v. Huron Law Group
West Virginia, PLLC, 3:18-cv-0036, 2019 WL 637717 (S.D. W. Va. Feb.
14, 2019), to apply the Bristol-Myers' analysis to putative class
actions, as exists in the present case. Judge Chambers finds no
reason to depart from Ross in the case and, therefore, denies
Citizens' motion to dismiss the putative class members who are not
West Virginia residents.
III. Conclusion
Accordingly, for the foregoing reasons, Judge Chambers denied
Defendant Citizens' Motion to Dismiss Plaintiff Dr. Habiba
Chirchir's First Amended Class Action Complaint as to Count II
under RESPA; granted the motion to dismiss Count III for Breach of
Contract; granted the motion to dismiss Count V for fraudulent,
deceptive, or misleading representations under the WVCCPA; and
granted, in part, and denied in part Citizens' motion to dismiss
Count VI for unfair or deceptive acts or practices under the
WVCCPA. Judge Chambers also denied Citizens' its Supplemental
Motion to Dismiss Plaintiff's First Amended Complaint under Fed. R.
Civ. P. 12(b)(1).
The Clerk is directed 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. 9, 2022 Memorandum Opinion &
Order is available at https://tinyurl.com/mpaweaxb from
Leagle.com.
CLARIVATE PLC: Kessler Topaz Reminds of March 25 Deadline
---------------------------------------------------------
The law firm of Kessler Topaz Meltzer & Check, LLP (www.ktmc.com)
informs investors that a securities class action lawsuit has been
filed against Clarivate Plc ("Clarivate") (NYSE: CLVT; CLVT-PA).
The action charges Clarivate with violations of the federal
securities laws, including omissions and fraudulent
misrepresentations relating to the company's business, operations,
and prospects. As a result of Clarivate's materially misleading
statements to the public, Clarivate investors have suffered
significant losses.
Kessler Topaz is one of the world's foremost advocates in
protecting the public against corporate fraud and other wrongdoing.
Our securities fraud litigators are regularly recognized as leaders
in the field individually and our firm is both feared and respected
among the defense bar and the insurance bar. We are proud to have
recovered billions of dollars for our clients and the classes of
shareholders we represent.
YOU CAN ALSO CLICK ON THE FOLLOWING LINK OR COPY AND PASTE IN YOUR
BROWSER:
https://www.ktmc.com/clarivate-class-action-lawsuit?utm_source=PR&utm_medium=link&utm_campaign=clarivate
LEAD PLAINTIFF DEADLINE:March 25, 2022
CLASS PERIOD: February 26, 2021 through December 27, 2021
CONTACT AN ATTORNEY TO DISCUSS YOUR RIGHTS: James Maro, Esq. (484)
270-1453 or Email at info@ktmc.com
CLARIVATE'S ALLEGED MISCONDUCT
Clarivate Plc is an information services and analytics company that
provides structured information and analytics for discovery,
protection, and commercialization of scientific research,
innovations, and brands.
On December 27, 2021, Clarivate disclosed in an SEC filing that
"[o]n December 22, 2021, Clarivate . . . concluded that the
financial statements previously issued as of and for the year ended
December 31, 2020, and the quarterly periods ended March 31, 2021,
June 30, 2021, and September 30, 2021, should no longer be relied
upon because of an error in such financial statements[.]"
Specifically, Clarivate revealed that "[t]he error relates to the
treatment under U.S. generally accepted accounting principles
('GAAP') relating to an equity plan included in the CPA Global
business combination which was consummated on October 1, 2020 ('the
CPA Global Transaction')[,]" and that "[i]n the affected financial
statements, certain awards made by CPA Global under its equity plan
were incorrectly included as part of the acquisition accounting for
the CPA Global Transaction."
Following this news, Clarivate's stock price declined by $1.70 per
share, or 6.92%, to close at $22.88 per share on December 28,
2021.
WHAT CAN I DO?
Clarivateinvestors may, no later than March 25, 2022 seek to be
appointed as a lead plaintiff representative of the class through
Kessler Topaz Meltzer & Check, LLP or other counsel, or may choose
to do nothing and remain an absent class member. Kessler Topaz
Meltzer & Check, LLP encourages Clarivate investors who have
suffered significant losses to contact the firm directly to acquire
more information.
WHO CAN BE A LEAD PLAINTIFF?
A lead plaintiff is a representative party who acts on behalf of
all class members in directing the litigation. The lead plaintiff
is usually the investor or small group of investors who have the
largest financial interest and who are also adequate and typical of
the proposed class of investors. The lead plaintiff selects counsel
to represent the lead plaintiff and the class and these attorneys,
if approved by the court, are lead or class counsel. Your ability
to share in any recovery is not affected by the decision of whether
or not to serve as a lead plaintiff.
ABOUT KESSLER TOPAZ MELTZER & CHECK, LLP
Kessler Topaz Meltzer & Check, LLP prosecutes class actions in
state and federal courts throughout the country and around the
world. The firm has developed a global reputation for excellence
and has recovered billions of dollars for victims of fraud and
other corporate misconduct. All of our work is driven by a common
goal: to protect investors, consumers, employees and others from
fraud, abuse, misconduct and negligence by businesses and
fiduciaries. At the end of the day, we have succeeded if the bad
guys pay up, and if you recover your assets. The complaint in this
action was not filed by Kessler Topaz Meltzer & Check, LLP. For
more information about Kessler Topaz Meltzer & Check, LLP please
visit www.ktmc.com.
CONTACT:
Kessler Topaz Meltzer & Check, LLP
James Maro, Jr., Esq.
280 King of Prussia Road
Radnor, PA 19087
(484) 270-1453
info@ktmc.com [GN]
COASTAL DRILLING: Ford Sues Over Unpaid Overtime for Pipe Fitters
-----------------------------------------------------------------
REGINALD FORD, individually and on behalf of all others similarly
situated, Plaintiff v. COASTAL DRILLING COMPANY, LLC, Defendant,
Case No. 4:22-cv-00522 (S.D. Tex., February 17, 2022) is a class
action against the Defendant for its failure to compensate the
Plaintiff and similarly situated pipe fitters overtime pay for all
hours worked in excess of 40 hours in a workweek in violation of
the Fair Labor Standards Act.
The Plaintiff worked for the Defendant as a pipe fitter from April
1, 2019 to July 22,2019.
Coastal Drilling Company, LLC is a drilling contractor, located at
311 Saratoga Boulevard, Corpus Christi, Texas. [BN]
The Plaintiff is represented by:
Gabriel A. Assaad, Esq.
Matthew S. Yezierski, Esq.
McDONALD WORLEY, P.C.
1770 St. James St., Suite 100
Houston, TX 77056
Telephone: (713) 523-5500
Facsimile: (713) 523-5501
E-mail: gassaad@mcdonaldworley.com
matt@mcdonaldworley.com
- and –
Galvin Kennedy, Esq.
KENNEDY LAW FIRM, LLP
2925 Richmond Ave., Ste. 1200
Houston, TX 77098
Telephone: (713) 425-6445
Facsimile: (888) 389-9317
E-mail: Galvin@KennedyAttorney.com
COMPREHENSIVE HEALTHCARE: Class Cert. Briefing Schedule Revised
---------------------------------------------------------------
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 Hon. Judge William S. Stickman
entered an order granting the parties' joint motion for ten-day
extension of cass certification briefing schedule.
The briefing schedule for Plaintiffs' motion for class
certification is revised to the following:
-- Any motion for class certification Feb. 21, 2022
due by:
-- Response to motion due by: March 21 2022
-- Reply brief due by: April 7, 2022
Comprehensive Healthcare is a private company. The company
currently specializes in the Hospital & Health Care area.
A copy of the Court's order dated Feb. 10, 2021 is available from
PacerMonitor.com at https://bit.ly/3sNfISv at no extra charge.[CC]
COVANTA PLYMOUTH: Lloyd Bid for Class Certification Nixed
---------------------------------------------------------
In the class action lawsuit captioned as HOLLY LLOYD v. COVANTA
PLYMOUTH RENEWABLE ENERGY, LLC, Case No. 2:20-cv-04330-HB (E.D.
Pa.), the Hon. Judge Harvey Bartle III entered an order denying the
motion of plaintiff for class certification.
Covanta Plymouth was founded in 2009. The company's line of
business includes the collection and disposal of refuse systems.
A copy of the Court's order dated Feb. 10, 2021 is available from
PacerMonitor.com at https://bit.ly/3uXUfJs at no extra charge.[CC]
CRST INT'L: Cervantes Seeks Class Cert. Briefing Deadline Extension
-------------------------------------------------------------------
In the class action lawsuit captioned as ANTHONY CERVANTES and MIKE
CROSS, on behalf of themselves and all others similarly situated,
v. CRST INTERNATIONAL, INC., and CRST EXPEDITED, INC., Case No.
1:20-cv-00075-CJW-KEM (N.D. Iowa), the Plaintiffs ask the Court to
enter an order extending briefing deadlines for motion for Rule 23
Class Certification.
The Plaintiffs request a one-week extension to the deadline for
their Reply in support of their motion for class certification
pursuant to Fed. R Civ. P. 23, from February 18 to February 25,
2022.
The reason for the request is that Plaintiffs' Counsel office was
the center of the recent ice storm in the Hudson Valley in New
York. 1 The storm forced the offices to close on Friday, February
4, the date that Defendants' opposition arrived, and most of our
staff was without electricity for the entire weekend and some into
Monday. Even as power has been restored, there have been myriad
related issues to address. Defendants consent to the extension.
The Plaintiffs filed their motion for class certification on
December 16, 2021, and Defendants filed a response on February 7,
2022 The Plaintiffs' reply is currently due on February 18, 2022.
The deadlines for the class certification motion have been changed
twice: once at Plaintiffs' request and once Defendants' request.
The other existing court-imposed deadlines in this case are
-- Fact discovery completion: April 30, 2022
-- Affirmative expert disclosures: April 8, 2022
-- Rebuttal expert disclosures: June 8, 2022
-- Expert discovery completion: June 24, 2022
-- The Defendants' decertification May 27, 2022
motion deadline:
-- The Plaintiffs' decertification June 24, 2022
response deadline:
-- The Defendants' decertification July 8, 2022
reply deadline:
-- Dispositive motion deadline: May 6, 2022
-- Trial ready date: Oct. 3, 2022
CRST provides transportation and logistics solutions.
A copy of the Plaintiffs' motion dated Feb. 10, 2021 is available
from PacerMonitor.com at https://bit.ly/3gPzYNX at no extra
charge.[CC]
The Plaintiffs are represented by:
Michael J.D. Sweeney, Esq.
GETMAN, SWEENEY & DUNN PLLC
260 Fair Street
Kingston, NY 12401
Telephone: (845) 255-9370
E-mail: msweeney@getmansweeney.com
CVS HEALTH: Unredacted Version of Renewed Class Cert Bid Sealed
---------------------------------------------------------------
In the class action lawsuit captioned as JOSEPH MIER, individually
and on behalf of all others similarly situated, v. CVS HEALTH, a
Rhode Island limited liability company; and DOES 1 to 100,
inclusive, Case No. 8:20-cv-01979-DOC-ADS (C.D. Cal.), the Hon.
Judge David O. Carter entered an order granting plaintiff Joseph
Mier's application to seal his unredacted renewed motion for class
certification and for appointment of class counsel.
CVS Health is an American healthcare company that owns CVS
Pharmacy, a retail pharmacy chain; CVS Caremark, a pharmacy
benefits manager; and Aetna, a health insurance provider, among
many other brands.
A copy of the Court's order dated Feb. 10, 2021 is available from
PacerMonitor.com at https://bit.ly/3rV60hG at no extra charge.[CC]
DELOITTE & TOUCHE: Liable to Stockholders' Losses, Formby Claims
----------------------------------------------------------------
ROBERT (BOB) FORMBY, individually and on behalf of all others
similarly situated, Plaintiff v. DELOITTE & TOUCHE, LLP and
DELOITTE, LLP, Defendants, Case No. 1:22-cv-00670-WMR (N.D. Ga.,
February 17, 2022) is a class action against the Defendants for
violations of Section 10(b) of Securities Exchange Act of 1934 and
Section 17(a) of the Securities Act.
According to the complaint, the Defendants made materially false
statements and representations and omitted material information
about the cost and completion date of the Southern Company's
electric power plant in Kemper, Mississippi. As a result of the
Defendants' misrepresentations and omissions, Southern securities
were sold at artificially inflated prices between May 10, 2013 to
February 20, 2020, damaging investors. Both Southern and Deloitte
knew the billions of dollars Southern spent on construction could
never be passed onto the ratepayers, due to the project delays,
cost overruns, and ultimate failure of the project. By the time
Southern finally disclosed the full extent of its losses related to
the Kemper plant and Deloitte's fraud was revealed, Southern's
shareholders had suffered billions in losses, says the suit.
Deloitte & Touche, LLP is an accounting services company based in
New York, New York.
Deloitte, LLP is a provider of tax, consulting, and financial
advisory services, headquartered in New York, New York. [BN]
The Plaintiff is represented by:
C. Mark Warren, Esq.
John McCown, Esq.
WARREN & GRIFFIN, PC
300 West Emery, Suite 108
Dalton, GA 30720
Telephone: (706) 529-4878
E-mail: cmark@warrenandgirffin.com
john.mccown@warrenandgriffin.com
- and –
Gordon Ball, Esq.
GORDON BALL, PLLC
3728 West End Avenue
Nashville, TN 37205
Telephone: (865) 525-7028
E-mail: gball@gordonball.com
- and –
Thomas H. Bienert, Jr., Esq.
Alexis Federico, Esq.
BIENERT, KATZMAN, LITTRELL, WILLIAMS
903 Calle Amanecer, Suite 350
San Clemente, CA 92673
Telephone: (949) 369-3700
E-mail: tbienert@bklwlaw.com
DENTAL EQUITIES: Review of Class Certification in Scoma Suit Nixed
------------------------------------------------------------------
In the case, 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,
Plaintiffs v. DENTAL EQUITIES, LLC, FIRST ARKANSAS BANK & TRUST,
MASTERCARD INTERNATIONAL INCORPORATED, a Delaware corporation, and
JOHN DOES 1-10, Defendants, Case No. 2:16-cv-41-JLB-MRM (M.D.
Fla.), Judge John L. Badalamenti of the U.S. District Court for the
Middle District of Florida, Fort Myers Division, denied
Mastercard's motion for reconsideration.
Defendant Mastercard International Incorporated ("Mastercard")
moves under Federal Rule of Civil Procedure 59(e) for
reconsideration of the Court's order granting the Plaintiffs'
motion to certify a class of individuals who received unsolicited
faxes, purportedly sent from Mastercard, on their respective
stand-alone fax machines.
I. Background
The lawsuit 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, 47 U.S.C. Section 227 ("the TCPA"). 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. They 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.
Following extensive briefing and with guidance from the Eleventh
Circuit's recent decision in Cherry v. Dometic Corp., 986 F.3d 1296
(11th Cir. 2021), the Court first found it likely that many of the
putative class members who received the fax via an online fax
service lack Article III standing. Second, the Court determined
that the question of whether the TCPA covers receipt of a fax via
an online fax service bears on the predominance inquiry under
Federal Rule of Civil Procedure 23(b)(3) and must be answered. It
next found that receipt of faxes through online fax services is not
covered by the TCPA. Accordingly, because individual issues of
whether a member received a fax via an online fax service would
predominate over any common issues as to the All Fax Recipients
Class and individualized issues of Article III standing would
predominate as to the putative All Fax Recipients and Online Fax
Service Classes, certification of the two classes was
inappropriate.
As to the Stand-Alone Fax Machine Class, the Court found that
certification is appropriate under Rule 23(b)(3) because there are
several common issues of fact and law which could be determined
class-wide and predominate over individual issues, and a class
action would be superior to other methods for adjudicating the
controversy. As to Rule 23(b)(3)(D)'s "manageability" factor, any
difficulties in identifying membership of the Stand-Alone Fax
Machine Class do not outweigh the factors that countenance in favor
of class certification.
Mastercard now moves for reconsideration under Federal Rule of
Civil Procedure 59(e), contending that the Court erred in
certifying the class in light of subpoena responses from telephone
carriers in a separate case which, Mastercard contends, demonstrate
the difficulty of distinguishing between individuals who received
the fax on a stand-alone machine and those who received the fax via
an online fax service. Second, Mastercard contends the order is
inconsistent insofar as it rejected the proposed All Fax Recipients
Class based on a lack of predominance due to the required
individualized inquiries to determine whether each member received
a fax via a stand-alone machine or an online fax service but found
that common issues do predominate as to the Stand-Alone Fax Machine
Class. The Plaintiffs have responded in opposition.
II. Discussion
Judge Badalamenti holds that rather than present an intervening
change in controlling law, newly discovered evidence, or manifest
errors of law or fact, Mastercard seeks merely to relitigate old
matters, raise arguments, and present evidence that could have been
raised prior to entry of the certification order. Accordingly,
Mastercard has not shown that reconsideration of the certification
order is warranted.
A. Mastercard's reliance on purported "evidence" from other cases
is not a basis for reconsideration
Mastercard first contends that the Court erred in certifying the
Stand-Alone Fax Machine Class in light of subpoena responses from
telephone carriers in a separate case, True Health Chiropractic
Inc. v. McKesson Corp., No. 13-cv-2219-HSG (N.D. Cal.), which,
according to Mastercard, demonstrate the difficulty of
distinguishing between individuals who received the fax on a
stand-alone machine and those who received the fax via an online
fax service.
Judge Badalamenti finds that it is not a basis for reconsideration
for several reasons. First, the subpoena responses in McKesson do
not constitute "newly discovered evidence." Second, even assuming
the subpoena responses constitute newly discovered evidence,
Mastercard relies on the subpoena responses merely to "reiterate
arguments previously made" and rejected by the Court, namely that
there will be difficulties in distinguishing between individuals
who received the fax on a stand-alone fax machine and via an online
fax service. See Burger King Corp. v. Ashland Equities, Inc., 181
F.Supp.2d 1366, 1369 (S.D. Fla. 2002). Mastercard extensively
briefed this. In sum, Mastercard has not identified newly
discovered evidence that supports reconsideration of the
certification order.
B. Mastercard's contention that the certification order is
inconsistent is not a basis for reconsideration
Mastercard next contends the order is inconsistent insofar as it
rejected the proposed All Fax Recipients Class based on a lack of
predominance due to the required individualized inquiries to
determine whether each class member received a fax via a
stand-alone machine or online fax service but found that common
issues do predominate as to the Stand-Alone Fax Machine Class.
Again, it seeks to relitigate an issue that was previously raised
and considered, which is an inappropriate basis for relief on a
motion for reconsideration.
Although Mastercard again reiterates difficulties in identifying
the class as it relates to predominance, this is not a basis for
reconsideration. As noted, this issue was raised and fully
considered by the Court. Further, although Mastercard asserts that
the court in McKesson evaluated these difficulties in the context
of predominance, the Eleventh Circuit has explained that "aside
from its limited relevance to Rule 23(b)(3)(D), administrative
feasibility is entirely unrelated to either Rule 23(a) or (b)."
Cherry, 986 F.3d at 1304. This Court evaluated the issue of
administrative feasibility under Rule 23(b)(3)(D) and concluded
that "any difficulties in identifying membership of the Stand-Alone
Fax Machine Class do not outweigh the factors that countenance in
favor of class certification." (Doc. 188 at 23-24; see also Doc.
188 at 26, 28.) Indeed, "[a]dministrative feasibility alone will
rarely, if ever, be dispositive," and the Court retains the
"discretion to decertify a certified class that turns out to be
unmanageable."
III. Conclusion
Accordingly, absent a basis for reconsideration, Judge Badalamenti
denied 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. He
denied as moot Mastercard's Motion for Additional Time to File
Reply.
Following conferral with defense counsel and within 21 days from
the date of the Order, the Plaintiffs will file a proposed form and
method of dissemination of notice as to the certified Stand-Alone
Fax Machine Class.
A full-text copy of the Court's Feb. 9, 2022 Order is available at
https://tinyurl.com/584aaubt from Leagle.com.
DIGNITY HEALTH: Class Certification Hearing Continued to March 8
----------------------------------------------------------------
In the class action lawsuit captioned as TOMERY DARLING and ANA
JARA, on behalf of themselves and all other similarly situated
individuals, v. DIGNITY HEALTH; DIGNITY COMMUNITY CARE; DIGNITY
HEALTH MEDICAL GROUP NEVADA, LLC; and DOES 1 through 50, inclusive,
Case No. 4:20-cv-06043-YGR (N.D. Cal.), the Hon. Judge Yvonne
Gonzalez Rogers entered an order that the hearing on the motion for
class certification under Federal Rule of Civil Procedure 23 set
for February 22, 2022, at 2:00 p.m. is continued to March 8, 2022,
at 2:00 p.m.
Dignity Health is a California-based not-for-profit public-benefit
corporation that operates hospitals and ancillary care facilities
in three states. Dignity Health is the fifth-largest hospital
system in the nation and the largest not-for-profit hospital
provider in California.
A copy of the Court's order dated Feb. 10, 2021 is available from
PacerMonitor.com at https://bit.ly/36nyvMP at no extra charge.[CC]
The Plaintiff is represented by:
Mark R. Thierman, Esq.
Joshua D. Buck, Esq.
Leah L. Jones, Esq.
Joshua R. Hendrickson, Esq.
THIERMAN BUCK LLP
7287 Lakeside Drive
Reno, NV 89511
Telephone: (775) 284-1500
Facsimile: (775) 703-5027
E-mail: mark@thiermanbuck.com
josh@thiermanbuck.com
leah@thiermanbuck.com
joshh@thiermanbuck.com
The Defendants are represented by:
Richard J. Simmons, Esq.
Daniel J. McQueen, Esq.
Nora K. Stilestein, Esq.
Tyler J. Johnson, Esq.
SHEPPARD, MULLIN, RICHTER & HAMPTON LLP
333 South Hope Street, 43rd Floor
Los Angeles, CA 90071-1422
Telephone: (213) 620-1780
Facsimile: (213) 620-1398
E-mail: rsimmons@sheppardmullin.com
dmqueen@sheppardmullin.com
nstilestein@sheppardmullin.com
tjjohnson@sheppardmullin.com
DNC PARKS: Court Narrows Claims in Perez Class Suit
---------------------------------------------------
In the class action lawsuit captioned as DAVID PEREZ v. DNC PARKS &
RESORTS AT ASILOMAR, INC., et al., Case No. 1:19-cv-00484-DAD-SAB
(E.D. Cal.), the Hon. Judge Dale A. Drozd entered an order granting
in part defendants' motion to dismiss and denying defendants'
motion to strike as follows:
1. Defendants' motion to dismiss is granted, in part:
a. The Plaintiffs' third, fourth, fifth, and eighth claims
are dismissed, without further leave to amend;
b. The Defendants' motion to dismiss plaintiffs' first,
second, sixth, and seventh claims is denied; and
c. The following defendants are dismissed from this
action:
i. Delaware North Companies Parks & Resorts, Inc.;
ii. DNC Parks & Resorts at Sequoia; and
iii. DNC Parks & Resorts at Yosemite, Inc.
2. The Defendants motion to strike is denied.
3. The remaining defendants shall file their answer to the
remaining claims asserted by plaintiffs in their second
amended complaint within 21 days of service of this order.
4. The Clerk of the Court is directed to update the docket to
reflect that the following defendants have been terminated
from this action as named defendants:
i. Delaware North Companies Parks & Resorts, Inc.;
ii. DNC Parks & Resorts at Sequoia; and
iii. DNC Parks & Resorts at Yosemite, Inc.
5. The Clerk of the Court is also directed to correct the
docket to reflect that defendant DNC Parks & Resorts at
Asilomar, Inc. was dismissed from this action on October
30, 2019 and had been terminated as a named defendants in
this action.
6. The Clerk of the Court is also directed to correct the
docket to reflect that plaintiff Maria Socorro Vega was
added as a named plaintiff in this action on November 14,
2019, when plaintiffs filed their first amended complaint.
The Defendants first argue that plaintiffs have not sufficiently
pled joint employer allegations under state or federal law to hold
defendants Parks & Resorts, Sequoia, Yosemite, and Delaware North
liable with respect to their wage and hours claims and,
accordingly, the court should dismiss these defendants from this
action.
This matter arises from the plaintiff David Perez's putative class
action lawsuit alleging various wage-and-hour violations by
defendants. The case was originally filed by plaintiff in Tulare
County Superior Court, but defendants removed the action to this
federal court on April 12, 2019.
On October 30, 2019, the court granted defendants' motion for
judgment on the pleadings and dismissed plaintiff's complaint, but
granted plaintiff leave to amend to file a first amended complaint
addressing the deficiencies identified by the court.
On November 14, 2019, plaintiffs Perez and Vega filed their first
amended complaint (FAC), which defendants moved to dismiss and
strike. On July 29, 15 2020, the court granted defendants' motion
to dismiss in part and denied their motion to strike as moot.
On August 14, 2020, plaintiffs filed the operative second amended
complaint (SAC). In their SAC plaintiffs assert the following
claims: (1) failure to provide required meal breaks; (2) failure to
provide required rest breaks; (3) failure to pay overtime wages;
(4) failure to pay minimum wages; (5) failure to furnish accurate
itemized wage statements; (6) unfair and unlawful business
practices under California's Unfair Competition Law (UCL); (7)
penalties under the Labor Code Private Attorneys General Act of
2004 (PAGA), as a representative action; and (8) failure to pay all
wages and overtime compensation in violation of the Fair Labor
Standards Act (FLSA).
On August 26, 2020, defendants moved to dismiss and strike the SAC,
arguing that plaintiffs' allegations fail to cure the pleading
deficiencies previously identified by the court and that the
granting of further leave to amend is not warranted.
On September 22, 2020, plaintiffs filed their oppositions to the
pending motions, contending that they had satisfied this court's
prior directives. Alternatively, plaintiffs request the granting of
yet further leave to amend if the SAC "inadvertently includes
inconsistencies that can be corrected."
On September 29, 2020, defendants filed their replies to
plaintiffs' oppositions.
A copy of the Court's order dated Feb. 10, 2021 is available from
PacerMonitor.com at https://bit.ly/3sQJIwG at no extra charge.[CC]
EAGLE BANCORP: Class Action Settlement OK'd in Stein Class Suit
---------------------------------------------------------------
In the class action lawsuit captioned as SHIVA STEIN, Individually
and On Behalf of All Others Similarly Situated, v. EAGLE BANCORP,
INC., SUSAN G. RIEL, RONALD D. PAUL, CHARLES D. LEVINGSTON, JAMES
H. LANGMEAD, and LAURENCE E. BENSIGNOR, Case No. 1:19-cv-06873-LGS
(S.D.N.Y.), the Hon. Judge Lorna G. Schofield entered a judgment
approving class action settlement as follows:
-- Class Certification for Settlement Purposes
The Court hereby affirms its determinations in the
Preliminary Approval Order certifying, for the purposes of
the Settlement only, the Action as a class action pursuant
to Rules 23(a) and (b)(3) of the Federal Rules of Civil
Procedure on behalf of the Settlement Class consisting of:
"all persons and entities who or which purchased or
otherwise acquired Eagle Common Stock and/or Eagle Call
Options, or wrote Eagle Put Options, between March 2, 2015
and July 17, 2019, inclusive (the “Settlement Class
Period”), and were damaged thereby."
Excluded from the Settlement Class are: (1) persons who
suffered no compensable losses; and (2) (a) Defendants; (b)
the legal representatives, heirs, successors, assigns and
members of the Immediate Families of the Individual
Defendants; (c) the parents, subsidiaries, assigns,
successors, predecessors and affiliates of Eagle; (d) any
persons who served as officers and/or directors of Eagle
during the Settlement Class Period; (e) any entity in which
any of the foregoing (a) -- (d) excluded persons have or
had a majority ownership interest during the Settlement
Class Period; (f) any trust of which any Individual
the Defendants is the grantor or settlor or which is for
the benefit of any Individual Defendant and/or member(s) of
his or her Immediate Family; and (g) Defendants' liability
insurance carriers.
-- Final Settlement Approval and Dismissal of Claims
Pursuant to, and in accordance with, Rule 23 of the Federal
Rules of Civil Procedure, this Court hereby fully and
finally approves the Settlement set forth in the
Stipulation in all respects (including, without limitation:
the amount of the Settlement; the Releases provided for
therein; and the dismissal with prejudice of the claims
asserted against Defendants in the Action), and finds that
the Settlement is, in all respects, fair, reasonable and
adequate to the Settlement Class.
-- Retention of Jurisdiction
Without affecting the finality of this Judgment in any way,
this Court retains continuing and exclusive jurisdiction
over: (a) the Parties for purposes of the administration,
interpretation, implementation and enforcement of the
Settlement; (b) the disposition of the Settlement Fund; (c)
any motion for an award of attorneys' fees and/or
Litigation Expenses by Lead Counsel in the Action that will
be paid from the Settlement Fund; (d) any motion to approve
the Plan of Allocation; (e) any motion to approve the Class
Distribution Order; and (f) the Settlement Class Members
for all matters relating to the Action.
Eagle Bancorp is the holding company for EagleBank which commenced
operations in 1998. The Bank is headquartered in Bethesda,
Maryland, and conducts full service commercial banking through
eighteen offices, located in Montgomery County, Maryland,
Washington, D.C. and Northern Virginia.
A copy of the Court's order dated Feb. 10, 2021 is available from
PacerMonitor.com at https://bit.ly/3LGBi3O at no extra charge.[CC]
EHANG HOLDINGS: Sergiu Rata Appointed as Lead Plaintiff
-------------------------------------------------------
In the class action lawsuit captioned as EYOBE AMBERBER,
individually and on behalf of : others similarly situated, v. EHANG
HOLDINGS LIMITED, HUAZHI HU, RICHARD JIAN LIU, AND EDWARD HUAXIANG
XU, Case No. 1:21-cv-01392-GBD-GWG (S.D.N.Y.), the Hon. Judge
George B. Daniels entered an order:
1. denying Timo Rautanen's motion for appointment as lead
plaintiff and approval of lead counsel;
2. granting Sergiu Rata's motion for appointment as lead
plaintiff and approval of Block & Leviton LLP as lead
counsel.
Before this Court are three securities fraud class action suits
against EHang Holdings Limited, Huazhu Hu, Richard Jian Liu, and
Edward Huaxiang Xu. The Plaintiffs in all three cases purchased
shares of EHang and allege that Defendants made materially false
and misleading statements about the business and prospects of
EHang's autonomous aerial vehicle technology platform company.
Putative class members Timo Rautanen and Sergiu Rata both filed
motions for appointment as lead plaintiff and to appoint their
attorneys as lead counsel.
The Plaintiffs allege that analyst, Wolfpack Research, published a
report on February 16, 2021, entitled "EHang: A Stock Promotion
Destined to Crash and Burn" which stated, among other points, that
EHang is "an elaborate stock promotion, built on largely fabricated
revenues based on sham sales contracts with a customer who appears
to us to be more interested in helping inflate the value of its
investment in EH than about buying its products." The report stated
that Wolfpack Research had "gathered extensive evidence" to support
its report, "including behind-the-scenes photographs, recorded
phone calls, and videos of on-site visits to EH's various
facilities."
Wolfpack Research also noted that "in just 14 months as a
publicly-traded company, EH's PR team has put out 50 press
releases. However, EH's constant stream of press releases are
easily proven untrue." Finally, Wolfpack Research wrote that it
"obtained Chinese court records which show that EH's [shares] may
already be in serious jeopardy due to legal issues in China."
The Plaintiffs assert that after the Wolfpack report was released,
EHang stock price fell from its February 12, 2021 close of $124.09
to a February 16, 2021 close of $46.30 per share -- a one day drop
of $77.79 per share or approximately 62.7%.
A copy of the Court's order dated Feb. 10, 2021 is available from
PacerMonitor.com at https://bit.ly/33vHPx4 at no extra charge.[CC]
FAMILY SOLUTIONS: Can't File Interlocutory Appeal in Stephenson
---------------------------------------------------------------
In the case, Jamal Stephenson, et al., On behalf of himself and All
others similarly situated, Plaintiffs v. Family Solutions of Ohio,
Inc., et al., Defendants, Case No. 1:18cv2017 (N.D. Ohio), Judge
Pamela A. Barker of the U.S. District Court for the Northern
District of Ohio denied Defendants Family Solutions of Ohio, Inc.,
Prostar Management, Inc., John Hopkins, and Dawn Smith's Motion for
Certification to File Interlocutory Appeal.
I. Background
On Sept. 4, 2018, Plaintiff Alicia Arends filed a Complaint in the
Court on behalf of herself and all others similarly situated
against Defendants Family Solutions of Ohio, Inc., Prostar
Management, Inc., John Hopkins, and Dawn Smith. Therein, the
Plaintiff asserted that she and the putative class members were
employed by the Defendants as Qualified Mental Health Specialists
("QMHS") and that the Defendants had failed to pay them for time
worked that was not billable to Medicaid or other health
insurance.
The Plaintiff alleged the following six claims for relief: (1)
violations of the minimum wage and overtime provisions of the Fair
Labor Standards Act ("FLSA"), 29 U.S.C. Section 216(b) (Count One);
(2) violations of the Ohio Fair Minimum Wage Amendment ("OFMWA"),
Ohio Constitution, Art. II, Section 34a (Count Two); (3) violations
of Ohio's overtime compensation statute, Ohio Rev. Code Section
4111.03 (Count Three); (4) violations of the OFMWA's record-keeping
requirement (Count Four); (5) breach of contract (Count Five); and
(6) unjust enrichment (Count Six).
The Plaintiff sought conditional certification as a FLSA collective
action; certification of the state law claims under Fed. R. Civ. P.
23; compensatory and punitive damages; and attorney fees and costs.
On March 4, 2019, Jamal Stephenson filed an Opt-In and Consent
Form.
Meanwhile, on Feb. 28, 2019, the Plaintiffs filed a Motion for
Conditional Certification and Court-Authorized Notice with respect
to their FLSA claims. They sought conditional certification with
respect to "all hourly employees who worked as providers for Family
Solutions of Ohio during the three years preceding the commencement
of this action to the present."
On Sept. 16, 2019, the Court issued a Memorandum Opinion & Order
granting Plaintiffs' Motion for Conditional Certification with
respect to all current and former employees who worked as QMHSs
between Sept. 16, 2016 and Sept. 16, 2019.
A Case Management Conference ("CMC") was conducted on Oct. 7, 2019,
at which time the Court approved the parties' proposed Notice. It
did not set a specific deadline for filing a motion for
certification of a state law class under Fed. R. Civ. P. 23. The
docket reflects that FLSA consent forms were filed by 24 opt-in
plaintiffs between October and December 2019.
On May 5, 2020, the Plaintiffs filed an Amended Class and
Collective Action Complaint, designating Plaintiffs Stephenson and
Melanie Vilk Baron as the representative plaintiffs. The Amended
Complaint raises the same factual and class allegations and asserts
the same six grounds for relief set forth in the original
Complaint. The Defendants filed an Answer on May 19, 2020.
In accordance with the Court's scheduling Order, the Plaintiffs
filed their Motion for Rule 23 Class Certification on July 31, 2020
and the Defendants timely filed Motions for Summary Judgment with
respect to all claims asserted by Ms. Vilk Baron and Mr. Stephenson
on Sept. 1, 2020.
The Court conducted a telephonic status conference with lead
counsel on Jan. 8, 2021. At that time, the counsel for the
Plaintiffs specifically asked the Court not to rule on the
Plaintiffs' Motion for Rule 23 Certification until after a ruling
on the pending summary judgment motions. The Defendants did not
object. In addition, the counsel for both parties sought, and the
Court granted, an indefinite stay of expert discovery.
On March 2, 2021, the Court issued a Memorandum Opinion & Order in
which it denied the Defendants' Motions for Summary Judgment as to
Plaintiff Baron's and Stephenson's FLSA and state law wage-and-hour
claims. It denied the Defendants' Motion for Summary Judgment with
respect to the issue of damages without prejudice subject to
refiling after the close of expert discovery.
As the Plaintiffs had not had an opportunity to respond to the
Defendants' arguments regarding the impact, if any, of Dr.
Thompson's expert report on the parties' arguments relating to Rule
23 certification, the Court ordered the parties to submit
simultaneous supplemental briefing. The parties submitted their
Supplemental Briefing on March 26, 2021.
On April 5, 2021, the Court issued a Memorandum Opinion & Order
granting in part and denying in part the Plaintiffs' Motion for
Rule 23 Certification of a state law class. Therein, the Court
began by denying the Plaintiffs' Motion to the extent the putative
class included hourly Therapists and a class-based breach of
contract claim. Having thus narrowed the state law class, the Court
proceeded to consider whether to exercise supplemental jurisdiction
over the Plaintiffs' remaining state class claims. After a lengthy
analysis, it concluded that "considerations of judicial economy,
convenience, and fairness weigh in favor of exercising supplemental
jurisdiction over the Plaintiffs' state law claims."
Shortly after issuing its Rule 23 ruling, the Court conducted a
status conference with the counsel, at which time it set case
management deadlines relating to the Rule 23 class members,
including deadlines for the submission of a joint proposed Notice,
completion of representative fact discovery, completion of expert
discovery, and submission of motions based on the same.
On April 19, 2021, the Defendants filed a Notice of Interlocutory
Appeal to the Sixth Circuit from the Court's decision granting in
part and denying in part the Plaintiffs' Motion for Rule 23
Certification. Several months later, on July 13, 2021, the
Defendants filed a Motion for Certification to File Interlocutory
Appeal in the Court pursuant to 28 U.S.C. Section 1292(b). The
Plaintiffs opposed the Motion, and the Defendants filed a Reply.
The Defendants also filed a Motion for Sanctions based on the
Plaintiffs' alleged failure to timely produce evidence of damages.
While the Defendants' Motions were pending, the parties filed a
Joint Motion for Referral to Mediation and to Extend Deadlines he
Court granted the Motion, referred the matter to Magistrate Judge
William Baughman for mediation proceedings, and extended the
remaining case management deadlines. After conducting mediation
sessions on Nov. 9, 2021 and Dec. 13, 2021, the Magistrate Judge
reported that the parties were unable to reach a resolution.
The Court conducted a status conference with the counsel on Dec.
15, 2021, at which time the parties jointly requested that the case
schedule be extended by another 60 days. The Court granted the
parties' request and set a Final Pretrial for Nov. 21, 2022, and a
Trial date of Dec. 5, 2022. Subsequently, on Jan. 31, 2022, the
Court denied the Defendants' Motion for Sanctions
II. Analysis
The Defendants ask the Court "pursuant to 28 U.S.C. Section 1292(b)
to modify, amend, or otherwise certify for appeal" its April 5,
2021 Memorandum Opinion & Order granting in part and denying in
part the Plaintiffs' Motion for Rule 23 Certification. They argue
that that "there are several controlling questions of law" on which
a substantial difference of opinion exists. While the Defendants do
not clearly identify the specific legal questions that they believe
warrant certification to the Sixth Circuit, the Court interprets
the Defendants' Motion as generally requesting certification of the
Court's (1) decision to exercise supplemental jurisdiction over the
Plaintiffs' state law claims under the particular circumstances of
the case; and (2) finding that Rule 23's commonality and
superiority requirements are met.
The Defendants maintain that an immediate appeal of these issues
would materially advance the ultimate termination of the litigation
because "the Rule 23 Order has resulted in at least eighteen more
months of litigation" and "this is a standard case that will likely
remain pending for four years before the Sixth Circuit's review if
this interlocutory appeal is not granted."
The Plaintiffs argue that the Defendants' Motion should be denied
for several reasons. The Plaintiffs first assert that, because the
class certification orders are discretionary, they do not generally
involve a "controlling question of law" for purposes of Section
1292(b). They next argue that the Defendants have failed to
articulate a "controlling question of law," either with respect to
supplemental jurisdiction or class certification. Finally, the
Plaintiffs argue that an interlocutory appeal would not materially
advance the ultimate termination of the litigation but, rather,
would "most assuredly delay the trial."
Judge Barker addresses the parties' arguments in the context of the
Section 1292(b) requirements.
A. Controlling Questions of Law about which there Exist a
Substantial Difference of Opinion
First, Judge Barker finds that the Defendants have not demonstrated
that the Court's decision to exercise supplemental jurisdiction
over the Plaintiffs' state law claim constitutes "a controlling
question of law about which there exists a substantial difference
of opinion," for purposes of Section 1292(b). Second, she finds
that the Defendants have not demonstrated that the Court's findings
regarding the commonality and superiority requirements of Rule 23
constitute "controlling questions of law about which there exists a
substantial difference of opinion," for purposes of Section
1292(b).
B. Materially Advance the Termination of the Litigation
First, Judge Barker finds that interlocutory appeal would not
materially advance the termination of the instant litigation. It
would be a waste of judicial resources to certify interlocutory
appeal of an issue that has the potential to be moot should the
Defendants move to decertify the Rule 23 class. Second, Judge baker
opines that even if the Sixth Circuit were to reverse the Court's
decisions to either exercise supplemental jurisdiction over the
Plaintiffs' state law claims and/or to certify a state law class
under Rule 23, the Plaintiffs' FLSA collective action claims would
still remain for resolution. Accordingly, the Defendants have not
demonstrated that interlocutory appeal would materially advance the
termination of the litigation.
III. Conclusion
Having considered each of the factors set forth in Section 1292(b),
Judge Barker finds that the Defendants have not met their burden of
demonstrating that an interlocutory appeal is justified. The
Defendants' Motion for Certification to File Interlocutory Appeal
is, therefore, denied.
A full-text copy of the Court's Feb. 9, 2022 Memorandum Opinion &
Order is available at https://tinyurl.com/4ckfvn5t from
Leagle.com.
FLEX LTD: Dismissal of California Securities Class Suit Upheld
--------------------------------------------------------------
Flex Ltd. 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 Court of
Appeals affirmed the dismissal with prejudice of a putative class
action filed in California which took effect on January 12, 2022.
On May 8, 2018, a putative class action was filed in the Northern
District of California against the Company and certain officers
alleging violations of Sections 10(b) and 20(a) of the Securities
Exchange Act of 1934, and Rule 10b-5, promulgated thereunder,
alleging misstatements and/or omissions in certain of the company's
financial results, press releases and SEC filings made during the
putative class period of January 26, 2017 through April 26, 2018.
On October 1, 2018, the Court appointed lead plaintiff and lead
plaintiff's counsel in the case. On November 28, 2018, lead
plaintiff filed an amended complaint alleging misstatements and/or
omissions in certain of the company's SEC filings, press releases,
earnings calls, and analyst and investor conferences and expanding
the putative class period through October 25, 2018. On April 3,
2019, the court vacated its prior order appointing lead plaintiff
and lead plaintiff's counsel and reopened the lead plaintiff
appointment process. On September 26, 2019, the Court appointed a
new lead plaintiff, National Elevator Industry Pension Fund, and
lead plaintiff's counsel in the case. On November 8, 2019, lead
plaintiff filed a further amended complaint.
On December 4, 2019, defendants filed a motion to dismiss the
amended complaint. On May 29, 2020, the Court granted defendants'
motion to dismiss without prejudice and gave lead plaintiff 30 days
to amend. On June 29, 2020, lead plaintiff filed a further amended
complaint. On July 27, 2020, defendants filed a motion to dismiss
the amended complaint.
On December 10, 2020, the Court granted defendants' motion to
dismiss with prejudice and entered judgment in favor of defendants.
On January 7, 2021, lead plaintiff filed a notice of appeal to the
Ninth Circuit Court of Appeals. On May 19, 2021, lead plaintiff
filed its opening appeal brief, on July 19, 2021, defendants filed
their answering brief, and on September 8, 2021, lead plaintiff
filed its reply brief. The Court of Appeals heard oral argument on
December 8, 2021. On December 21, 2021, the Court of Appeals
affirmed the dismissal with prejudice of the case. The Court of
Appeals' decision took effect on January 12, 2022.
Flex Ltd. is into printed circuit boards based in Singapore.
FOUNDATION ENERGY: May 27 Extension for Class Cert Filing Sought
----------------------------------------------------------------
In the class action lawsuit captioned as HERITAGE ROYALTY OIL &
GAS, LLC, on behalf of itself and all others similarly situated, v.
FOUNDATION ENERGY MANAGEMENT, LLC (including affiliated
predecessors & successors), Case No. 1:20-cv-03753-DDD-NRN (D.
Colo.), the Plaintiff asks the Court to enter an order:
1. staying consideration of Defendant's Motion for Summary
Judgment and Plaintiff's Motion to Strike in light of
mediation to take place between the Parties in April 2022;
and
2. granting the Plaintiff an extension to file its Motion for
Class Certification, from March 1, 2022, to May 27, 2022
(setting Plaintiff’s class certification motion to March
1, 2022).
The Plaintiff's counsel certifies that they conferred in good faith
with Defendant's counsel regarding the relief sought by this
motion. The Defendant does not oppose the relief sought herein.
The Defendant filed its motion for summary judgment on November 29,
2021. The Plaintiff filed its motion to strike Defendant's motion
for summary judgment on January 6, 2022. The Defendant filed its
response to Plaintiff’s motion to strike on January 21, 2022.
A copy of the Plaintiff's motion to certify class dated Feb. 10,
2021 is available from PacerMonitor.com at https://bit.ly/36b5wLW
at no extra charge.[CC]
The Plaintiff is represented by:
Rex A. Sharp, Esq.
W. Greg Wright, Esq.
Scott B. Goodger, Esq.
SHARP LAW, LLP
4820 W. 75 th Street
Prairie Village, KS 66208
Telephone: (913) 901-0505
Facsimile: (913) 222-2512
E-mail: rsharp@midwest-law.com
gwright@midwest-law.com
sgoodger@midwest-law.com
FOUR SEASONS: Faces Gonzalez Wage-and-Hour Suit in E.D.N.Y.
-----------------------------------------------------------
LUIS LOPEZ GONZALEZ, individually and on behalf of all others
similarly situated, Plaintiff v. FOUR SEASONS ROOFING, INC. and
WILLIAM TAYLOR, JR., Defendants, Case No. 2:22-cv-00883 (E.D.N.Y.,
February 17, 2022) is a class action against the Defendants for
violations of the Fair Labor Standards Act and the New York Labor
Law including failure to pay overtime wages, failure to provide
accurate wage notice, and failure to provide accurate wage
statements.
The Plaintiff was employed by the Defendants as a general laborer,
roofer and helper from January 2021 until October 2021.
Four Seasons Roofing, Inc., is a roofing company, with a principal
executive office located at 90 Florida St., Farmingdale, New York.
[BN]
The Plaintiff is represented by:
Roman Avshalumov, Esq.
HELEN F. DALTON & ASSOCIATES, P.C.
80-02 Kew Gardens Road, Suite 601
Kew Gardens, NY 11415
Telephone: (718) 263-9591
Facsimile: (718) 263-9598
GOOGLE LLC: Stipulation Extending Deadline to File Reply Filed
--------------------------------------------------------------
In the class action lawsuit captioned as PATRICK CALHOUN, et al.,
on behalf of themselves and all others similarly situated, v.
GOOGLE LLC, Case No. 4:20-cv-05146-YGR (N.D. Cal.), the Parties
stipulate, subject to Court approval as follows:
1. The deadline for Plaintiffs to file their Reply in Further
Support of their Motion for Class Certification (and
related briefing, including oppositions to Google's prior
Motions to Strike Plaintiff Expert Reports in Support of
Clas Certification) shall be two business days after final
transcripts of the depositions of the three Google
Declarants are transmitted to the parties.
2. The deadline for Google to file its Reply to Plaintiffs'
oppositions to Google's prior Motions to Strike Plaintiff
Expert Reports in Support of Class Certification shall be
four weeks after Plaintiffs file their oppositions.
3. Google expert reports shall be five weeks after Plaintiffs
file such motions. The deadline for Google to file its
Opposition to any motions by Plaintiffs to strike
4. The deadline for Plaintiffs to file their Reply to Google's
Opposition to any Plaintiff motion to strike Google expert
reports shall be three weeks after Google files such
Opposition.
5. The hearing on Plaintiffs' motion for class certification
shall remain calendared for April 21, 2022.
Google LLC is an American multinational technology company that
specializes in Internet-related services and products, which
include online advertising technologies, a search engine, cloud
computing, software, and hardware.
A copy of the Parties' motion dated Feb. 9, 2021 is available from
PacerMonitor.com at https://bit.ly/3LzL9bp at no extra charge.[CC]
The Plaintiffs are represented by:
Lesley Weaver, Esq.
Angelica M. Ornelas, Esq.
Joshua D. Samra, Esq.
BLEICHMAR FONTI & AULD LLP
555 12th Street, Suite 1600
Oakland, CA 94607
Telephone: (415) 445-4003
Facsimile: (415) 445-4020
E-mail: lweaver@bfalaw.com
- and -
David A. Straite, Esq.
Amy E. Keller, Esq.
Adam Prom, Esq.
Sharon Cruz, Esq.
DiCELLO LEVITT GUTZLER LLC
60 East 42nd Street, Suite 2400
New York, NY 10165
Telephone: (646) 933-1000
E-mail: dstraite@dicellolevitt.com
akeller@dicellolevitt.com
- and -
Jason Barnes, Esq.
An Truong, Esq.
SIMMONS HANLY CONROY LLC
112 Madison Avenue, 7th Floor
New York, NY 10016
Telephone: (212) 784-6400
Facsimile: (212) 213-5949
The Defendant is represented by:
Andrew H. Schapiro, Esq.
Diane M. Doolittle, Esq.
Stephen A. Broome, Esq.
Viola Trebicka, Esq.
Jomaire Crawford, Esq.
Josef Ansorge, Esq.
Jonathan Tse, Esq.
QUINN EMANUEL URQUHART &
SULLIVAN, LLP
191 N. Wacker Drive, Suite 2700
Chicago, IL 60606
Telephone: (312) 705-7400
Facsimile: (312) 705-7401
E-mail: andrewschapiro@quinnemanuel.com
dianedoolittle@quinnemanuel.com
stephenbroome@quinnemanuel.com
violatrebicka@quinnemanuel.com
jomairecrawford@quinnemanuel.com
josefansorge@quinnemanuel.com
jonathantse@quinnemanuel.com
GT MARKETING: Loses Bid to Dismiss Pastore Suit
-----------------------------------------------
In the class action lawsuit captioned as JONATHAN A. PASTORE v. GT
MARKETING GROUP USA, INC., Case No. 6:21-cv-1483-PGB-DCI (M.D.
Fla.), the Hon. Judge Paul G. Byron entered an order denying the
Defendant's motion to dismiss for failure to state a claim.
The Court finds that Plaintiff put forward sufficient facts to
allege a plausible claim for relief against Defendant. To state a
claim for relief under the TCPA for Count I, Plaintiff must
demonstrate the Defendant initiated a non-emergency telephone call
to any residential telephone line, including cell phone numbers,
using a prerecorded voice, without the prior consent of the called
party.
Undeterred, the Defendant argues that Plaintiff's only alleged
connection between Defendant and the calls in the First Amended
Complaint -- the credit card charges attributable to Eccentry
Holidays -- is conclusory and need not be accepted as true by the
Court because Plaintiff pleads it "upon information and belief."
This dispute flows from unwanted, prerecorded telephone calls that
marketed vacations. The Plaintiff Jonathan Pastore is on the
national Do-Not-Call List. He alleges that the Defendant, or its
agents, called him without his consent on at least three occasions
in early 2021. Upon picking up the phone each time, a prerecorded
voice message informed him he had won a complementary stay with a
hotel, prompting him to press one to speak with an agent.
After doing so, Plaintiff provided a credit card number to the
representative with whom he spoke, and then Defendant or its agents
attempted to charge this credit card number on the specific dates
when he provided the information. He alleges those attempted credit
card charges are attributable to Eccentry Holidays, a tradename
under which Defendant does business.
The Plaintiff then brought claims against Defendant, directly or
through its agents, alleging two violations of the Telephone
Consumer Protection Act (the TCPA): 1) a violation of 47 U.S.C.
section 227(b)(1)(B), which relevantly prohibits prerecorded,
non-emergency telephone calls made without the callee’s consent;
and 2) a violation of TCPA-implementing regulation 47 C.F.R.
section 64.1200(c), which prohibits initiating solicitation calls
to telephone numbers that have been placed on the national
Do-Not-Call registry by their owners.
A copy of the Court's order dated Feb. 10, 2021 is available from
PacerMonitor.com at https://bit.ly/3I26NmE at no extra charge.[CC]
HALSTED FINANCIAL: Wins Bid to Compel Arbitration in Shaffer Suit
-----------------------------------------------------------------
In the case, Ashton Shaffer, Plaintiff v. Halsted Financial
Services, LLC, et al., Defendants, Case No. 3:21 CV 1849 (N.D.
Ohio), Judge Jack Zouhary of the U.S. District Court for the
Northern District of Ohio, Western Division:
(i) denied Shaffer's Motion to Depose Patricia Sexton; and
(ii) granted the Defendants' Motion to Compel Arbitration.
I. Introduction
Plaintiff Shaffer, individually and on behalf of those similarly
situated, brought the class action against Defendants Halsted,
Resurgent Receivables, and Brian S. Glass. The Defendants move to
compel arbitration; Shaffer opposes, and the Defendants reply. The
case was referred to Magistrate Judge Darrell Clay under Local
Civil Rule 72.2(b)(2). Magistrate Judge Clay issued a Report and
Recommendation ("R&R") recommending the Court grants the
Defendants' Motion, and compel arbitration. Shaffer timely objects
to the R&R; the Defendants respond.
II. Background
Shaffer filed a class action in state court asserting violations of
the Fair Debt Collection Practices Act ("FDCPA"), the Ohio civil
RICO law, and the Ohio Consumer Sales Practices Act ("CSPA"). The
Defendants properly removed the matter to the Court in September
2021.
In his Complaint, Shaffer alleges he received collection letters
from Defendant Halsted, which violated the above statutes, as
Halsted was not a legal assignee of the rights to Shaffer's
account. Defendants contend Shaffer entered a written arbitration
agreement when he opened his account with Credit One Bank and that
this agreement was not voided when the account was assigned to a
series of other entities.
The Defendants support their agreement with a declaration from
Sexton, an employee of Defendant Resurgent. In response, Shaffer
opposed and moved to depose Sexton, arguing her declaration was
defective. The Defendants then filed a revised declaration from
Sexton. The R&R concluded Shaffer's claims were meritless.
III. Discussion
Mr. Shaffer raises three objections to the R&R. First, he claims
Sexton's declaration improperly refers to non-produced documents in
an attempt to establish Defendant Halsted is the legal owner of
Shaffer's credit-card debt. Shaffer also suggests that because
Sexton does not attach all the "non produced, critically important,
and easily obtainable documents" she reviewed, her declaration
should be inadmissible. Next, Shaffer argues the Defendants failed
to produce a legally sufficient copy of the signed agreement
between the parties. Finally, Shaffer reasserts the request to
depose Sexton.
Judge Zouhary finds that (i) Sexton confirmed Shaffer's account was
among those pooled and assigned to Halsted; (ii) tThe R&R correctly
concluded Sexton's declaration provides sufficient evidence that
Defendant Halsted is the legal owner of Shaffer's credit-card debt;
(iii) the R&R correctly concludes "there is a broad, enforceable
agreement to arbitrate between Shaffer and Credit One Bank that
through valid written assignment now runs in favor of the
Defendants in the case; and (iv) the referenced documents have been
authenticated by a reliable source, and the Plaintiff offers no
reason why a deposition of Sexton would have a material impact on
the arbitrability issue.
IV. Conclusion
Judge Zouhary concludes that the broad arbitration clause between
the parties requires "any controverses or disputes arising from or
relating to Shaffer's Account; and any transaction involving
Shaffer's Account" to be resolved in arbitration. The Sixth Circuit
has held "any doubts regarding arbitrational should be resolved in
favor of arbitration."
Shaffer's Objections are overruled, and Judge Zouhary adopted the
R&R in its entirety. Shaffer's Motion to Depose is denied. The
Motion to Compel Arbitration is granted. The case is dismissed.
A full-text copy of the Court's Feb. 9, 2022 Order is available at
https://tinyurl.com/tf5mdmzx from Leagle.com.
HARVARD UNIVERSITY: Graduate Student Workers File Title IX Suit
---------------------------------------------------------------
Nikita Rumsey, writing for onlabor, reports that three graduate
student workers filed a lawsuit in Boston federal district court
against Harvard University, alleging that the university ignored
allegations that John Comaroff, an anthropologist, had sexually
harassed graduate students for years and had allowed him to
intimidate students by threatening to derail their academic careers
if they reported him. The lawsuit builds on an internal Title IX
investigation conducted by Harvard that found that Dr. Comaroff had
engaged in verbal conduct that violated policies on sexual and
gender-based harassment and professional conduct, but which did not
find that he was responsible for unwanted sexual contact. As a
result of the investigation, Comaroff was placed on administrative
leave for at least the spring semester and barred from teaching
courses through at least the next year. In addition, in the days
leading up to the lawsuit, the controversy surrounding the Title IV
investigation stirred more than 90 Harvard faculty to sign an "open
letter" defending Comaroff's character and criticizing certain
aspects of the investigation. In response, another letter
circulated by a rival group of Harvard academics criticized
Comaroff's defenders for being too quick to accept the facts as
told by his lawyers and openly aligning themselves against the
student-complainants. Moreover, after the lawsuit was filed and
further details came to light through the plaintiffs' complaint, a
number of faculty renounced their support for Comaroff and
attempted to retract their support of the original open-letter.
Meanwhile, a federal district court has upheld the validity of a
2021 New York City law barring fast-food chains from firing
employees without just cause against a challenge brought by the
Restaurant Law Center and the NYS Restaurant Association. As
Bloomberg reported, the law provides that covered employees may not
be terminated, indefinitely suspended, or see their hours reduced
without just cause. In addition, the law provides such workers the
right to pursue arbitration if they believe they've been wrongfully
discharged. In upholding the law against the restaurant groups'
federal and constitutional claims, SDNY Judge Denise Cote found
that the law was not preempted by the National Labor Relations Act
because the law is intended to promote job stability for hourly
workers in a specific industry and does not distinguish between
union and non-union workers, including in its arbitration
provision. Judge Cote noted that the law addresses the process by
which fast-food workers can be terminated, not collective
bargaining, and only creates individual rights for employees. In
addition, the court upheld the law's arbitration provision against
a claim that it was preempted by the Federal Arbitration Act,
finding that the NYC law does not prohibit or impair the
enforcement of private arbitration agreements or otherwise conflict
with the FAA's statutory scheme. Lastly, the judge disposed of a
claim that the law violated the Commerce Clause of the U.S.
Constitution on the ground that it discriminated against interstate
commerce, noting that the law's burden on interstate restaurant
operations was indirect and that the law did not benefit in-state
restaurant chains at the expense of out-of-state competitors. [GN]
INTERNATIONAL BUSINESS: Age Discrimination Class Action Pending
---------------------------------------------------------------
Noam Scheiber, writing for The Indian Express, reports that in
recent years, former IBM employees have accused the company of age
discrimination in a variety of legal filings and press accounts,
arguing that IBM sought to replace thousands of older workers with
younger ones to keep pace with corporate rivals.
Now it appears that top IBM executives were directly involved in
discussions about the need to reduce the portion of older employees
at the company, sometimes disparaging them with terms like
"dinobabies."
A trove of previously sealed documents made public by a U.S.
District Court on Feb. 11 show executives discussing plans to phase
out older employees and bemoaning the company's relatively low
percentage of millennials.
The documents, which emerged from a lawsuit contending that IBM
engaged in a years-long effort to shift the age composition of its
workforce, appear to provide the first public piece of direct
evidence about the role of the company's leadership in the effort.
"These filings reveal that top IBM executives were explicitly
plotting with one another to oust older workers from IBM's
workforce in order to make room for millennial employees," said
Shannon Liss-Riordan, a lawyer for the plaintiff in the case.
Liss-Riordan represents hundreds of former IBM employees in similar
claims. She is seeking class-action status for some of the claims,
although courts have yet to certify the class.
Adam Pratt, an IBM spokesperson, defended the company's employment
practices. "IBM never engaged in systemic age discrimination," he
said. "Employees were separated because of shifts in business
conditions and demand for certain skills, not because of their
age."
Pratt said that IBM hired more than 10,000 people older than 50 in
the United States from 2010 to 2020 and that the median age of
IBM's U.S. workforce was the same in each of those years: 48. The
company would not disclose how many U.S. workers it had during that
period.
A 2018 article by the nonprofit investigative website ProPublica
documented the company's apparent strategy of replacing older
workers with younger ones and argued that it followed from the
determination of Ginni Rometty, then IBM's CEO, to seize market
share in such cutting-edge fields as cloud services, big data
analytics, mobile, security and social media. According to the
ProPublica article, based in part on internal planning documents,
IBM believed that it needed a larger proportion of younger workers
to gain traction in these areas.
In 2020, the Equal Employment Opportunity Commission released a
summary of an investigation into these practices at IBM, which
found that there was "top-down messaging from IBM's highest ranks
directing managers to engage in an aggressive approach to
significantly reduce the head count of older workers." The agency
did not publicly release evidence supporting its claims.
The newly unsealed documents -- which quote from internal company
emails and which were filed in a "statement of material facts" in
the lawsuit brought by Liss-Riordan -- appear to affirm those
conclusions and show top IBM executives specifically emphasizing
the need to thin the ranks of older workers and hire more younger
ones.
"We discussed the fact that our millennial population trails
competitors," says one email from a top executive at the time. "The
data below is very sensitive -- not to be shared -- but wanted to
make sure you have it. You will see that while Accenture is 72%
millennial we are at 42% with a wide range and many units falling
well below that average. Speaks to the need to hire early
professionals."
"Early professionals" was the company's term for a role that
required little prior experience.
Another email by a top executive, appearing to refer to older
workers, mentions a plan to "accelerate change by inviting the
'dinobabies' (new species) to leave" and make them an "extinct
species."
A third email refers to IBM's "dated maternal workforce," an
apparent allusion to older women, and says, "This is what must
change. They really don't understand social or engagement. Not
digital natives. A real threat for us."
Pratt said some of the language in the emails "is not consistent
with the respect IBM has for its employees" and "does not reflect
company practices or policies." The statement of material facts
redacts the names of the emails' authors but indicates that they
left the company in 2020.
Both earlier legal filings and the newly unsealed documents contend
that IBM sought to hire about 25,000 workers who typically had
little experience during the 2010s. At the same time, "a comparable
number of older, non-Millennial workers needed to be let go,"
concluded a passage in one of the newly unsealed documents, a
ruling in a private arbitration initiated by a former IBM
employee.
Similarly, the EEOC's letter summarizing its investigation of IBM
found that older workers made up more than 85% of the group whom
the company viewed as candidates for layoffs, although the agency
did not specify what it considered "older."
The newly unsealed documents suggest that IBM sought to carry out
its strategy in a variety of ways, including a policy that no
"early professional hire" can be included in a mass layoff in the
employee's first 12 months at the company. "We are not making the
progress we need to make demographically, and we are squandering
our investment in talent acquisition and training," an internal
email states.
The lawsuit also argues that IBM sought to eliminate older workers
by requiring them to move to a different part of the country to
keep their jobs, assuming that most would decline to move. One
internal email stated that the "typical relo accept rate is 8-10%,"
while another said that the company would need to find work for
those who accepted, suggesting that there was not a business
rationale for asking employees to relocate.
And while IBM employees designated for layoffs were officially
allowed to apply for open jobs within the company, other evidence
included in the new disclosure suggests that the company
discouraged managers from hiring them. For example, according to
the statement of material facts, managers had to request approval
from corporate headquarters if they wanted to move ahead with a
hire.
Several of the plaintiffs in a separate lawsuit brought by
Liss-Riordan appeared to have been on the receiving end of these
practices. One of them, Edvin Rusis, joined IBM in 2003 and had
worked as a "solution manager." He was informed by the company in
March 2018 that he would be laid off within a few months. According
to his legal complaint, Rusis applied for five internal positions
after learning of his forthcoming layoff but heard nothing in
response to any of his applications.
Pratt said the company's efforts to shield recent hires from
layoffs, as well as its approach to relocating workers, were blind
to age and that many workers designated for layoffs did secure new
jobs with IBM.
The ProPublica story from 2018 identified employees in similar
situations and others who were asked to relocate out of state and
decided to leave the company instead.
The company has faced other age discrimination claims, including a
lawsuit filed in federal court in which plaintiffs accused the
company of laying off large numbers of baby boomers because they
were "less innovative and generally out of touch with IBM's brand,
customers and objectives." The case was settled in 2017, according
to ProPublica.
In 2004, the company agreed to pay more than $300 million to settle
with employees who argued that its decision in the 1990s to replace
its traditional pension plan with a plan that included some
features of a 401(k) constituted age discrimination.
The federal Age Discrimination in Employment Act prohibits
discrimination against people 40 or older in hiring and employment
on the basis of their age, with limited exceptions.
The act also requires companies to disclose the age and positions
of all people within a group or department being laid off, as well
as those being kept on, before a worker waives the right to sue for
age discrimination. Companies typically require such waivers before
granting workers' severance packages.
But IBM stopped asking workers who received severance packages to
waive their right to sue beginning in 2014, which allowed it to
cease providing information about the age and positions of workers
affected by a mass layoff.
Instead, IBM required workers receiving a severance package to
bring any discrimination claims individually in arbitration -- a
private justice system often preferred by corporations and other
powerful defendants. Pratt said the change was made to better
protect workers' privacy.
While some former employees preserved their ability to sue IBM in
court by declining the severance package, many former employees
accepted the package, requiring them to bring claims in
arbitration. Liss-Riordan, who is running for attorney general of
Massachusetts, represents employees in both situations.
The particular legal matter that prompted the release of the
documents in federal court was a motion by one of the plaintiffs
whose late husband had signed an agreement requiring arbitration
and whose arbitration proceeding IBM then sought to block.
IBM argued that the plaintiff sought to pursue the claim in
arbitration after the window for doing so had passed and that some
of the evidence the plaintiff sought to introduce was confidential
under the arbitration agreement. The plaintiff argued that those
provisions of the arbitration agreement were unenforceable.
The judge in the case, Lewis J. Liman, has yet to rule on the
merits of that argument. But in January, Liman ruled that documents
in the case, including the statement of material facts, should be
available to the public. [GN]
KPMG LLP: Order Regarding General Pretrial Management Entered
-------------------------------------------------------------
In the class action lawsuit captioned as BORIS POGIL v. KPMG
L.L.P., Case No. 1:21-cv-07628-LTS-BCM (S.D.N.Y.), the Hon. Judge
Barbara Moses entered an order regarding general pretrial
management as follows:
-- All pretrial motions and applications, including those
related to scheduling and discovery (but excluding motions
to dismiss or for judgment on the pleadings, for injunctive
relief, for summary judgment, or for class certification
under Fed. R. Civ. P. 23) must be made to Judge Moses and
in compliance with this Court's Individual Practices in
Civil Cases, available on the Court's website at
https://nysd.uscourts.gov/hon-barbara-moses.
Parties and counsel are cautioned:
1. Once a discovery schedule has been issued, all discovery
must be initiated in time to be concluded by the close
of discovery set by the Court.
2. Discovery applications, including letter-motions
requesting discovery conferences, must be made promptly
after the need for such an application arises and must
comply with Local Civil Rule 37.2 and § 2(b) of Judge
Moses's Individual Practices.
3. For motions other than discovery motions, pre-motion
conferences are not required, but may be requested where
counsel believe that an informal conference with the
Court may obviate the need for a motion or narrow the
issues.
4. Requests to adjourn a court conference or other court
proceeding (including a telephonic court conference) or
to extend a deadline must be made in writing and in
compliance with section 2(a) of Judge Moses's Individual
Practices. Telephone requests for adjournments or
extensions will not be entertained.
5. In accordance with section 1(d) of Judge Moses's
Individual Practices, letters and letter-motions are
limited to four pages, exclusive of attachments.
Courtesy copies of letters and letter-motions filed via
ECF are required only if the filing contains voluminous
attachments.
KPMG is a British-Dutch multinational professional services
network, and one of the Big Four accounting organizations.
A copy of the Court's order dated Feb. 10, 2021 is available from
PacerMonitor.com at https://bit.ly/34GYluN at no extra charge.[CC]
KUCOIN: S.D. New York Certifies TOMO Token Class in Williams Suit
-----------------------------------------------------------------
In the case, CHASE WILLIAMS, individually and on behalf of all
others similarly situated, Plaintiff v. KUCOIN, MICHAEL GAN, JOHNNY
LYU and ERIC DON, Case No. 20 Civ. 2806 (GBD) (RWL) (S.D.N.Y.),
Judge George B. Daniels of the U.S. District Court for the Southern
District of New York granted in part the Plaintiff's motion for
class certification for a narrowed class that does not include
purchasers of tokens that the Plaintiff did not purchase.
I. Introduction
Lead Plaintiff Williams purchased TOMO-brand digital asset tokens
on KuCoin, an online crypto-asset exchange. He brings the putative
class action against Defendants KuCoin, Michael Gan, Johnny Lyu,
and Eric Don 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. Claims one through three arc directed at KuCoin and allege
offer and sale of unregistered securities in violation of Section 5
of the Securities Act of 1993 (First Cause of Action); operation as
an unregistered exchange in violation of Section 5 of the
Securities Exchange Act of 1934, 15 U.S.C. Section 78e (Second
Cause of Action); and operation as an unregistered broker and
dealer in violation of Section 15(a)(1) of the Exchange Act, 15
U.S.C. Section 78o(a)(1) (Third Cause of Action). The two
additional federal causes of action are directed to the individual
Defendants, Gan, Lyu. and Don, and allege that they are liable as
control persons for KuCoin's violations of the Exchange Act (Fourth
Cause of Action) and Securities Act (Fifth Cause of Action). The
remaining 149 causes of action assert violations of the analogous
security laws of 49 states, the District of Columbia, and Puerto
Rico.
The Plaintiff moves for class certification under Federal Rule of
Civil Procedure ("FRCP") 23. The Defendants never answered or
otherwise moved in the action. On Oct. 23, 2020, at the Plaintiff's
request, the Clerk of Court issued a Certificate of Default
pursuant to FRCP 55(a) against each Defendant. The Plaintiff
advises that lithe instant motion is granted, he anticipates filing
a motion for default judgment on behalf of the class against each
of the Defendants.
Before the Court is Magistrate Judge Robert W. Lehrburger's Oct.
21, 2021 Report and Recommendation, recommending that the
Plaintiff's motion for class certification be granted in part for a
narrowed class that does not include purchasers of tokens that the
Plaintiff did not purchase. Magistrate Judge Lehrburger advised the
parties that failure to file timely objections to the Report would
constitute a waiver of those objections on appeal. No objections
have been filed. Having reviewed the Report for clear error and
finding none, the Court adopts the Report.
II. Background
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. KuCoin charges a fee for each transaction
it facilitates. The issuers Idle 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.
In November 2018, the Plaintiff purchased and sold TOMO Tokens
through KuCoin incurring an estimated total loss of $4,183.51. The
Plaintiff alleges that the Token issuers2 and KuCoin failed to make
the robust disclosures required of securities, misled investors to
conclude that the Tokens were not securities, and deprived
investors of information necessary to reliably assess the
representations made or the risks of their investments.
The Plaintiff requests certification of the following class: "All
persons who purchased on the KuCoin exchange any of the Tokens --
EOS, SNT, OSP, KNC, TRX, OMG, LEND, ELF, CVC. and TOMO -- each of
which was listed for sale on a domestic U.S. exchange, or who
otherwise purchased on the KuCoin exchange any of the Tokens in a
domestic U.S. transaction, between Sept. 15, 2017 and July 2, 2021
and were injured thereby."
III. Discussion
A. The Plaintiff Has Class Standing to Represent Purchasers of TOMO
Tokens Only
Judge Daniels holds that Magistrate Judge Lehrburger correctly
concluded that the Plaintiff lacks class standing to represent
purchasers of Tokens that he did not purchase. As Magistrate Judge
Lehrburger noted, the Plaintiff easily meets the first requirement
-- he allegedly incurred a loss caused by the purchase and sale of
TOMO Tokens through KuCoin and the relief he requests would redress
that injury. However, whether the Plaintiff's injury "implicates
the same set of concerns" as putative class members who did not
purchase TOMO Tokens requires a detailed analysis.
The Plaintiff's federal and state securities claims would require
him to first demonstrate that the TOMO Tokens he purchases were
"securities" under the SEC's Framework for Investment Contract
Analysis which was derived from SEC v. W. J. Howey, Co., 328 U.S.
293 (1946). Magistrate Judge Lehrburger accurately reasoned that
establishing KuCoin's liability for each Token would require
individualized proof to satisfy Howey and that the Plaintiff would
only have a personal stake in providing proof for TOMO Tokens, not
all Tokens. He not only correctly analyzed this issue under the
relevant Second Circuit case law but also allowed the Plaintiff to
submit an expert declaration in support of his motion.
Judge Daniels agrees with Magistrate Judge Lehrburger that the
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").
B. TOMO Token Class Satisfies the Requirements of Rule 23(a) AND
23(13)(3) thus the Plaintiff's Motion to Certify is Granted in
Part
Magistrate Judge Lehrburger correctly found the TOMO Token Class
satisfies the numerosity, commonality, typicality, and adequacy of
representation elements of Rule 23(a). While the TOMO Token Class
is only 26 individuals, judicial economy will he served by
proceeding in one action. The class members have several common
questions related to their claims that are more than sufficient to
satisfy Rule 23(a)(2). The Plaintiff's "disputed issues of law or
fact" occupy essentially the same degree of centrality as the other
members of the TOMO Token Class. Finally, the Plaintiff has no
apparent conflict with the other class members and his chosen
counsel, Roche Freedman UP and Selendy & Gay, PLLC, have extensive
experience in complex financial class actions. Thus, the TOMO Token
Class satisfies the Rule 23(a) requirements.
The Plaintiff seeks certification under Rule 23(b)(3) which
requires that "the Court finds that the questions of law or fact
common to class members predominate over any questions affecting
only individual members, and that a class action is superior to
other available methods for fairly and efficiently adjudicating the
controversy."
Judge Daniels holds that Magistrate Judge Lehrburger properly
reasoned that "common issues predominate over individualized ones
because most all elements of the Plaintiff's and each proposed
class member's claims present questions that are susceptible to
class-wide resolution." Further, a class action suit is superior to
individual suits in this context: There is nothing to indicate that
absent class members have expressed interest in controlling the
prosecution of their claims; the losses of many class members are
too small for an individual action; a single forum avoids the risk
of inconsistent adjudication; and there is no evidence of any
likely difficulties in managing the class action. The TOMO Token
Class satisfies the Rule 23(b)(3) requirements.
IV. Conclusion
Magistrate Judge Lehrburger's Report is adioted. Judge Daniels
granted in part the Plaintiff's Motion to Certify Class and Appoint
Class Representative and Counsel for a narrower class that does not
include purchasers of Tokens that the 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 Sept. 15,
2017 and July 2, 2021."
Plaintiff Chase Williams is appointed as the Class Representative
and the law firms of Roche Freedman LLP and Selendy & Gay PLLC are
appointed as the Class Counsel.
The Clerk of Court is directed to close ECF No. 103 accordingly.
A full-text copy of the Court's Feb. 9, 2022 Memorandum Decision &
Order is available at https://tinyurl.com/2p8w939c from
Leagle.com.
LANNETT COMPANY: Securities Suit Shelved Pending Appeal
-------------------------------------------------------
Lannett Company, 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 in January 2022,
the Third Circuit granted the company's motion to stay the
securities case it was facing, pending a decision on the
interlocutory appeal.
In November 2016, a putative class action lawsuit was filed against
the company and two of its former officers in the federal district
court for the Eastern District of Pennsylvania, alleging that the
company and two of its former officers damaged the purported class
by making false and misleading statements regarding the company's
drug pricing methodologies and internal controls.
In December 2017, counsel for the putative class filed a second
amended complaint. The company filed a motion to dismiss the second
amended complaint in February 2018. In July 2018, the court granted
the company's motion to dismiss the second amended complaint. In
September 2018, counsel for the putative class filed a third
amended complaint alleging that the company and two of its former
officers made false and misleading statements regarding the impact
of competition on prices and sales of certain of the company's
products, regarding the potential effects on the company of
regulatory investigations and antitrust litigation, and regarding
the defendants' investigation of purported anticompetitive
conduct.
The company filed a motion to dismiss the third amended complaint
in November 2018. In May 2019, the court denied the company's
motion to dismiss the third amended complaint. In July 2019, the
company filed an answer to the third amended complaint.
In October 2020, counsel for the putative class filed a motion for
class certification. In March 2021, the company filed a brief in
opposition to the motion to certify the putative class. In August
2021, the court granted the motion to certify the proposed class,
to appoint class representatives, and to appoint class counsel. In
August 2021, the company filed a petition for permission to appeal
the court's class certification order. In September 2021, counsel
for the class filed a response in opposition to the company's
position. In November 2021, the United States Court of Appeals for
the Third Circuit granted the company's petition for permission to
appeal the class certification order. In January 2022, the Third
Circuit granted the company's motion to stay the case pending a
decision on the interlocutory appeal.
Lannett Company, Inc. develops, manufactures, packages, markets and
distributes solid oral and extended release, topical, liquids,
nasal and oral solution finished dosage forms of drugs, generic
forms of both small molecule and biologic medications based in
Pennsylvania.
LIBERTY MUTUAL: Parties' Counsel to Confer on Penegar Case Status
-----------------------------------------------------------------
In the case, CARRA JANE PENEGAR, Plaintiff v. LIBERTY MUTUAL
INSURANCE COMPANY, LIBERTY MUTUAL FIRE INSURANCE COMPANY, VERISK
ANALYTICS, INC., and ISO CLAIMS PARTNERS, INC., Defendant, Civil
Action No. 3:20-CV-585-RJC-DCK (W.D.N.C.), Magistrate Judge David
C. Keesler of the U.S. District Court for the Western District of
North Carolina, Charlotte Division, issued an Order directing the
counsel for the parties to confer regarding the status of the case
and the issues related to the Plaintiff's standing.
The matter is before the Court on Defendants Liberty Mutual
Insurance Co. and Liberty Mutual Fire Insurance Co.'s "Motion To
Dismiss Amended Complaint And Dismiss Or Strike Class Allegations"
and the "Motion Of Verisk Analytics And ISO Claims Partners To
Dismiss First Amended Class Action Complaint." These motions have
been referred to the undersigned Magistrate Judge pursuant to 28
U.S.C. Section 636(b), and immediate review is appropriate.
Judge Keesler has reviewed the parties' briefs and finds that the
case presents an interesting and close legal issue regarding the
Plaintiff's standing. As such, he will direct some limited
supplemental briefing.
Judge Keesler is particularly interested in the impact of the
"Agreement(s) For Final Compromise Settlement And Release," and
related documents attached to Defendant Liberty Mutual's memoranda,
on the Plaintiff's standing in the case. Liberty Mutual briefly
argues that the Plaintiff has released any claims against it and
that the parties' agreement, approved by the North Carolina
Industrial Commission, establishes that Liberty Mutual must
reimburse the Center for Medicare and Medicaid Services. Later, it
argues that the "Plaintiff does not, and cannot, have an
injury-in-fact because she released all of her claims against
Liberty Mutual."
Judge Keesler holds that it does not appear that the Plaintiff has
adequately addressed this issue. He says, the Court's decision on
the pending motion(s) is likely to be assisted by further briefing
on the Plaintiff's standing and the applicability of the
"Settlement And Release(s)" to the case. Without some persuasive
argument and legal authority from the Plaintiff, Judge Keesler is
inclined to take the parties at their word that they "placed great
importance on the need for finality in the underlying litigation"
and that the Plaintiff intended to release Defendant Liberty Mutual
from any further liability related to the underlying workers'
compensation claim.
Although he finds that the case presents some close and interesting
legal issues, Judge Keesler also observes that the entire action
could have been avoided by better communication between the
parties, the counsel, and the Center for Medicare and Medicaid
Services. Moreover, the facts and circumstances of the case suggest
that it may be a strong candidate for early settlement between the
parties.
In light of the foregoing, Judge Keesler ordered the counsel for
the parties to confer via some form of "live" communication, such
as telephone conference, Teams, or Zoom -- regarding the status of
the case and the issues related to the Plaintiff's standing. The
Plaintiff will file a supplemental brief of six pages or less. The
Defendants will file a supplemental brief of six pages or less.
A full-text copy of the Court's Feb. 9, 2022 Order is available at
https://tinyurl.com/23uzby7n from Leagle.com.
LIFE CARE: Atkinson Wage-and-Hour Suit Removed to W.D. Washington
-----------------------------------------------------------------
The case styled LAMONT ATKINSON, individually and on behalf of all
others similarly situated v. LIFE CARE CENTERS OF AMERICA, INC.,
Case No. 22-2-00662-5 SEA, was removed from the Superior Court for
King County to the U.S. District Court for the Western District of
Washington on February 17, 2022.
The Clerk of Court for the Western District of Washington assigned
Case No. 2:22-cv-00190 to the proceeding.
The case arises from the Defendant's alleged failure to properly
pay the Plaintiff and similarly situated employees for their time
spent waiting for and undergoing Covid-19 screening and testing
procedures in violation of the Washington wage and hour laws.
Life Care Centers of America, Inc. is a long-term elderly care
company, headquartered in Cleveland, Tennessee. [BN]
The Defendant is represented by:
Barbara J. Duffy, Esq.
Erin M. Wilson, Esq.
LANE POWELL PC
1420 Fifth Avenue, Suite 4200
P.O. Box 91302
Seattle, WA 98111-9402
Telephone: (206) 223-7000
Facsimile: (206) 223-7107
E-mail: duffyb@lanepowell.com
wilsonem@lanepowell.com
LOS ANGELES, CA: Concerns Raised Over DWP Class Action Settlement
-----------------------------------------------------------------
Dakota Smith, writing for The Denver Gazette, reports that in June
2015, attorney Tim Blood and other lawyers representing Los Angeles
Department of Water and Power customers over inaccurate charges
caused by a new billing system were growing increasingly suspicious
of the city attorney's office.
The city had entered into settlement discussions with an
out-of-state attorney who was also suing over the faulty charges.
Attorneys representing other plaintiffs couldn't get details about
the agreement.
Blood called City Attorney Mike Feuer to talk about his concerns,
but the city attorney quickly became angry and passed the phone to
a top deputy, Blood recalled in a recent interview.
Unable to get answers, Blood wrote to Feuer the next day, accusing
city attorneys of acting unethically and engaging in "secret"
discussions.
"As you are well aware, the DWP has a disturbing history of a lack
of transparency and deception, a history that continues and appears
to now be actively promoted by the city attorney's office," the San
Diego-based Blood wrote in the 2015 letter, which was first
reported by the Daily Journal, a legal newspaper.
Long before federal prosecutors alleged that Feuer's office helped
engineer a class-action lawsuit against the city over the faulty
DWP bills -- all part of an effort to control the settlement terms
-- attorneys and others said they raised red flags.
They didn't allege the criminal behavior that federal prosecutors
now say took place. But at court hearings and in letters to Feuer
and Mayor Eric Garcetti, Blood and others questioned the
settlement. They asked why the out-of-state lawyer was getting more
than $10 million in attorney fees, and why the city was so quick to
settle.
On Feb. 13, Blood said he doesn't feel vindicated by recent plea
agreements filed by prosecutors that lay out the bribes, kickback
and extortion that allegedly accompanied the scheme.
"While some people are finally being held accountable, the Los
Angeles political and legal culture that allowed this scandal to
grow has not been addressed," Blood said.
Back in 2015, "no one said or did anything other than circle the
wagons," Blood said.
As a result of the scandal, Feuer's top attorney overseeing civil
litigation agreed to plead guilty last month, and three others,
including the DWP's former top executive, have either pleaded
guilty or agreed to plead guilty to various crimes connected to the
billing fallout.
Feuer, who is running for mayor, declined to be interviewed. A
spokesman for the city attorney's office said Blood's letter did
not raise red flags about collusion, either in 2015 or today.
"At the time, Mr. Feuer interpreted Mr. Blood's letter as coming
from an aggressive plaintiffs' lawyer impugning his competition so
he could replace him as the lead negotiator in the settlement,"
said spokesman Rob Wilcox, adding that at the time the city was
committed to quickly paying back DWP customers.
Feuer's phone call with Blood was contentious because the city
attorney had significant disagreements with Blood's allegations,
Wilcox said.
Feuer has said he was unaware of the scheme, which began after a
faulty DWP billing system sent erroneous bills to hundreds of
thousands of customers in 2013.
With the utility facing multiple class-action lawsuits, the city's
legal team was authorized by an unnamed "city attorney official" in
Feuer's office to seek out a friendly lawyer to file a class-action
lawsuit against the city, according to court documents filed by
prosecutors.
That way, a lawsuit covering all the DWP claims could be settled
quickly and in a way that was "orchestrated by the city on the
terms desired by the city," prosecutors said.
The city entered into an initial settlement agreement with Ohio
attorney Jack Landskroner in 2015. Landskroner, who was never
charged with a crime and died last year, collected $10.3 million in
attorney fees in the case -- money that came from the DWP.
An attorney for the Landskroner estate declined to comment.
Federal prosecutors refer to an "Ohio attorney" in court filings
but have not named him. The Ohio attorney secretly funneled $2
million to Paul Paradis, an outside lawyer brought in to work for
the city attorney's office on the DWP billing litigation,
prosecutors said in Paradis' plea agreement.
Paradis drafted the lawsuit that the Ohio attorney filed against
the city, prosecutors said. Paradis used non-public information
provided to him by members of the city attorney's office and the
DWP to draft the complaint, prosecutors said in the agreement.
Along with Blood, attorney David Bower raised concerns about how
the class-action case was being handled. At a December 2015
hearing, Bower told the judge overseeing the case that Landskroner
had done no discovery, the process by which lawyers gather
evidence.
"There's not one deposition that's been taken in the case," Bower
told Los Angeles Superior Court Judge Elihu Berle, according to a
court transcript.
Bower, who also represented DWP customers, told the judge that the
city was using a legal strategy in which the defendant enters into
a weak settlement with the most "ineffectual class lawyers" to
quickly resolve the case and preclude other claims from being
filed.
Blood, the San Diego attorney, also accused city attorneys of using
that legal strategy in his letter to Feuer, which Bower signed.
"Everything we told the court that we suspected was happening was
happening," Bower said last month.
Wilcox, Feuer's spokesman, denied that the city's legal strategy
was to settle with the weakest plaintiffs. He also denied that
there was any "secret settlement," and that the mediator in charge
of the settlement kept the initial settlement terms and memorandum
of understanding confidential.
The initial settlement terms were publicly revised and approved
after the court heard and evaluated criticisms about them from
attorneys, Wilcox said. He also said the city is trying to recoup
the $10.3 million paid to Landskroner.
In 2019, Berle, the judge in the case, assigned a former federal
prosecutor to investigate the settlement.
A 595-page report released last year by Edward Robbins concluded
that two top attorneys in Feuer's office -- Thomas Peters, who
agreed last month to plead guilty to one count of aiding and
abetting extortion, and Jim Clark -- were the "shot callers" for a
"sham" lawsuit against the city.
A lawyer for Clark didn't respond to a request for comment. Another
attorney representing Clark previously told The Times that Clark
wasn't interviewed by Robbins.
Other attorneys for the city -- both staff and outside counsel --
who were working on the billing litigation violated ethics rules,
the report found. Some of those attorneys told The Times last year
they didn't act improperly, and others didn't respond to a request
for comment.
The report mentioned Blood's June 2015 letter, saying it "put Feuer
on notice of the problematic nature of the settlement. Mr. Blood's
instincts were good given his limited information."
Robbins' report and prosecutors' court filings also have
highlighted an internal email written in August 2015 by one of the
city's outside attorneys.
In an email received by half a dozen attorneys working for the
city, attorney Maribeth Annaguey listed 20 reasons why the high
attorneys' fees proposed by the mediator overseeing the case were
difficult to support. Landskroner had done "little demonstrative
work to advance the interests of the class," Annaguey wrote, and
the DWP had been committed to "fully refund" and credit its
customers before the lawsuits were filed.
Annaguey did not respond to questions from The Times.
Feuer spokesman Wilcox said Feuer didn't see Annaguey's email at
the time it was written, but said it did not raise red flags.
"While Ms. Annaguey's email shows she thought the attorneys' fee
award was too high, it does not suggest Ms. Annaguey believed any
illegal activity had occurred," Wilcox said.
Jamie Court, head of the nonprofit group Consumer Watchdog,
compares the scandal laid out by prosecutors to the chicanery and
corruption carried out by city leaders who schemed to bring water
from the Owens Valley to L.A. in the early part of the 20th
century.
Court wrote to Garcetti in October 2015, describing the settlement
as "one-sided and corrupted," according to the letter, which was
reviewed by The Times.
Court didn't know about the alleged criminal behavior at the time,
but he questioned the high fees paid to Landskroner, among other
issues.
"Make no mistake, this settlement is not fair to ratepayers," Court
wrote in the letter to Garcetti, which was also sent to Feuer. "It
is an inside job between the LADWP and an attorney who doesn't
truly represent the interest of the community."
Garcetti's team referred Court to Mel Levine, then the president of
the DWP board of commissioners, to discuss the settlement.
Despite talks with the city, Court still objected to the final
settlement, arguing it gave too much power to the DWP because it
let the utility determine how much customers should be repaid.
Asked about Court's letter, a Garcetti spokesman said last month
the blame for the scandal lies with the "criminals who conspired to
defraud the taxpayers for their own personal gain."
Court takes a different view, saying City Hall ignored the
warnings.
"No one on the inside bothered to take any of these criticisms
seriously," Court said. [GN]
MARQUE OF BRANDS: Abreu Files ADA Suit in S.D. New York
-------------------------------------------------------
A class action lawsuit has been filed against Marque of Brands
Americas, LLC. The case is styled as Luigi Abreu, individually, and
on behalf of all others similarly situated v. Marque of Brands
Americas, LLC, Case No. 1:22-cv-01335 (S.D.N.Y., Feb. 16, 2022).
The lawsuit is brought over alleged violation of the Americans with
Disabilities Act.
Marque of Brands Americas is a cosmetic products manufacturer in
Alexandria, Tennessee.[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
MARSH & MCLENNAN: Bohank Appeals Dismissal of Data Breach Suit
--------------------------------------------------------------
Plaintiff Nancy Bohank filed an appeal from a court ruling entered
in the lawsuit styled NANCY BOHNAK and JANET LEA SMITH, on behalf
of themselves and all others similarly situated v. MARSH & MCLENNAN
COMPANIES, INC., a Delaware corporation, and MARSH & MCLENNAN
AGENCY, LLC, a Delaware limited liability company, Case No.
1:21-cv-06096-AKH, in the United States District Court for the
Southern District of New York.
As reported in the Class Action Reporter on July 23, 2021, the
lawsuit is brought against the Defendants for their failure to
properly secure and safeguard sensitive information of (i)
Defendants' current and former employees and spouses and dependents
thereof; (ii) current and former employees of Defendants' clients,
contractors, applicants, and investors; and (iii) individuals whose
information Defendants acquired through the purchase of or merger
with another business. The sensitive information Defendants failed
to properly secure, includes, without limitation, name, Social
Security or other federal tax identification number, driver's
license or other government issued identification, and passport
information (personally identifiable information or PII).
According to the complaint, on or before April 26, 2021, Defendants
learned that "an unauthorized actor had leveraged a vulnerability
in a third party's software since at least April 22, to gain access
to a limited set of data in its environment" (Data Breach). The
Data Breach ended on April 30, 2021, approximately one week after
it commenced. At the time of the Data Breach, the compromised set
of data stored the PII of at least 7,000 individuals.
The PII was compromised due to Defendants' negligent and/or
careless acts and omissions and the failure to protect the PII of
Plaintiffs and Class Members, asserts the complaint. In addition to
Defendants' failure to prevent the Data Breach, after discovering
the breach, Defendants waited approximately two months to report it
to various states' Attorneys General and Class Members. Defendants
have also purposefully maintained secret the specific
vulnerabilities and root causes of the breach and has not informed
Plaintiffs and Class Members of that information, adds the
complaint.
On October 8, 2021, the Defendants filed a motion to dismiss
pursuant to Federal Rules of Civil Procedure 12(b)(1) and
12(b)(6).
On January 17, 2022, Judge Alvin K. Hellerstein entered an order
denying in part Defendants' motion to dismiss for lack of subject
matter jurisdiction, and granting in part the motion for failure to
state a claim.
The Plaintiff seeks a review of this ruling.
The appellate case is captioned as Bohnak v. Marsh & McLennan
Companies, Inc., Case No. 22-319, in the United States Court of
Appeals for the Second Circuit, filed on Feb. 17, 2022.[BN]
Plaintiff-Appellant NANCY BOHNAK, on behalf of herself and all
others similarly situated, is represented by:
Jonathan M. Sedgh, Esq.
MORGAN & MORGAN
850 3rd Ave, Suite 402
Brooklyn, NY 11232
Telephone: (212) 738-6839
Facsimile: (813) 222-2439
E-mail: jsedgh@forthepeople.com
- and -
John A. Yanchunis, Esq.
Ryan D. Maxey, Esq.
MORGAN & MORGAN
201 N. Franklin Street, 7th Floor
Tampa, FL 33602
Telephone: (813) 223-5505
E-mail: jyanchunis@ForThePeople.com
rmaxey@ForThePeople.com
MATCH GROUP: Won't Charge Older Users More for Tinder+ Amid Lawsuit
-------------------------------------------------------------------
Ahmedabad Mirror reports that following a new report questioning
Tinder's practice of charging older users "substantially more", the
popular dating app has said it will no longer charge older users
more to use Tinder+, media reports say.
The report, from Mozilla and Consumers International, detailed just
how much Tinder+ pricing can vary based on users' age, reports
Engadget.
The report relied on "mystery shoppers" in six countries -- the US,
Netherlands, New Zealand, Korea, India and Brazil -- who signed up
for Tinder+ and reported back how much the app charged for the
subscription.
According to the report, Tinder users between the ages of 30 and 49
were charged an average of 65.3 per cent more than their younger
counterparts in every country except Brazil.
Tinder's age-based pricing for Tinder, which gives users access to
premium features like unlimited likes, has long been a source of
controversy for the dating app, the report said.
When it launched, the company said it charged older users more
because younger people were more "budget-constrained". Since then,
the dating app has been hit with at least one class-action lawsuit
over the practice.
But though Tinder had pledged to end the practice in some areas,
like California where the class action suit originated, the company
continued to offer different rates in many countries.
The latest report from Consumers International highlighted how much
the dating app's subscription pricing could vary.
In New Zealand, where the mystery shoppers were quoted a total of
25 different prices, the lowest quoted price was $4.95, while the
highest was $24.54, according to the report.
In the Netherlands, there were 31 different prices, with the lowest
at $4.45 and the highest at $25.95.
Now, Tinder said it plans to abandon its age-based pricing
altogether. In a blog post, the dating all said younger users were
offered subscriptions at different rates to "make Tinder affordable
for those in school or early in their careers".
The company said it ended the practice in the US, Australia and the
UK, and that it plans on "eliminating age-based pricing for all of
our members in all markets by the end of the second quarter this
year". [GN]
MAXIMUS INC: Order on Class Cert. Deadline Entered in Brickman
--------------------------------------------------------------
In the class action lawsuit captioned as Brickman v. Maximus, Inc.,
et al.,Case No. 2:21-cv-03822 (S.D. Ohio), the Hon. Judge Kimberly
A. Jolson entered an order on motion for miscellaneous relief.
The Plaintiff's motion for class certification deadline is 120 days
from the substantial completion of fact discovery deadline, says
Judge Jolson.
The nature of suit states contract -- civil miscellaneous case.
Maximus is an American government services company, with global
operations in countries including the United States, Australia,
Canada, and the United Kingdom. The company contracts with
government agencies to provide services to manage and administer
government-sponsored programs.[CC]
MAYFLOWER TRANSIT: Class Settlement in Greenly Gets Initial Nod
---------------------------------------------------------------
In the class action lawsuit captioned as DAVID GREENLEY,
individually and on behalf of all others similarly situated, v.
MAYFLOWER TRANSIT, LLC, Case No. 21-cv-339-WQH-MDD (S.D. Cal.), the
Hon. Judge William Q. Hayes entered an order as follows:
1. The Court grants the request for Preliminary Approval of
the Class Action Settlement.
Pursuant to Rule 23(e) of the Federal Rules of Civil
Procedure, the Court grants the Parties' request for
certification of the following Rule 23 Settlement Class
for the sole and limited purpose of implementing the terms
of the Settlement Agreement, subject to this Court's final
approval:
A. The Confidential Communication Class for Violation of
Penal Code, consisting of:
"All persons in California who booked a move online
through the Mayflower Gemini program and whose
conversations were recorded without their consent, by
Defendant, and or its agents, within the one year prior
to the filing of the Complaint."
B. The Cellular Phone Communication Sub-Class for
Violation of Penal Code section 632.7, consisting of:
"All persons in California who booked a move online
through the Mayflower Gemini program and whose cellular
telephone conversations were recorded without their
consent, by Defendant, and or its agents, within the
one year prior to the filing of the complaint."
3. The Court recognizes that certification under this Order
is for settlement purposes only and shall not constitute
or be construed as an admission by Defendant that this
action is appropriate for class treatment for litigation
purposes.
4. The Court appoints and designates: (a) Plaintiff David
Greenley as the ClassRepresentative and (b) the firms of
Swigart Law Group, APC and The Barry Law Office, Ltd as
Class Counsel for the Class.
5. Any Settlement Class Member may opt out of the Settlement
and enter an appearance through his or his own counsel at
such Class Member's own expense.
6. The Court hereby preliminarily approves the Settlement in
the Maximum Settlement Amount of $1,450,000.00, with the
Net Settlement Amount being calculated by subtracting the
following from the Maximum Settlement Amount:
(1) Class Counsel's attorneys' fees (not to exceed 25% of
the Maximum Settlement Amount or $362,500.00);
(2) Class Counsel's Costs (not to exceed $50,000.00);
(3) Class Representative Service Award to be paid to
Representative David Greenley not to exceed $10,000;
and
(4) the Claims Administration Costs to the Claims
Administrator, CPT Group, Inc.
The Net Settlement Amount remaining for paying Individual
Settlement Payments to the Participating Class Members is
anticipated to be approximately $1,010,000.00. The Court
further preliminarily approves the formulas provided in
the Settlement for calculating Individual Settlement
Payments, the Opt-Out Deadline, the Objection Deadline,
and the submission deadline.
7. The Court finds on a preliminary basis that the
Settlement, including the Class Representative Service
Award, Class Counsel Fees and Costs, the Claims
Administration Costs and the proposed allocation of
Individual Settlement Payments to Participating Class
Members, appears to be within the range of reasonableness
of a settlement that could ultimately be given final
approval by this Court.
8. A final approval hearing shall be held before this Court
on August 4, 2022, in 12 Courtroom 14B of the United
States District Court, Southern District of California, at
10:30 a.m. to determine all necessary matters concerning
the Settlement, including whether the proposed Settlement
of the Action on the terms and conditions provided for in
the Settlement are fair, adequate and reasonable and
should be finally approved by the Court and whether a
Judgment should be entered herein.
9. The Court appoints and designates CPT Group, Inc., as the
third-party Claims Administrator. The Court hereby directs
the Claims Administrator to provide the approved Notice
Packet documents to Settlement Class Members and
administer the Settlement in accordance with the
procedures set forth in the Settlement herein, including
in conformance with the schedule set forth below.
10. Any Settlement Class Member may choose to opt out of and
be excluded from the Settlement as provided in the
Settlement and Notice of Class Action Settlement and by
following the instructions for requesting exclusion.
Mayflower Transit, LLC, a subsidiary of UniGroup, is an American
moving company based in Fenton, Missouri. Mayflower operates as an
agent owned co-op to coordinate loads, packing, and third-party
services.
A copy of the Court's order dated Feb. 10, 2021 is available from
PacerMonitor.com at https://bit.ly/3oY6GkF at no extra charge.[CC]
MCKESSON INC: Pending Bid to Stay Dismissed as Moot in Nathan
-------------------------------------------------------------
In the class action lawsuit captioned as CHRIS, NATHAN, and JOHN
DOE, individually and on behalf of all others similarly situated,
v. MCKESSON, INC., and DAVID CIFU, Case No. 4:19-cv-00189-RSB-CLR
(S.D. Ga.), the Hon. Judge Chrsitopher L. Ray entered an order
that:
1. The case is stayed pending disposition of the pending
Motions to Dismiss. The Parties are free to file any
motion they deem appropriate during the pendency of the
stay, but the stay shall apply to any opposing party's
obligation under the Federal Rules of Civil Procedure or
this Court's Local Rules to respond to that motion, unless
specifically directed by the Court. Accordingly, the
pending Motion to Stay is dismissed as moot.
2. At the hearing, counsel for defendant McKesson agreed that
the stay, including a stay of any party's obligation to
respond to motions filed during its pendency, mooted the
relief requested in its Motion for Protective Order.
Accordingly, that motion is also dismissed as moot.
McKesson is an American company distributing pharmaceuticals and
providing health information technology, medical supplies, and care
management tools.
A copy of the Court's order dated Feb. 10, 2021 is available from
PacerMonitor.com at https://bit.ly/33rRR24 at no extra charge.[CC]
MCMC LLC: Mauthe Seeks to Extend Reply Brief Date to March 14
-------------------------------------------------------------
In the class action lawsuit captioned as ROBERT W. MAUTHE, M.D.,
P.C., individually and on behalf of all others similarly situated,
v. MCMC, LLC, Case No. 5:18-cv-01901-EGS (E.D. Pa.), the Plaintiff
asks the Court to enter an order extending its deadline for its
reply brief to March 14, 2022.
The Court said, "There is good cause for permitting the extension,
and no harm or prejudice will result. The Plaintiff's counsel has
several other pressing matters around the current due date,
including a motion for summary judgment and brief due in another
case pending in this district, as well as a summary judgment
response and a lengthy reply in support of class certification due
in the Eastern District of Michigan. In addition, plaintiff has an
all-day mediation in a third action. The Defendant's counsel agrees
to the extension provided that the Court will reschedule the oral
argument to a time prior to June 2022, when Defendant's counsel
will be unavailable while he is traveling in California to his
son’s wedding and for vacation in connection therewith."
On October 28, 2021, this Court entered a briefing schedule after
holding a telephone conference with counsel. On December 17, 2021,
pursuant to that schedule, Plaintiff filed a renewed motion for
class certification and a brief in support; and Defendant submitted
its brief in opposition on January 31, 2022.
The briefing schedule provides that Plaintiff shall have until
February 21, 2022, to file a reply brief. Oral argument presently
set for March 7, 2022 at 9:30 a.m., in person on the 4th floor of
the Holmes Building, 101 Larry Holmes Drive, in Easton,
Pennsylvania.
MCMC LLC operates as a managed care services company.
A copy of the Plaintiff's motion dated Feb. 10, 2021 is available
from PacerMonitor.com at https://bit.ly/3HTkjca at no extra
charge.[CC]
The Plaintiff is represented by:
Phillip A. Bock, Esq.
David M. Oppenheim, Esq.
Molly E. Stemper, Esq.
B OCK HATCH & OPPENHEIM, LLC
203 N. La Salle St., Ste. 2100
Chicago, IL 60601
Telephone: (312) 658-5500
E-mail: service@classlawyers.com
- and -
Richard E. Shenkan, Esq.
SHENKAN INJURY LAWYERS, LLC
P.O. Box 7255
New Castle, PA 16107
Telephone: (248) 562-1320
Facsimile: (888) 769-1774
E-mail: rshenkan@shenkanlaw.com
MDL 2966: Two Expert Witnesses in Xyrem Antitrust Suit Disqualified
-------------------------------------------------------------------
In the case, IN RE XYREM (SODIUM OXYBATE) ANTITRUST LITIGATION,
Case No. 20-md-02966-RS (N.D. Cal.), Judge Richard Seeborg of the
U.S. District Court for the Northern District of California issued
an order:
a. granting in part and denying in part the Plaintiffs' motion
to strike affirmative defenses included in the Defendants'
answers to the complaint;
b. granting the Defendants leave to amend for any affirmative
defenses for which the motion to strike is granted; and
c. granting Defendant Hikma's motion to disqualify two of the
Plaintiffs' expert witnesses.
I. Background
In the multidistrict litigation, the Plaintiffs aver that the
Defendants engaged in an anticompetitive scheme to delay generic
competition for Xyrem, a drug used to treat cataplexy and daytime
sleepiness in patients with narcolepsy. The Defendants have
answered the operative complaints.
The multidistrict litigation arises from alleged anticompetitive
conduct in the distribution of Xyrem, a prescription sodium oxybate
drug product. Xyrem was sold by Jazz Pharmaceuticals, Inc., Jazz
Pharmaceuticals Ireland Limited, and Jazz Pharmaceuticals Public
Limited Company (collectively "Jazz"). The complaints aver that
Jazz and the other Defendants engaged in anticompetitive conduct to
delay a generic version of Xyrem from entering the market.
In addition to Jazz, the Defendants include generic companies Hikma
Labs, Inc. (formerly known as Roxane Laboratories, Inc.), Hikma
Pharmaceuticals USA Inc. (formerly known as West-Ward
Pharmaceuticals Corp.), Eurohealth (USA), Inc., and Hikma
Pharmaceuticals plc (collectively, "Hikma"), which are all related
companies, and Amneal Pharmaceuticals LLC ("Amneal"), Par
Pharmaceuticals, Inc., and Lupin Ltd, Lupin Pharmaceuticals Inc.,
and Lupin, Inc. (collectively "Lupin").
The MDL comprises both class and individual actions. Eight of the
cases making up the MDL involve putative class actions. The judge
previously assigned to the MDL appointed co-lead counsel, and the
Plaintiffs filed a Consolidated Class Action Complaint. After the
filing of the Consolidated Class Action Complaint, Plaintiff United
Healthcare Services' ("UHS") action was transferred to the district
by the Judicial Panel on Multidistrict Litigation. All parties have
agreed that UHS's complaint overlaps significantly with the
Consolidated Class Action Complaint, and that UHS will litigate its
overlapping claims to resolution before litigating any remaining
causes of action.
Following the Defendants' answers to the Amended Consolidated Class
Action Complaint and the UHS Complaint, the Class Plaintiffs and
UHS brought a motion to strike affirmative defenses. Defendant
Hikma brings a motion to disqualify its former expert witnesses,
Dr. Michael I. Shamos and Dr. Robert T. Hrubiec, as expert
witnesses for Class Plaintiffs.
II. Discussion
A. Motion to Strike Affirmative Defenses
The Plaintiffs move to strike seven affirmative defenses raised by
the Defendants in their answers to the Consolidated Class Action
Complaint and the UHS Complaint: Laches, estoppel, waiver, the
Takings Clause, intervening cause, passed-on overcharges, and ultra
vires.
1. Laches
Defendants Jazz, Amneal, Lupin, Hikma, and Par raise laches
defenses to both complaints. A laches defense "requires proof of
the following elements: [1] the plaintiff delayed filing suit for
an unreasonable and inexcusable length of time from the time the
plaintiff knew or reasonably should have known of its claim against
the defendant, and [2] the delay operated to the prejudice or
injury of the defendant."
The Defendants point to portions of the complaints they believe
could indicate that the Plaintiffs were already on notice of their
claims. They argue "the bare fact of delay creates a rebuttable
presumption of prejudice." The Plaintiffs argue the statement in
Boone is dicta, citing Bratton v. Bethlehem Steel Corp., 649 F.2d
658, 667 n.8 (9th Cir. 1980).
Judge Seeborg holds that the laches defense may not succeed on the
merits, but at this stage the motion to strike this defense is
denied as the Defendants have raised a plausible laches defense.
2. Estoppel
Defendants Jazz, Amneal, Lupin, Hikma, and Par raise estoppel
defenses to both complaints. They, however, fail to specify which
type of estoppel doctrine they seek to invoke as a defense, or
explain how any facts pled relate to the elements of their estoppel
defense. The motion to strike as to the estoppel defense is
therefore granted.
3. Waiver
Defendants Jazz, Amneal, Lupin, and Par raise waiver defenses to
both complaints. "Waiver is the intentional relinquishment of a
known right with knowledge of its existence and the intent to
relinquish it." Fishman v. Tiger Nat. Gas Inc., No. C 17-05351 WHA,
2018 WL 4468680, at *4 (N.D. Cal. Sept. 18, 2018) (citation
omitted). Defendants have failed to identify in this affirmative
defense what right Plaintiffs relinquished. The motion to strike as
to the waiver defense is therefore granted.
4. Takings Clause
Hikma raises a Takings Clause defense to both Complaints. A claim
under the Takings Clause of the Fifth Amendment requires showing
"the Government has both taken property and denied just
compensation."
Judge Seeborg finds that Hikma has failed to specify in its
affirmative defense how the Government has taken property and how
Hikma has been denied just compensation. The motion to strike as to
the Takings Clause defense is therefore granted.
5. Superseding and intervening cause
Hikma raises an intervening cause defense to the Consolidated Class
Action Complaint. Although "an antitrust violation can be the
proximate cause of a plaintiff's injury even if there are
additional independent causes of the injury," sometimes "an
independent cause fully accounts for the plaintiff's alleged injury
and breaks the causal connection between the alleged antitrust
violation and the plaintiff's injury." Hikma's basis for the
defense, as pled in the answer, is that "the role and actions of
third-party payors prevented any anticompetitive overcharges"
because third-party payors negotiate contract rates for drugs,
which then sets the prices paid for the drug. At this stage, the
laintiffs have pled a plausible intervening cause defense, and the
motion to strike as to this defense is denied.
6. Passed-on overcharges
Par raises a passed-on overcharges defense to both complaints,
stating in its answers that the "Plaintiffs' claims are barred, in
whole or in part, to the extent they seek damages for any alleged
overcharge that was passed on to others." The Defendants contend
the essence of this defense is that "indirect purchaser claims are
limited to the harm that plaintiff actually suffered, and that
plaintiffs cannot recover the amount of any overcharge that they
passed-on to their customers."
Yet, as noted in cases cited by the Plaintiffs, Judge Seeborg finds
that it is unclear whether this defense is applicable to end-payor
health and benefit plans in pharmaceutical cases. At this stage,
therefore, he declines to strike this defense.
7. Ultra vires
Par raises an ultra vires defense to both complaints. It states
that to the extent any actionable conduct occurred, the Plaintiffs'
claims are barred to the extent that such conduct was committed by
an individual acting ultra vires. No employee of Par had or has the
authority to cause Par to violate any law."
Judge Seeborg holds that Par fails to explain what ultra vires
conduct it alleges, and therefore it has not adequately pled this
defense. The motion to strike as to the ultra vires defense
accordingly is granted.
8. Conclusion as to Motion to Strike Affirmative Defenses
For many of the defenses for which the motion to strike is granted,
Judge Seeborg concludes that it is unclear whether the deficiencies
may be cured. As leave to amend is to be freely granted, at this
juncture, the Defendants are given leave to amend.
B. Motion to Disqualify Expert Witnesses
The Class Plaintiffs have retained two expert witnesses, Dr.
Michael I. Shamos and Dr. Robert T. Hrubiec, as expert witnesses.
Dr. Shamos and Dr. Hrubiec were previously retained by Hikma during
its patent litigation against Jazz. Hikma seeks to disqualify Dr.
Shamos and Dr. Hrubiec, arguing that the two were given
confidential information during their work with Hikma, and that
Hikma will suffer prejudice if the Class Plaintiffs are allowed to
present opinions from Dr. Shamos and Dr. Hrubiec.
Of the two requirements to grant a motion to disqualify, the
existence of a confidential relationship and the disclosure of
relevant confidential information, the Plaintiffs do not dispute
the latter. The focus of this analysis is thus whether relevant
confidential information was disclosed, as well as "whether
disqualification would be fair to the affected party and would
promote the integrity of the legal process."
Hikma argues Dr. Shamos and Dr. Hrubiec received five types of
confidential information: (1) information on Hikma counsel's
litigation strategy; (2) information relating to, but not included
in, the expert reports; (3) information on topics other than the
subjects of their expert reports; (4) Hikma counsel's thoughts on
the strengths and weaknesses of Hikma's patent litigation position
and ultimate likelihood of success; and (5) other written attorney
work product.
The Class Plaintiffs first argue that because they have instructed
Dr. Shamos and Dr. Hrubiec "not to disclose any of the purportedly
confidential information that Hikma identifies, Opposition to
Motion to Disqualify, at pg. 11, there are no concerns about the
disclosure of confidential information. They, however, have offered
no case establishing that a promise not to ask for confidential
information can overcome a motion to disqualify in which the
requirements for disqualification are otherwise satisfied.
The Class Plaintiffs also argue Hikma has not met its burden of
showing it provided relevant confidential information to the
experts. They argue that the validity of the patents, a subject of
the expert reports in the earlier litigation, is only indirectly
related to this litigation. Hikma has provided a declaration from
Alan Clement, one of its lawyers in the earlier litigation, stating
he provided his thoughts on the success of litigation to Dr. Shamos
and Dr. Hrubiec. Those thoughts are relevant to the present
litigation. Hikma has met its burden of showing it disclosed
relevant confidential information to Dr. Shamos and Dr. Hrubiec.
Further, prejudice to the Class Plaintiffs will be minimal, Judge
Seeborg finds. He states, the case is in the early stages of
litigation, and the Class Plaintiffs will have an adequate
opportunity to find and retain other expert witnesses. Further, the
Class Plaintiffs were aware of this possible conflict at the time
they sought out and retained Dr. Shamos and Dr. Hrubiec. The
greatest prejudice to the Class Plaintiffs will be expense. Other
experts who are not already familiar with the Jazz-Hikma litigation
and the patents at issue will require more time, and thus will bill
more hours, to review the materials and establish their opinions.
That an expert will need to start from scratch in their review of
the case, however, is not a significant prejudice to Class
Plaintiffs. Indeed, the Class Plaintiffs have not argued that it
will be difficult to find an expert able to opine on the issues at
hand.
Public policy concerns also do not prevent disqualification, Judge
Seeborg finds. Dr. Shamos and Dr. Hrubiec were both retained for an
extended period and developed expert reports. Further,
disqualification only bars Dr. Shamos and Dr. Hrubiec from
consulting on "identical claims" in litigation against the company
that previously retained them. Moreover, this is not a "situation
in which a party retains an expert solely for the purpose of
preempting access to that expert by opposing counsel." In short,
consideration of fairness and prejudice weighs in favor of
disqualification.
When considering the requirements for disqualification along with
fundamental fairness and prejudice concerns, disqualification of
Dr. Shamos and Dr. Hrubiec is proper, Judge Seeborg holds. Hence,
Hikma's motion to disqualify these experts is therefore granted.
III. Conclusion
For all the foregoing reasons, Judge Seeborg granted in part and
denied in part the Plaintiffs' motion to strike affirmative
defenses. For any affirmative defenses for which the motion is
granted, the Defendants are granted leave to amend. Judge Seeborg
granted Hikma's motion to disqualify expert witnesses.
A full-text copy of the Court's Feb. 9, 2022 Order is available at
https://tinyurl.com/yc3wnz5p from Leagle.com.
MDL 2968: Final Judgment Entered in Covid-19 Travel Insurance Suit
------------------------------------------------------------------
Judge John G. Koeltl of the U.S. District Court for the Southern
District of New York entered Final Judgment in the case, IN RE
GENERALI COVID-19 TRAVEL INSURANCE LITIGATION, Case No. 20-md-2968
(S.D.N.Y.).
Following transfer to the Court as ordered by the U.S. Judicial
Panel on Multidistrict Litigation, the Plaintiffs filed a
consolidated class action complaint against Defendants Generali US
Branch and Customized Services Administrators, Inc. alleging breach
of insurance contracts and related non-contract claims.
The present Court granted the Defendants' motion to dismiss the
claims of Plaintiffs Clonts, Garner, Johner, Sharma, Morris, and
Schrader for failure to state a claim under Federal Rule of Civil
Procedure 12(h)(6). It also granted the Defendants' motion to
dismiss Plaintiff Oglevee's claims arising out of the insurance
policy she purchased in connection with her flight tickets, while
staying as subject to arbitration her other claims arising out of a
different insurance policy purchased through VRBO.com. As all of
the Plaintiffs' claims that the Court has not dismissed are stayed
pending conclusion of arbitration, Judge Koeltl now enters the
Final Judgment.
The cases and claims of Plaintiffs Clonts, Garner, Johner, Sharma,
Morris, and Schrader are severed and dismissed with prejudice for
the reasons stated in the Court's Dec. 21, 2021 Order.
The claims of Plaintiff Oglevee arising out of the Generali travel
insurance policy she purchased in connection with her flight
tickets are severed and dismissed with prejudice. The Final
Judgment does not apply to Plaintiff Oglevee's other claims (i.e.,
those arising out of the policy she purchased through VRBO.com),
which remain stayed pending the conclusion of arbitration.
Finding no just reason for delay, Judge Koeltl enters the judgment
under Rule 54(b) of the Federal Rules of Civil Procedure. The Clerk
is respectfully directed to enter the Final Judgment against
Plaintiffs Clonts, Gamer, Johner, Sharma, Morris, Schrader, and
Oglevee and in favor of Defendants Generali US Branch and
Customized Services Administrators, Inc. forthwith.
A full-text copy of the Court's Feb. 9, 2022 Final Judgment is
available at https://tinyurl.com/yckkd67w from Leagle.com.
MEDICAL LIABILITY: Order Dismissing Castagna Class Suit Affirmed
----------------------------------------------------------------
In the case, MARK CASTAGNA, ETC., ET AL., Appellants v. JOHN
CAPOTORTO, ET AL., Respondents, 2019-04656, Index No. 516767/18
(N.Y. App. Div.), the Appellate Division of the Supreme Court of
New York, Second Department, affirmed with costs the order of Judge
Sylvia G. Ash of the Supreme Court, Kings County.
The order dated Feb. 27, 2019, granted the Defendants' motion
pursuant to CPLR 3211(a) to dismiss the amended complaint.
The case is a putative class action, inter alia, to recover damages
for breach of fiduciary duty. The Plaintiffs are representatives of
the approximately 18,000 policyholders of Medical Liability Mutual
Insurance Co. (MLMIC), and the Defendants are members of MLMIC's
Board of Directors.
On Sept. 6, 2018, after a public hearing, the New York State
Superintendent of Financial Services approved MLMIC's Plan of
Conversion seeking to convert MLMIC from a mutual insurance company
to a stock insurance company, and the acquisition of MLMIC by
National Indemnity Co. (NICO) in exchange for $2.502 billion.
The Plaintiffs subsequently commenced the putative class action
alleging breach of fiduciary duty, negligent misrepresentation, and
violation of General Business Law Section 349 in connection with
the Plan of Conversion. The Defendants moved pursuant to CPLR
3211(a) to dismiss the amended complaint. In an order dated Feb.
27, 2019, the Supreme Court granted the motion. The Plaintiffs
appeal.
The Appellate Division holds that the Supreme Court correctly
determined that the causes of action asserted in the amended
complaint are barred as a collateral attack on the Superintendent's
determination. It finds that the collateral attack doctrine does
not exist apart from administrative collateral estoppel. Therefore,
a cause of action is barred as an impermissible collateral attack
on the Superintendent's determination when there is identity of
issues and when the Plaintiffs had a full and fair opportunity to
contest the Superintendent's determination. Thus, the collateral
attack doctrine only bars causes of action of which the
Superintendent was aware when approving a demutualization plan.
The Plaintiffs do not seek to overturn the Superintendent's
decision. Rather, they seek monetary damages, as they allege that
the sale of MLMIC to NICO for $2.502 billion was undervalued.
Therefore, the question before the Court is whether the Plaintiffs
had the opportunity to contest the validity of the financial
information provided to the Superintendent which formed the basis
of her approval of the transaction.
The Appellate Division determines that the record demonstrates that
the Plaintiffs had a full and fair opportunity to contest the
proposed Plan of Conversion at a public hearing, and that the
Superintendent's review of the proposed Plan of Conversion was
broad in scope, including review of an independent financial
valuation and testimony and evidence taken at the public hearing.
The Superintendent specifically considered and rejected the claim
that information regarding the Plan of Conversion that was provided
to the plaintiffs by the defendants was misleading. The
Superintendent had before her ample financial information to make a
thorough determination as to the accuracy of the independent
valuation of MLMIC performed by Ernst & Young, which set forth four
different methods of calculation. This information included an
expert's opinion provided by the Plaintiffs. The Superintendent
concluded that the Plan of Conversion, including the $2.502 billion
consideration, was fair and equitable and in the best interests of
the policyholders and the public.
Though the Plaintiffs now couch their claims in terms of breach of
fiduciary duty, negligent misrepresentation, and violation of
General Business Law Section 349, they seek to indirectly challenge
the sufficiency of the Plan of Conversion which was approved by the
Superintendent. Accordingly, dismissal of the amended complaint as
an improper collateral attack was properly directed.
The parties' remaining contentions need not be reached in light of
this determination.
A full-text copy of the Court's Feb. 9, 2022 Decision & Order is
available at https://tinyurl.com/mr2n6j5v from Leagle.com.
Brown Rudnick LLP, New York, NY (Richard L. Stone --
rstoneesq@aol.com -- and Sigmund S. Wissner-Gross --
swissnergross@brownrudnick.com -- of counsel), for the Appellants.
Wollmuth Maher & Deutsch LLP, New York, NY (William A. Maher --
wmaher@wmd-law.com -- Michael C. Ledley -- mledley@wmd-law.com --
and Robert C. Penn, Jr. -- rpenn@shertremonte.com -- of counsel),
for the Respondents.
MEDNAX SERVICES: Perez FCRA Suit Removed to S.D. Florida
--------------------------------------------------------
The case styled ALBERTO PEREZ, CREAH FISHLEY, and KATHY CARR,
individually and on behalf of all others similarly situated v.
MEDNAX SERVICES, INC., Case No. CACE-22-001446, was removed from
the Circuit Court of the Seventeenth Judicial District in and for
Broward County, Florida, to the U.S. District Court for the
Southern District of Florida on February 17, 2022.
The Clerk of Court for the Southern District of Florida assigned
Case No. 0:22-cv-60359 to the proceeding.
The case arises from the Defendant's alleged failure to provide
pre-adverse action notice in violation of the Fair Credit Reporting
Act.
Mednax Services, Inc. is a physician services provider based in
Florida. [BN]
The Defendant is represented by:
Martin B. Goldberg, Esq.
Emily L. Pincow, Esq.
LASH & GOLDBERG LLP
Suite 1200, Miami Tower
100 Southeast Second Street
Miami, FL 33131-2100
Telephone: (305) 347-4040
Facsimile: (305) 347-4050
E-mail: mgoldberg@lashgoldberg.com
epincow@lashgoldberg.com
MONMOUTH REAL ESTATE: Faces Fiduciary Breach Charges Over Merger
----------------------------------------------------------------
Monmouth Real Estate Investment Corporation 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 company and its members of
the board were named defendants alleging that they have violated
fiduciary duties by misrepresenting or omitting allegedly material
information in the proxy statement relating to the proposed merger
with Industrial Logistics Properties Trust (ILPT).
The company and the members of its Board of Directors are also
defendants in a purported class action lawsuit filed by a purported
shareholder that alleges, among other things, that the defendants
violated fiduciary duties by misrepresenting or omitting allegedly
material information in the proxy statement relating to the
proposed merger with ILPT and seeks attorneys' fees and expenses in
connection with disclosures related to a previous merger agreement
the company had entered into with another party which was
terminated after it failed to receive approval from the
shareholders.
Monmouth Real Estate Investment Corporation operates as a real
estate investment trust (REIT) based in New Jersey
MYOSTORM LLC: Paguada Files ADA Suit in S.D. New York
-----------------------------------------------------
A class action lawsuit has been filed against Myostorm, L.L.C. The
case is styled as Josue Paguada, on behalf of himself and all
others similarly situated v. Myostorm, L.L.C., Case No.
1:22-cv-01287 (S.D.N.Y., Feb. 15, 2022).
The lawsuit is brought over alleged violation of the Americans with
Disabilities Act.
Myostorm -- https://www.myostorm.com/ -- massage balls are used for
trigger point therapy, neck and back massage, pain relief, and
exercise recovery.[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
NATIONAL FOOTBALL: Biden Comments on Hiring Practices Amid Lawsuit
------------------------------------------------------------------
Paul LeBlanc, writing for CNN, reports that President Joe Biden
waded into the controversy surrounding the NFL's hiring practices
in an interview that aired on Feb. 13, stating it's "just some
generic decency" to ensure more head coaching opportunities for
Black and minority candidates.
"The whole idea that a league that is made up of so many athletes
of color, as well as so diverse, that there's not enough African
American qualified coaches to manage these NFL teams? It just seems
to me that it's a standard that that they'd want to live up to,"
Biden told NBC News' Lester Holt in an interview that aired before
the Super Bowl.
"It's not a requirement of law, but it's a requirement I think of
just some generic decency."
The President's comments follow a federal class-action lawsuit
filed by former Miami Dolphins head coach Brian Flores, who accused
the league, along with three NFL franchises, of racial
discrimination. Flores and other critics of the NFL are calling
into question the effectiveness of the Rooney Rule, which was
adopted in 2003 and has mandated teams conduct at least one
head-coaching interview with a minority candidate.
Only one of 28 head coaches employed in the NFL is Black, with four
teams officially without a head coach, in a league where roughly
70% of the players are Black. That lone coach is the Steelers' Mike
Tomlin, who won the Super Bowl in 2009.
There are two other non-Black minority coaches -- one of Puerto
Rican and Mexican descent and one of Lebanese descent.
NFL Commissioner Roger Goodell admitted this month that the league
has fallen short by "a long shot" in ensuring head coaching
opportunities for Black and minority candidates and vowed to see if
policies need to change.
"I don't think you take anything off the table until you have
people look at that, help us independently say, 'Is there something
flawed with our process?'" he said of the league's embattled
interview process.
"And if there is, what can we do to resolve that and fix that?" he
added.
Biden told NBC that the NFL "should be held to a reasonable
standard" given its broad influence.
The President's comments echo his message from an interview that
aired during halftime of the Super Bowl last year when he said,
"There's innumerous incredibly qualified African American coaches
out there"
"I don't know how many, when I picked a Black woman to be vice
president, I don't know how many hundreds of thousands of little
girls just said, 'I can do that.' . . . It matters, it matters,"
the President told Westwood One at the time. "And I don't
understand why they cannot find, because they exist, so many
African American coaches that are qualified, that should be in the
pros in my view." [GN]
NATIONAL FOOTBALL: Flores to Amend Class Action Over Racism
-----------------------------------------------------------
Matt Hladik, writing for The Spun, reports that former Dolphins
head coach Brian Flores will reportedly amend his lawsuit against
the NFL to include a claim against the Houston Texans.
According to Pro Football Talk's Mike Florio, Flores will be adding
a retaliation claim against the Texans in his ongoing lawsuit,
which was filed on February 1. The class action suit alleges racist
hiring practices in the NFL.
Flores was reportedly a finalist for the Texans job, along with
Josh McCown. At the last minute, Houston defensive coordinator
Lovie Smith was revealed to be a candidate, and was eventually
hired to be the franchise's new head coach.
Shortly after news of Smith's hiring broke, Flores' lawyers Doug
Wigdor and John Elefterakis released a statement claiming it was
"obvious" that the Texans only passed on hiring Flores because he
is suing the league.
"Mr. Flores is happy to hear that the Texans have hired a Black
head coach, Lovie Smith, as Mr. Flores' goal in bringing his case
is to provide real opportunities for Black and minority candidates
to be considered for coaching and executive positions within the
NFL," the statement said. "However, we would be remiss not to
mention that Mr. Flores was one of three finalists for the Texans'
head coach position and, after a great interview and mutual
interest, it is obvious that the only reason Mr. Flores was not
selected was his decision to stand up against racial inequality
across the NFL."
In his original lawsuit, Flores cited the New York Giants and
Denver Broncos for allegedly holding "sham" interviews for him in
order to comply with the league's Rooney Rule. He also accused
Dolphins owner Stephen Ross of offering him money to lose games
during the 2019 season.
Flores was let go by the Dolphins in January after three seasons as
head coach. He went 24-25 with Miami, including a 19-14 mark in his
2020 and 2021. [GN]
NESTLE HEALTHCARE: Weekes Files ADA Suit in S.D. New York
---------------------------------------------------------
A class action lawsuit has been filed against Nestle Healthcare
Nutrition, Inc. The case is styled as Robert Weekes, individually,
and on behalf of all others similarly situated v. Nestle Healthcare
Nutrition, Inc., Case No. 1:22-cv-01336 (S.D.N.Y., Feb. 16, 2022).
The lawsuit is brought over alleged violation of the Americans with
Disabilities Act.
Nestle HealthCare Nutrition, Inc. -- https://www.nestle.com/ --
provides nutritional solutions for people with specific dietary
needs related to illnesses, diseases, and, age.[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
NEW YORK, NY: Mayor Issues Emergency Executive Order 35
-------------------------------------------------------
Eric Adams, New York City Mayor, on Feb. 13 issued Emergency
Executive Order 35.
WHEREAS, on September 2, 2021, the federal monitor in the Nunez
use-of-force class action stated steps must be taken immediately to
address the conditions in the New York City jails; and
WHEREAS, excessive staff absenteeism among correction officers and
supervising officers has contributed to a rise in unrest and
disorder, and creates a serious risk to the necessary maintenance
and delivery of sanitary conditions; access to basic services
including showers, meals, visitation, religious services,
commissary, and recreation; and prompt processing at intake; and
WHEREAS, the Department of Correction's (DOC's) staffing shortages
are affecting health operations, including the availability of
escorts to bring patients to the clinic and of DOC personnel to
staff the clinics; and
WHEREAS, this Order is given to address the effects of excessive
staff absenteeism and in order to address the conditions at DOC
facilities; and
WHEREAS, the state of emergency existing within DOC facilities,
first declared in Emergency Executive Order No. 241, issued on
September 15, 2021, and extended most recently by Emergency
Executive Order No. 23, issued on January 29, 2022, remains in
effect;
NOW, THEREFORE, pursuant to the powers vested in me by the laws of
the State of New York and the City of New York, including but not
limited to the New York Executive Law, the New York City Charter
and the Administrative Code of the City of New York, and the common
law authority to protect the public in the event of an emergency:
Section 1. I hereby direct that section 1 of Emergency Executive
Order No. 31, dated February 8, 2022, is extended for five (5)
days.
Sec. 2. This Emergency Executive Order shall take effect
immediately and shall remain in effect for five (5) days unless it
is terminated or modified at an earlier date. [GN]
NMCI MEDICAL: Kulik Suit Seeks Conditional Class Certification
--------------------------------------------------------------
In the class action lawsuit captioned as BARBARA KULIK, JAMES
ESKRIDGE, and MARY DUNNING GAROFALO individually and on behalf of
all others similarly situated, v. NMCI MEDICAL CLINIC, INC ., a
corporation, Case No. 5:21-cv-03495-BLF (N.D. Cal.), the Plaintiffs
ask the Court to enter an order conditionally certifying a
collective and notice, pursuant to 29 U.S.C. section 7 216(b).
The Plaintiffs allege that NMCI Medical, for a period of time
within the applicable statute of limitations, misclassified its
hourly employees as exempt from the overtime protections of the
Fair Labor Standards Act (FLSA).
Additionally, the Plaintiffs allege that the same hourly employees
were forced to perform, and did regularly perform throughout their
employment, off-the-clock work.
The Plaintiffs are former hourly employees of Defendant during the
relevant time. The Defendant employed Plaintiff Kulik as an hourly
nurse practitioner. Similarly, Defendant employed Plaintiffs
Eskridge and Garofalo as hourly nurse practitioners.
The Defendant holds itself out to the public as a multidisciplinary
center with providing care for patients throughout Northern
California.
A copy of the Plaintiffs' motion dated Feb. 10, 2021 is available
from PacerMonitor.com at https://bit.ly/3LDFilF at no extra
charge.[CC]
The Plaintiffs are represented by:
Trenton R. Kashima, Esq.
Jason J. Thompson, Esq.
SOMMERS SCHWARTZ, PC
402 West Broadway, Suite 1760
San Diego, CA 92101
Telephone: (619) 762-2125
Facsimile: (619) 762-2127
E-mail: tkashima@sommerspc.com
jtohompson@sommerspc.com
NORFOLK SOUTHERN: Various Antitrust Cases Consolidated in DC
------------------------------------------------------------
Norfolk Southern Corporation 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 in
2007, various antitrust class actions filed against the company and
other Class I railroads in various Federal district courts
regarding fuel surcharges were consolidated in the District of
Columbia by the Judicial Panel on Multidistrict Litigation. In
2012, the court certified the case as a class action.
The defendant railroads appealed this certification, and the Court
of Appeals for the District of Columbia vacated the District
Court's decision and remanded the case for further consideration.
On October 10, 2017, the District Court denied class certification.
The decision was upheld by the Court of Appeals on August 16, 2019.
Since that decision, various individual cases have been filed in
multiple jurisdictions and also consolidated in the District of
Columbia.
Norfolk Southern Corporation is a transportation company based in
Georgia.
NORTEK SECURITY: Landy Files TCPA Suit in S.D. New York
-------------------------------------------------------
A class action lawsuit has been filed against Nortek Security &
Control, LLC. The case is styled as Brennan Landy, individually and
on behalf of all others similarly situated v. Nortek Security &
Control, LLC, Case No. 3:22-cv-00210-BEN-JLB (S.D.N.Y., Feb. 16,
2022).
The lawsuit is brought over alleged violation of the Telephone
Consumer Protection Act for Restrictions of Use of Telephone
Equipment.
Nortek Control -- https://www.nortekcontrol.com/ -- is a global
leader and solutions provider in the security, control, access,
power/AV, health + wellness, and AI/analytics markets.[BN]
The Plaintiff is represented by:
Rory Pendergast, Esq.
THE PENDERGAST LAW FIRM, PC
3019 Polk Avenue
San Diego, CA 92104
Phone: (619) 344-8699
Fax: (619) 344-8701
Email: Rory@rorylaw.com
NORTHSTAR LOCATION: Sao Files TCPA Suit in M.D. North Carolina
--------------------------------------------------------------
A class action lawsuit has been filed against Northstar Location
Services, LLC. The case is styled as Mary Sao, on behalf of herself
and others similarly situated v. Northstar Location Services, LLC,
Case No. 1:22-cv-01336 (M.D.N.C., Feb. 16, 2022).
The lawsuit is brought over alleged violation of the Telephone
Consumer Protection Act for Restrictions of Use of Telephone
Equipment.
The Northstar Companies -- https://www.gotonls.com/ -- provides a
full-service receivables debt collection solution.[BN]
The Plaintiff is represented by:
Wesley S. White, Esq.
LAW OFFICES OF WESLEY S. WHITE
2300 E. 7th St. Suite 101
Charlotte, NC 28204
Phone: (980) 272-7169
Email: wes@weswhitelaw.com
OTIS WORLD CORP: Faces Labor Complaint in Geraud Action
-------------------------------------------------------
Otis World Corporation 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 putative class
action lawsuit was filed against the company seeking to recover
monetary damages, as well as related declaratory and equitable
relief.
On August 12, 2020, a putative class action lawsuit, (Geraud Darnis
et al. v. Raytheon Technologies Corporation et al.), was filed in
the United States District Court for the District of Connecticut
against Otis, Raytheon Technologies Corporation (RTX), Carrier,
each of their directors, and various incentive and deferred
compensation plans.
On September 13, 2021, plaintiffs filed an amended complaint
against the three company defendants only. The named plaintiffs are
former employees of UTC and its current and former subsidiaries,
including Otis and Carrier. They seek to recover monetary damages,
as well as related declaratory and equitable relief, based on
claimed decreases in the value of long-term incentive awards and
deferred compensation under nonqualified deferred compensation
plans allegedly caused by the formula used to calculate the
adjustments to such awards and deferred compensation from RTX,
Carrier, and Otis following the spin-offs of Carrier and Otis and
the subsequent combination of UTC and Raytheon Company.
Otis World Corporation is an elevator and escalator manufacturing,
installation and service company based in Connecticut.
OUTDOOR GEAR EXCHANGE: Weekes Files ADA Suit in S.D. New York
-------------------------------------------------------------
A class action lawsuit has been filed against The Outdoor Gear
Exchange, Inc. The case is styled as Robert Weekes, individually,
and on behalf of all others similarly situated v. The Outdoor Gear
Exchange, Inc., Case No. 1:22-cv-01283 (S.D.N.Y., Feb. 15, 2022).
The lawsuit is brought over alleged violation of the Americans with
Disabilities Act.
The Outdoor Gear Exchange, Inc. -- https://www.gearx.com/ --
operates as an outdoor sports store.[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
PEOPLECONNECT INC: Camacho Files Suit in S.D. California
--------------------------------------------------------
A class action lawsuit has been filed against PeopleConnect, Inc.
The case is styled as Jose Medina Camacho, Rhonda Cotta, on behalf
of themselves and all others similarly situated v. PeopleConnect,
Inc., a Delaware corporation; Intelius LLC, a Delaware limited
liability company; The Control Group Media Company, LLC; Case No.
3:22-cv-00209-BAS-JLB (S.D. Cal., Feb. 15, 2022).
The nature of suit is stated as Other Personal Property.
Peopleconnect, Inc. -- https://peopleconnect.us/ -- provides online
social network services. The Company offers basic people search,
list management, criminal records, employee screening, human
resources background checks, and identity theft protection
services.[BN]
The Plaintiffs are represented by:
Lawrence Timothy Fisher, Esq.
BURSOR & FISHER, P.A.
1990 North California Blvd., Suite 940
Walnut Creek, CA 94596
Phone: (925) 300-4455
Fax: (925) 407-2700
Email: ltfisher@bursor.com
PERDUE FOODS: Paguada Files ADA Suit in S.D. New York
-----------------------------------------------------
A class action lawsuit has been filed against Perdue Foods LLC. The
case is styled as Josue Paguada, on behalf of himself and all
others similarly situated v. Perdue Foods LLC, Case No.
1:22-cv-01293 (S.D.N.Y., Feb. 15, 2022).
The lawsuit is brought over alleged violation of the Americans with
Disabilities Act.
Perdue Farms -- https://www.perdue.com/ -- is the parent company of
Perdue Foods and Perdue AgriBusiness, based in Salisbury, Maryland.
Perdue Foods is a major chicken, turkey, and pork processing
company in the United States.[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
PHH MORTGAGE: S.D. Florida Narrows Claims in Salter Class Suit
--------------------------------------------------------------
In the case, WILLIAM SALTER, et al., Plaintiffs v. PHH MORTGAGE
CORP., Defendant, Case No. 21-62318-CIV-ALTONAGA/Strauss (S.D.
Fla.), Judge Cecilia M. Altonaga of the U.S. District Court for the
Southern District of Florida granted in part and denied in part the
Defendant's Motion to Dismiss.
I. Background
The case is a putative class action brought against the Defendant,
a non-bank residential mortgage servicer. The Plaintiffs own homes
in Florida that are subject to identical Mortgages serviced by the
Defendant. The Mortgages contain "Notice of Grievance" provisions
requiring the Plaintiffs to provide notice of a grievance and an
opportunity to cure the grievance before filing suit.
The Defendant services home loans according to uniform practices,
including the issuance of uniform Payoff Statements that inform
consumers about how much they owe the Defendant. These Payoff
Statements include three allegedly improper fees: (1) a "Bank Wire
Fee"; (2) a "Recording Fee"; and (3) a "Recoverable Balance."
The Plaintiffs seek damages and injunctive relief to redress the
Defendant's allegedly unfair and deceptive practices. They assert
four claims: violation of the Fair Debt Collection Practices Act
("FDCPA"), 15 U.S.C. Section 1692e (Count I); violation of the
FDCPA, 15 U.S.C. Section 1692f (Count II); violation of Florida's
Deceptive and Unfair Trade Practices Act ("FDUTPA"), Fla. Stat.
Sections 501.201 et seq. (Count III); and violation of the Florida
Consumer Collection Practices Act ("FCCPA"), Fla. Stat. Section
559.72(9) (Count IV).
The Defendant seeks dismissal of the Complaint for failure to state
claims for relief on Dec. 22, 2021.
II. Discussion
The Defendant moves for dismissal on four grounds: (1) the
Plaintiffs failed to comply with the mandatory notice-and-cure
provision contained in the Mortgages; (2) Florida's litigation
privilege bars Joseph's claims; (3) the fees were not deceptive or
unfair; and (4) Plaintiffs' FDUTPA claims fail because Defendant's
servicing activities do not constitute trade or commerce.
After examining the first two grounds in turn, Judge Altonaga
analyzes the third and fourth grounds together.
1. The Notice of Grievance provision.
The Defendant maintains the Court should dismiss the Complaint in
its entirety because the Plaintiffs allege no facts showing
compliance with the condition precedent contained in the Notice of
Grievance. The Plaintiffs insist the provision cannot apply to
their claims because "there are no allegations that the contract
has been breached."
While the Plaintiffs are wrong -- they do plead the Mortgages have
been breached -- Judge Altonaga cannot dismiss the Complaint under
Rule 12(b)(6) because of an ostensible failure to meet a condition
precedent. She examines the terms of the Mortgages and whether the
claims made are subject to the Notice of Grievance provisions.
A. Bank Wire Fee
The Plaintiffs allege that when consumers make mortgage payments by
wire transfer, the Defendant "charges an additional $25 to the
borrower, to receive the wire, which is a fee that is not
authorized by the mortgage agreement." They also allege that the
Defendant is fully aware and has actual knowledge that the standard
mortgage loan agreements it services do not authorize the charging
of the 'Bank Wire Fee.'
Elsewhere in the Complaint, the Plaintiffs cite Paragraph 14 of the
Mortgages, which states: "The absence of express authority in this
Mortgage to charge a specific fee to Borrower will not be construed
as a prohibition on the charging of such fee. Lender may not charge
fees that are expressly prohibited by this Mortgage or by
Applicable Law." The Plaintiffs claim that Paragraph 14 "prohibits
the Defendant from charging estimated fees, unauthorized fees, or
excessive fees." Thus, the Plaintiffs' claims arising from the
allegedly unauthorized Bank Wire Fee "clearly relate to the
Mortgages" and are subject to the Notice of Grievance provision.
B. Recording Fee
The Plaintiffs assert the release-of-mortgage document Defendant
prepares and records once a consumer has fully paid off a mortgage
is a uniform one-page document, but the Defendant charges consumers
for the cost of a two-page document. They claim that the Defendant
"deceptively retains $8.50 to $9.50 of the Recording Fee for itself
as profit instead of passing on the entire amount to the
third-party county recorders." They further allege that the
Defendant "is fully aware and has actual knowledge that the
standard mortgage loan agreements it services do not authorize the
charging of excessive fees for services that were not performed
such as the 'Recording Fee.'"
Given this allegation, Judge Altonaga finds that the Plaintiffs'
claims related to the Recording Fee clearly suffer from the same
problem as the Bank Wire Fee because the imposition of unauthorized
fees is prohibited by Paragraph 14 of the Mortgages. There is no
doubt that the Notice of Grievance provision applies to the
Plaintiffs' claims related to the Recording Fee.
C. Recoverable Balance
The Plaintiffs allege that the Defendant's uniform Payoff Statement
"contains a line item of charges which are completely vague and
identified only as 'Recoverable Balance.'" The Plaintiffs assert
that the Defendant "is fully aware and has actual knowledge that
the standard mortgage loan agreements it services do not authorize
the charging of fees which are estimates or not actually incurred
such as those contained in the 'Recoverable Balance.'"
Again, Judge Altonaga holds that the Plaintiffs' claims are subject
to the Notice of Grievance provision because they relate to
Defendant's duties owed under Paragraph 14 of the Mortgages.
Leaving no room for doubt, the Plaintiffs explicitly allege the
charging of the non-itemized Recoverable Balance breaches several
Mortgage provisions. Nonetheless, dismissal based on the Notice of
Grievance provision is not warranted.
2. The litigation privilege.
Although Salter and Joseph's individual allegations are essentially
identical, the Defendant argues only that Joseph's claims are
barred by Florida's litigation privilege. To prove this, it
requests the Court takes judicial notice of a docket in a
state-court foreclosure action pending between Joseph and her
lender. It insists all of Joseph's claims must be dismissed because
it sent the Payoff Statement to her during the state foreclosure
proceedings.
But merely establishing there were pending foreclosure proceedings
when the Payoff Statement was sent does not conclusively establish
the litigation privilege applies. The litigation immunity privilege
is an affirmative defense. Nothing in the Complaint discusses
Joseph's pending foreclosure proceedings, let alone connects the
Payoff Statement to it.
3. The statutory frameworks.
The Defendant argues the case should be dismissed because the
Plaintiffs fail to state claims under the FDCPA, the FCCPA, and the
FDUTPA.
A. Recording Fee
The Defendant contends the Recording Fee is authorized and not
excessive because the Mortgages allow it to charge the Plaintiffs
for any recordation costs so long as "the fee is paid to a third
party for services rendered." But the Plaintiffs are claiming the
Defendant charges in excess of any third-party services rendered
and keeps a portion "for itself as profit instead of passing on the
entire amount to the third-party county recorders."
Taking the Plaintiffs' allegation as true, Judge Altonaga holds
that such a practice would be a deceptive representation of the
amount of a debt, in violation of 15 U.S.C. section 1692e; an
unfair or unconscionable means of attempting to collect a debt, in
violation of 15 U.S.C. section 1692f; and the assertion of a legal
right Defendant knows is not legitimate, in violation of section
559.72(9), Florida Statutes. The Plaintiffs' FDCPA claims survive
because the least sophisticated consumer would likely not know that
the most the Recording Fee would actually cost is $10. And their
FCCPA claims are sound because Defendant is asserting a legal right
to receive payment it knows is in excess of what it will actually
pass through to the county recording office. Further, because the
Plaintiffs successfully plead violations of the FDCPA and FCCPA,
their FDUTPA claim survives as well. In short, each of the
Plaintiffs' claims related to the allegedly excessive Recording Fee
survive.
B. Bank Wire Fee
The Defendant maintains there is nothing deceptive or unfair about
the $25 fee it charges for using its bank-wire service.
Judge Altonaga agrees. She holds that the Plaintiffs' claims
related to the optional Bank Wire Fee are dismissed. She says, the
Plaintiffs' claim that "a reasonable consumer or least
sophisticated consumer would find" the bank-wire transfer not
optional is wholly unsupported. The Payoff Statement even explains
how to submit payment using the other options on the same page
where it says bank-wire transfers are preferred. There also is no
indication that the Defendant is asserting a nonexistent legal
right in violation of the FCCPA. Finally, because there are no
predicate statutory violations, and because there is nothing unfair
or deceptive about the optional Bank Wire Fee, the Plaintiffs'
FDUTPA claim fails.
C. Recoverable Balance
According to the Plaintiffs, "the non-itemized amorphous charge of
'Recoverable Balance' is misleading as it does not give consumers
the ability to knowledgably assess the validity of the claimed
debt." They further allege the Defendant was fully aware and had
actual knowledge that the charging of the Recoverable Balance was
in direct breach of three provisions of the Mortgages.
Based on these assertions and a review of the Payoff Statements,
Judge Altonaga holds that the Plaintiffs have plausibly alleged
FDCPA and FCCPA claims arising from the Recoverable Balance. More
importantly, she simply cannot determine whether any unauthorized
or excessive fees were in fact included in the Recoverable Balance.
If they were -- as alleged -- then the Defendant likely would have
had actual knowledge that the debts were illegitimate.
Consequently, the Plaintiffs' FCCPA claims move forward as well.
To recap, Judge Altonaga concludes that each of the Plaintiffs'
FDCPA and FCCPA claims arising from the non-itemized Recoverable
Balance survive.
III. Conclusion
For the foregoing reasons, Judge Altonaga granted in part and
denied in part the Defendant's Motion to Dismiss. The Plaintiffs'
claims related to the Bank Wire Fee are dismissed.
A full-text copy of the Court's Feb. 9, 2022 Order is available at
https://tinyurl.com/2p9bv559 from Leagle.com.
PHILLIPS ENTERTAINMENT: Weekes Files ADA Suit in S.D. New York
--------------------------------------------------------------
A class action lawsuit has been filed against Phillips
Entertainment LLC. The case is styled as Robert Weekes,
individually, and on behalf of all others similarly situated v.
Phillips Entertainment LLC, Case No. 1:22-cv-01279 (S.D.N.Y., Feb.
15, 2022).
The lawsuit is brought over alleged violation of the Americans with
Disabilities Act.
The Phillips family has deep roots in Texas Tourism dating back to
1964 with Gene Phillips and Aquarena Springs in San Marcos,
Texas.[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
PORTFOLIO RECOVERY: Miller FDCPA Suit Removed to D. New Jersey
--------------------------------------------------------------
The case captioned as Latonya Miller, Randa A. Husain, on behalf of
themselves and those similarly situated v. Portfolio Recovery
Associates, LLC, John Does 1 to 10, Case No. ESX-L-009897-21 was
removed from the Essex County Superior Court, to the U.S. District
Court for District of New Jersey on Feb. 4, 2022.
The District Court Clerk assigned Case No. 2:22-cv-00586-ES-ESK to
the proceeding.
The lawsuit is brought over alleged violation of the Fair Debt
Collection Practices Act.
Portfolio Recovery Associates LLC --
https://www.portfoliorecovery.com/ -- a subsidiary of PRA Group,
Inc., specializes in working with people in debt repayment.[BN]
The Plaintiffs are represented by:
Yongmoon Kim, Esq.
KIM LAW FIRM, LLC
411 Hackensack Ave Ste 701
Hackensack, NJ 07601
Phone: (201) 273-7117
Fax: (201) 273-7117
Email: ykim@kimlf.com
The Defendants are represented by:
Philip Andrew Goldstein, Esq.
MCGUIRE WOODS LLP
1251 Avenue of the Americas, 20th Floor
New York, NY 10020
Phone: (212) 548-2167
Email: pagoldstein@mcguirewoods.com
PROBUILD COMPANY: Gonzalez FCRA Suit Removed to C.D. California
---------------------------------------------------------------
The case styled JAIME GONZALEZ, individually and on behalf of all
others similarly situated v. PROBUILD COMPANY LLC, doing business
as DIXIELINE LUMBER & HOME CENTERS; BUILDERS FIRSTSOURCE, INC.; and
DOES 1-50, inclusive, Case No. CV-RI-2105278, was removed from the
Superior Court of the State of California, County of Riverside, to
the U.S. District Court for the Central District of California on
February 17, 2022.
The Clerk of Court for the Central District of California assigned
Case No. 5:22-cv-00315-CJC-SHK to the proceeding.
The case arises from the Defendants' alleged violations of the Fair
Credit Reporting Act, the Investigative Consumer Reporting Agencies
Act, the California Consumer Credit Reporting Agencies Act, and the
California's Unfair Competition Law including failure to make
proper disclosures, failure to obtain proper authorization, failure
to pay minimum wages, failure to pay overtime owed, failure to
provide lawful meal periods, failure to authorize and permit rest
periods, failure to timely pay wages during employment, failure to
timely pay wages owed upon separation, knowing and intentional
failure to comply with itemized wage statement provisions, and
unfair competition.
ProBuild Company LLC, doing business as Dixieline Lumber & Home
Centers, is a supplier of lumber and building materials,
headquartered in Denver, Colorado.
Builders FirstSource, Inc. is a manufacturer and supplier of
building materials, headquartered in Dallas, Texas. [BN]
The Defendants are represented by:
Matthew B. Golper, Esq.
Daniel J. Corbett, Esq.
BALLARD ROSENBERG GOLPER & SAVITT, LLP
15760 Ventura Boulevard, Eighteenth Floor
Encino, CA 91436
Telephone: (818) 508-3700
Facsimile: (818) 506-4827
E-mail: mgolper@brgslaw.com
dcorbett@brgslaw.com
PROFESSIONAL BUSINESS: Judge Recommends Dismissal of Class Action
-----------------------------------------------------------------
Kathryn Cahoy, Esq., and Tomoaki Takaki, Esq., of Covington &
Burling, in an article for Mondaq, report that a magistrate judge
in the Western District of New York recently recommended dismissing
the putative class action Tassmer et al v. Professional Business
Systems, concluding that any risk of identity theft or other injury
was too "speculative" to show standing. The recommendation is in
line with numerous other federal circuit and district courts
similarly requiring plaintiffs in data breach cases to show
concrete harm, not merely a risk of future harm. This
recommendation, if adopted, will be another helpful precedent for
companies facing class action lawsuits as a result of a data breach
or cyber hack.
In December 2020, hackers accessed data held by Professional
Business Systems (doing business as Practicefirst Medical
Management Solutions and PBS Medcode Corporation), stealing
information on approximately 1.2 million patients of medical
providers who used Practicefirst's medical management services. The
stolen data reportedly included sensitive personal information,
such as Social Security numbers, bank account and credit/debit card
information, and medical diagnoses. Practicefirst was then
subjected to a ransomware attack, where computer system access was
blocked until a fee to restore access was paid.
The four plaintiffs brought a putative class action after being
notified of the data breach in June and July 2021. They alleged
injuries relating to diminution of value of their personal
information, violation of privacy, and imminent injury from the
increased risk of identity theft and fraud. They also alleged they
had spent time and resources ensuring the security of their
accounts.
Magistrate Judge Michael Roemer concluded the plaintiffs lacked
Article III standing to sue because they had not alleged any actual
or imminent threat of future harm and a separate concrete harm. The
judge first noted that several cases, including the U.S. Supreme
Court's June 2021 decision in TransUnion LLC v. Ramirez, made clear
that a plaintiff alleging a risk of future harm must also allege "a
separate, concrete harm that was caused by exposure to the imminent
risk and is proportional to the actual likelihood of the future
harm occurring."
The judge then analyzed plaintiffs' claims under the Second
Circuit's three-factor test for standing in data breach cases from
McMorris v. Carlos Lopez and Associates, LLC. The judge concluded
that the primary purpose for the hack was not to steal data;
rather, it was a "garden-variety ransomware attack." Thus,
plaintiffs had not alleged a targeted attempt or clear intent to
use the data for identity theft or fraud. Further, none of the
plaintiffs had yet experienced any fraud or identity theft. The
sensitive nature of the stolen information did not "by itself"
demonstrate a "substantial risk of future identity theft" or fraud.
Because there was no such substantial risk, plaintiffs' time and
resources taken to protect their accounts was manufactured in
anticipation of non-imminent harm. The judge also decided that
plaintiffs lacked standing based on any diminution in value of
their data, since they never specified how the information was
devalued or that they sold their data for a decreased price.
Finally, the judge rejected any theory of standing based on a
common-law tort of violation of privacy rights. [GN]
RAGAN & RAGAN: Lloyd Files FDCPA Suit in N.D. Georgia
-----------------------------------------------------
A class action lawsuit has been filed against Ragan & Ragan, P.C.,
et al. The case is styled as Cynthia Lloyd, individually and on
behalf of all others similarly situated v. Ragan & Ragan, P.C.,
Second Round Sub, LLC, Case No. 1:22-cv-00656-LMM-CMS (N.D. Ga.,
Feb. 16, 2022).
The lawsuit is brought over alleged violation of the Fair Debt
Collection Practices Act.
The Ragan & Ragan, PC -- https://raganlaw.com/ -- law firm
represents commercial, retail and medical creditors.[BN]
The Plaintiff is represented by:
Misty Oaks Paxton, Esq.
THE OAKS FIRM
3895 Brookgreen Pt.
Decatur, GA 30034
Phone: (404) 500-7861
Email: attyoaks@yahoo.com
REMRISE INC: Scheduling Order Entered in Tavarez Class Suit
-----------------------------------------------------------
In the class action lawsuit captioned VICTORIANO TAVAREZ,
Individually, and On Behalf of All Others Similarly Situated v.
REMRISE, INC., Case No. Case 1:21-cv-09941-JPO (S.D.N.Y.), the Hon.
Judge Paul Oetken entered a civil case management plan and
scheduling order as follows:
-- All fact discovery shall be completed June 10, 2022
no later than:
-- All expert discovery, including expert July 25, 2022
depositions, shall be completed no
later than:
-- Plaintiff's expert disclosures June 10, 2022
pursuant to Fed. R. Civ. P. 26(a)(2)
shall be made on or before:
-- The Defendant’s expert disclosures June 24, 2022
pursuant to Fed. R. Civ. P. 26(a)(2)
shall be made on or before:
-- The parties shall be ready for Sept. 8, 2022
trial on:
Remrise is a health, wellness, and fitness company that specializes
in manufacturing plant-powered sleep formulas and tools.
A copy of the Court's order dated Feb. 10, 2021 is available from
PacerMonitor.com at https://bit.ly/3gQF5gG at no extra charge.[CC]
The Plaintiff is represented by:
William 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
E-mail: william.downes@gmail.com.
The Defendant is represented by:
Stephen James Barrett, Esq.
Jura Christine Zibas, Esq.
WILSON ELSER
New York, NY
Telephone: (212) 915-5479
Facsimile: (212) 490-3038
E-mail: stephen.barrett@wilsonelser.com
jura.zibas@wilsonelser.com
RESURGENT CAPITAL: Bid for More Time to Complete Discovery OK'd
---------------------------------------------------------------
In the class action lawsuit captioned as Fonteboa v. Resurgent
Capital Services L.P., et al., Case No. 1:21-cv-02293 (E.D.N.Y.),
the Hon. Judge Taryn A. Merkl entered an order on motion for
extension of time to complete discovery.
-- The deadline for the initiation April 30, 2022
of Rule 23 Class certification
motion practice is:
-- The parties are directed to file May 28, 2022
a proposed joint proposed pre-trial
order by:
The suit alleges violation of the Fair Debt Collection Practices
Act.
Resurgent Capital provides financial services. The Company manages
debt portfolios for credit grantors and debt buyers.[CC]
RETAILERX INC: Weekes Files ADA Suit in S.D. New York
-----------------------------------------------------
A class action lawsuit has been filed against Retailerx, Inc. The
case is styled as Robert Weekes, individually, and on behalf of all
others similarly situated v. Retailerx, Inc., Case No.
1:22-cv-01285 (S.D.N.Y., Feb. 15, 2022).
The lawsuit is brought over alleged violation of the Americans with
Disabilities Act.
RetailerX, Inc. is incorporated in the state of Delaware.[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
REWIND COMPANY: Fischler Files ADA Suit in E.D. New York
--------------------------------------------------------
A class action lawsuit has been filed against The Rewind Company.
The case is styled as Brian Fischler, individually and on behalf of
all other persons similarly situated v. The Rewind Company doing
business as: Rewind, Case No. 1:22-cv-00842 (E.D.N.Y., Feb. 15,
2022).
The lawsuit is brought over alleged violation of the Americans with
Disabilities Act.
Rewind -- https://rewind.com/ -- builds apps that protect critical
SaaS and cloud data.[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
RITE AID: Lemus Files Suit in C.D. California
---------------------------------------------
A class action lawsuit has been filed against Rite Aid Corporation.
The case is styled as Christian Lemus, individually and on behalf
of all others similarly situated v. Rite Aid Corporation, Case No.
8:22-cv-00253 (C.D. Cal., Feb. 16, 2022).
The nature of suit is stated as Contract Product Liability.
Rite Aid Corporation -- http://www.riteaid.com/-- is an American
drugstore chain based in Camp Hill, Pennsylvania.[BN]
The Plaintiff is represented by:
Jonas Jacobson, Esq.
DOVEL AND LUNER LLP
201 Santa Monica Boulevard Suite 600
Santa Monica, CA 90401
Phone: (310) 656-7066
Fax: (310) 656-7069
Email: jonas@dovel.com
ROBBINS PROPERTY: Perez Suit Removed to S.D. Florida
----------------------------------------------------
The case captioned as Manuel Perez, individually and on behalfof
all others similarly situated v. Robbins Property Associates LLC,
Case No. 22-001844-CA-01 was removed from the 11th Judicial Circuit
Court, to the U.S. District Court for Southern District of Florida
on Feb. 15, 2022.
The District Court Clerk assigned Case No. 1:22-cv-20467-KMW to the
proceeding.
The nature of suit is stated as Insurance.
Robbins Property Associates (RPA) --
https://www.robbinspropertyllc.com/ -- is a private real estate
company.[BN]
The Plaintiff is represented by:
Andrew John Shamis, Esq.
Garrett O. Berg, Esq.
SHAMIS & GENTILE P.A.
14 N.E. 1st Ave., Ste. 1205
Miami, FL 33132
Phone: (305) 479-2299
Fax: (786) 623-0915
Email: ashamis@sflinjuryattorneys.com
gberg@shamisgentile.com
- and -
Scott Adam Edelsberg, Esq.
EDELSBERG LAW PA
20900 NE 30th Ave., 417
Aventura, FL 33180
Phone: (305) 975-3320
Email: scott@edelsberglaw.com
The Defendant is represented by:
Alan Gary Kipnis, Esq.
GOVERNMENT LAW GROUP, PLLC
200 S. Andrews Avenue, Suite 601
Fort Lauderdale, FL 33301
Phone: (954) 909-0592
Fax: (954) 909-0599
Email: akipnis@govlawgroup.com
- and -
Payton William Henry Poliakoff, Esq.
COLE, SCOTT AND KISSANE P.A.
222 Lakeview Avenue, Suite 120
West Palm Beach, FL 33401
Phone: (561) 681-5540
Fax: (561) 683-8977
SEA MAR COMMUNITY HEALTH: Barnes Suit Removed to W.D. Washington
----------------------------------------------------------------
The case captioned as Maria Barnes, Derek Gannon, individually and
on behalf of all others similarly situated v. Sea Mar Community
Health Centers, Case No. 21-00002-1506399 SEA was removed from the
King County Superior Court, to the U.S. District Court for Western
District of Washington on Feb. 16, 2022.
The District Court Clerk assigned Case No. 2:22-cv-00181 to the
proceeding.
The nature of suit is stated as Other P.I.
Sea Mar Community Health Centers -- https://www.seamar.org/ -- is a
community-based organization dedicated to underserved communities &
quality, integrated care.[BN]
The Plaintiffs are represented by:
Alexander F Strong, Esq.
BENDICH STOBAUGH & STRONG
126 NW Canal Street, Ste. 100
Seattle, WA 98107
Phone: (206) 622-3536
Email: astrong@bs-s.com
The Defendant is represented by:
Aryn Seiler, Esq.
Randy J. Aliment, Esq.
Kathleen A. Nelson, Esq.
LEWIS BRISBOIS BISGAARD & SMITH LLP (SEATTLE)
1111 THIRD AVE STE 2700
SEATTLE, WA 98101
Phone: (206) 876-2953
Fax: (206) 436-2030
Email: aryn.seiler@lewisbrisbois.com
randy.aliment@lewisbrisbois.com
kathleen.nelson@lewisbrisbois.com
SEA MAR COMMUNITY HEALTH: Hall Suit Removed to W.D. Washington
--------------------------------------------------------------
The case captioned as Alan Hall, individually and on behalf of all
others similarly situated v. Sea Mar Community Health Centers, Case
No. 21-00002-15130-9 SEA was removed from the King County Superior
Court, to the U.S. District Court for Western District of
Washington on Feb. 16, 2022.
The District Court Clerk assigned Case No. 2:22-cv-00184 to the
proceeding.
The nature of suit is stated as Other P.I.
Sea Mar Community Health Centers -- https://www.seamar.org/ -- is a
community-based organization dedicated to underserved communities &
quality, integrated care.[BN]
The Plaintiff is represented by:
Michael C. Subit, Esq.
FRANK FREED SUBIT & THOMAS
705 2nd Ave., Ste. 1200
Seattle, WA 98104-1729
Phone: (206) 682-6711
Fax: (206) 682-0401
Email: msubit@frankfreed.com
The Defendant is represented by:
Aryn Seiler, Esq.
Randy J. Aliment, Esq.
Kathleen A. Nelson, Esq.
LEWIS BRISBOIS BISGAARD & SMITH LLP (SEATTLE)
1111 Third Ave., Ste. 2700
Seattle, WA 98101
Phone: (206) 876-2953
Fax: (206) 436-2030
Email: aryn.seiler@lewisbrisbois.com
randy.aliment@lewisbrisbois.com
kathleen.nelson@lewisbrisbois.com
SEA MAR COMMUNITY HEALTH: Maynor Suit Removed to W.D. Washington
----------------------------------------------------------------
The case captioned as Daniel Maynor, Jr., Tracy Fox, on themselves
own behalf and on behalf of those similarly situated v. Sea Mar
Community Health Centers, Case No. 22-00002-01713-9 was removed
from the King County Superior Court, to the U.S. District Court for
Western District of Washington on Feb. 16, 2022.
The District Court Clerk assigned Case No. 2:22-cv-00187 to the
proceeding.
The nature of suit is stated as Other P.I.
Sea Mar Community Health Centers -- https://www.seamar.org/ -- is a
community-based organization dedicated to underserved communities &
quality, integrated care.[BN]
The Plaintiff is represented by:
Brian C. Gudmundson, Esq.
Jason P. Johnston, Esq.
Michael J. Laird, Esq.
Rachel Kristine Tack, Esq.
ZIMMERMAN REED LLP (MN)
1100 IDS Center
80 South 8th Street
Minneapolis, MN 55402
Phone: (612) 341-0400
Email: brian.gudmundson@zimmreed.com
jason.johnston@zimmreed.com
michael.laird@zimmreed.com
rachel.tack@zimmreed.com
- and -
Caleb L. Marker, Esq.
ZIMMERMAN REED LLP (CA)
6420 Wilshire Blvd., Ste. 1080
Los Angeles, CA 90048
Phone: (877) 500-8780
Email: caleb.marker@zimmreed.com
- and -
Christopher D. Jennings, Esq.
JOHNSON FIRM
610 President Clinton Ave., Ste. 300
Little Rock, AR 72201
Phone: (501) 372-1300
Email: chris@yourattorney.com
The Defendant is represented by:
Aryn Seiler, Esq.
Randy J. Aliment, Esq.
Kathleen A. Nelson, Esq.
LEWIS BRISBOIS BISGAARD & SMITH LLP (SEATTLE)
1111 Third Ave., Ste. 2700
Seattle, WA 98101
Phone: (206) 876-2953
Fax: (206) 436-2030
Email: aryn.seiler@lewisbrisbois.com
randy.aliment@lewisbrisbois.com
kathleen.nelson@lewisbrisbois.com
SEA MAR COMMUNITY HEALTH: Summers Suit Removed to W.D. Washington
-----------------------------------------------------------------
The case captioned as Jeffrie Alan Summers, II, on behalf of
himself and all others similarly situated v. Sea Mar Community
Health Centers, Case No. 22-00002-00773-7 was removed from the King
County Superior Court, to the U.S. District Court for Western
District of Washington on Feb. 16, 2022.
The District Court Clerk assigned Case No. 2:22-cv-00183 to the
proceeding.
The nature of suit is stated as Other P.I.
Sea Mar Community Health Centers -- https://www.seamar.org/ -- is a
community-based organization dedicated to underserved communities &
quality, integrated care.[BN]
The Plaintiffs are represented by:
John A. Yanchunis, Esq.
Ryan D. Maxey, Esq.
MORGAN & MORGAN COMPLEX LITIGATION GROUP (FL)
201 N Franklin St 7th FL
Tampa, FL 33602
Phone: (813) 223-5505
Email: jyanchunis@forthepeople.com
rmaxey@forthepeople.com
- and -
Thomas E. Loeser, Esq.
HAGENS BERMAN SOBOL SHAPIRO LLP (WA)
1301 2nd Avenue, Ste. 2000
Seattle, WA 98101
Phone: (206) 623-7292
Fax: (206) 623-0594
Email: toml@hbsslaw.com
The Defendant is represented by:
Aryn Seiler, Esq.
Randy J. Aliment, Esq.
Kathleen A. Nelson, Esq.
LEWIS BRISBOIS BISGAARD & SMITH LLP (SEATTLE)
1111 Third Ave., Ste. 2700
Seattle, WA 98101
Phone: (206) 876-2953
Fax: (206) 436-2030
Email: aryn.seiler@lewisbrisbois.com
randy.aliment@lewisbrisbois.com
kathleen.nelson@lewisbrisbois.com
SEA MAR COMMUNITY HEALTH: Waliany Suit Removed to W.D. Washington
-----------------------------------------------------------------
The case captioned as Lynette Waliany, on behalf of herself and all
others similarly situated v. Sea Mar Community Health Centers, Case
No. 21-00002-16813-9 was removed from the King County Superior
Court, to the U.S. District Court for Western District of
Washington on Feb. 16, 2022.
The District Court Clerk assigned Case No. 2:22-cv-00182 to the
proceeding.
The nature of suit is stated as Other P.I.
Sea Mar Community Health Centers -- https://www.seamar.org/ -- is a
community-based organization dedicated to underserved communities &
quality, integrated care.[BN]
The Plaintiffs are represented by:
Samuel J Strauss, Esq.
TURKE & STRAUSS LLP
613 Williamson St., Ste. 201
Madison, WI 53703
Phone: (608) 237-1775
Fax: (608) 509-4423
Email: sam@turkestrauss.com
- and -
Walter M Smith, Esq.
SMITH & DIETRICH LAW OFFICES, PLLC
3905 Martin Way East, Ste F
Olympia, WA 98506
Phone: (360) 915-6952
Email: walter@smithdietrich.com
The Defendant is represented by:
Aryn Seiler, Esq.
Randy J. Aliment, Esq.
Kathleen A. Nelson, Esq.
LEWIS BRISBOIS BISGAARD & SMITH LLP (SEATTLE)
1111 Third Ave., Ste. 2700
Seattle, WA 98101
Phone: (206) 876-2953
Fax: (206) 436-2030
Email: aryn.seiler@lewisbrisbois.com
randy.aliment@lewisbrisbois.com
kathleen.nelson@lewisbrisbois.com
SEAWORLD PARKS: Jones Labor Suit Removed to S.D. California
-----------------------------------------------------------
The case styled JANEEN JONES, MARIA GLANCY, GRACE YAMBRACH, and
KRISTY PRATHER, individually and on behalf of all others similarly
situated v. SEAWORLD PARKS & ENTERTAINMENT, INC.; SEA WORLD LLC;
and DOES 1-50, inclusive, Case No. 37-02018-000570057055-CU-OE-CTL,
was removed from the Superior Court of the State of California,
County of San Diego, to the U.S. District Court for the Southern
District of California on February 17, 2022.
The Clerk of Court for the Southern District of California assigned
Case No. 3:22-cv-00218-BAS-JLB to the proceeding.
The case arises from the Defendants' alleged violations of the
California Labor Code and the California's Unfair Competition Law
including failure to recall laid-off employees, age discrimination,
constructive discharge, failure to pay vested vacation wages upon
termination, failure to pay minimum wages, failure to pay overtime
wages, failure to provide lawful meal periods, failure to authorize
and permit rest periods, failure to timely pay wages upon
termination, failure to provide accurate itemized wage statements,
and unfair competition.
SeaWorld Parks & Entertainment, Inc. is an American theme park and
entertainment company, headquartered in Orlando, Florida.
Sea World LLC is an operator of amusement parks and kiddie parks,
headquartered in Orlando, Florida. [BN]
The Defendants are represented by:
Aaron H. Cole, Esq.
OGLETREE, DEAKINS, NASH, SMOAK & STEWART, P.C.
400 South Hope Street, Suite 1200
Los Angeles, CA 90071
Telephone: (213) 239-9800
Facsimile: (213) 239-9045
E-mail: aaron.cole@ogletree.com
- and –
Susan M. Wilson, Esq.
OGLETREE, DEAKINS, NASH, SMOAK & STEWART, P.C.
3430 E. Sunrise Drive, Suite 220
Tucson, AZ 85718
Telephone: (520) 544-0300
Facsimile: (520) 544-9675
E-mail: susan.wilson@ogletree.com
SEND A CAKE: Weekes Files ADA Suit in S.D. New York
---------------------------------------------------
A class action lawsuit has been filed against Send A Cake LLC. The
case is styled as Robert Weekes, individually, and on behalf of all
others similarly situated v. Send A Cake LLC, Case No.
1:22-cv-01277 (S.D.N.Y., Feb. 15, 2022).
The lawsuit is brought over alleged violation of the Americans with
Disabilities Act.
Send A Cake -- https://sendacake.com/ -- is the ultimate birthday
cake and gift delivery store.[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
SENIOR LIFE: Bid to Dismiss Miholich Action Tossed
---------------------------------------------------
In the class action lawsuit captioned as KYLE MIHOLICH,
Individually and on Behalf of All Others Similarly Situated, v.
SENIOR LIFE INSURANCE COMPANY, Case No. 3:21-cv-01123-WQH-AGS (S.D.
Cal.), the Hon. Judge William Q. Hayes entered an order denying as
premature the Defendant's motion to dismiss and or strike.
The Defendant contends that Plaintiff's class allegations should be
stricken for the following reasons:
(1) the class definition contained in the FAC is fail safe;
(2) individualized inquiries into issues such as consent
predominate over common questions; and
(3) the proposed class is overbroad. Plaintiff contends that
striking class allegations at 13 stage in the litigation
is premature, that membership in the proposed class can
be determined through objective criteria, that consent is
not a criterion for class membership, that the class is
not overbroad, and that the court is able to modify the
class definition at later proceedings.
Under Rule 12(f), the court may strike "any insufficient defense or
any redundant, immaterial, impertinent or scandalous matter." Fed.
R. Civ. P. 12(f). Striking class allegations prior to discovery and
a motion for class certification is rare and generally disfavored.
appropriate where "the requirements of commonality, typicality and
adequacy cannot possibly be met." The decision of whether to grant
a motion to 25 strike lies within the sound discretion of the
district court.
The class issues raised by Defendant in this case are appropriately
considered at class certification proceedings.
On June 16, 2021, the Plaintiff Miholich filed a Class Action
Complaint against Senior Life, arising from Defendant's alleged
violations of the Telephone Consumer Protection Act of 1991
("TCPA").
On September 7, 2021, Plaintiff filed a First Amended Class Action
Complaint. On September 21, 2021, Defendant filed a Motion to
Dismiss and/or Strike the FAC pursuant to Rules 12(b)(1), 12(b)(6),
12(f), and 23 of the Federal Rules of Civil Procedure.
On October 13, 2021, Plaintiff filed an Opposition to the Motion to
Dismiss and/or Strike. On October 20, 2021, the Defendant filed a
Reply.
The Plaintiff is an individual who resides in San Diego,
California. On or about October 27, 2006, Plaintiff's cellular
telephone number ending in 5823 was added to the National
Do-Not-Call Registry.
The Defendant is a corporation headquartered in Georgia that
conducts business in San Diego. "Defendant has sent multiple text
messages to Plaintiff on his cellular telephone, between April 27,
2021 and May 12, 2021, from the telephone numbers (855) 383-4711
and (855) 354-7422."
Senior Life operates as an insurance company.
A copy of the Court's order dated Feb. 10, 2021 is available from
PacerMonitor.com at https://bit.ly/3HXXOD7 at no extra charge.[CC]
SERVICE KING: Moniz Bid for Class Cert Tossed w/o Prejudice
------------------------------------------------------------
In the class action lawsuit captioned as ERICA MONIZ, et al., v.
SERVICE KING PAINT & BODY, LLC, Case No. 5:18-cv-07372-EJD (N.D.
Cal.), the Hon. Judge Edward J. Davila entered an order denying
without prejudice the motion for class certification.
Should Plaintiffs file a renewed motion for class certification,
the parties need not address the Rule 23(a)(2) factors the Court
has already determined Plaintiffs to have satisfied. Future
briefing from both parties should be organized in a manner that
makes clear which Rule 23(a) or (b) factor is being addressed, with
appropriate support and authority for their position rather than
the piecemeal organization presented to the Court on the current
motion, the Court says.
The Plaintiffs Erica Moniz, Hagop Ajemyan, Hugo Gutierrez, and
Philip Gabriel initiated this wage and hour putative class action
against Defendant Service King.
The Plaintiffs are former Service King employed as Body Technicians
and Painters. During the relevant period, Service King paid Body
Technicians and Painters an hourly wage, as well as incentive
"Productivity Pay" based on "flag hours."
Service King is an auto body collision and repair company that
operates repair shops.
A copy of the Court's order dated Feb. 10, 2021 is available from
PacerMonitor.com at https://bit.ly/3HYb0I5 at no extra charge.[CC]
SHATTUCK LABS: Bragar Eagel & Squire Reminds of April 1 Deadline
----------------------------------------------------------------
Bragar Eagel & Squire, P.C., a nationally recognized shareholder
rights law firm, reminds investors that class actions have been
commenced on behalf of stockholders of Shattuck Labs, Inc. (NASDAQ:
STTK), Electric Last Mile Solutions (NASDAQ: ELMS), and New
Oriental Education & Technology Group, Inc. (NYSE: EDU).
Stockholders have until the deadlines below to petition the court
to serve as lead plaintiff. Additional information about each case
can be found at the link provided.
Shattuck Labs, Inc. (NASDAQ: STTK)
Class Period: October 9, 2020 IPO; October 9, 2020 - November 9,
2021
Lead Plaintiff Deadline: April 1, 2022
According to the lawsuit, the materials supporting the IPO and
defendants throughout the Class Period made false and/or misleading
statements and/or failed to disclose that: (1) the Collaboration
Agreement with Takeda was not solid; (2) Takeda and Shattuck would
"mutually agree" to terminate the Collaboration Agreement in
essentially one year; (3) as a result, Shattuck would cease to
receive any future milestone, royalty, or other payments from
Takeda; and (4) as a result, defendants' statements about the
Company's business, operations, and prospects were materially false
and misleading and/or lacked a reasonable basis at all relevant
times. When the true details entered the market, the lawsuit claims
that investors suffered damages.
For more information on the Shattuck Labs class action go to:
https://bespc.com/cases/STTK
Electric Last Mile Solutions (NASDAQ: ELMS)
Class Period: Mach 31, 2021 - February 1, 2022
Lead Plaintiff Deadline: April 4, 2022
According to the lawsuit, defendants throughout the Class Period
made false and/or misleading statements and/or failed to disclose:
(1) ELMS's previously issued financial statements were false and
unreliable; (2) ELMS's earlier reported financial statements would
need restatement; (3) certain ELMS executives and/or directors
purchased equity in the Company at substantial discounts to market
value without obtaining an independent valuation; (4) on November
25, 2021 (Thanksgiving), the Company's Board formed an independent
Special Committee to conduct an inquiry into certain sales of
equity securities made by and to individuals associated with the
Company; and (5) as a result, Defendants' statements about its
business, operations, and prospects, were materially false and
misleading and/or lacked a reasonable basis at all relevant times.
When the true details entered the market, the lawsuit claims that
investors suffered damages.
For more information on the Electric Last Mile class action go to:
https://bespc.com/cases/ELMS
New Oriental Education & Technology Group, Inc. (NYSE: EDU)
Class Period: April 24, 2018 - July 22, 2021
Lead Plaintiff Deadline: April 5, 2022
The Complaint alleges that the Defendants made materially false and
misleading statements because they misrepresented and failed to
disclose adverse facts about New Oriental's business, operations
and prospects, which were known to defendants or recklessly
disregarded by them, as follows: (a) that New Oriental's revenue
and operational growth was the result of deceptive marketing
tactics and abusive business practices that flouted Chinese
regulations and policies and exposed the Company to an extreme risk
that more draconian measures would be imposed on the Company; (b)
that New Oriental had engaged in misleading and fraudulent
advertising practices, including the provision of false and
misleading discount information designed to obfuscate the true cost
of the Company's programs to its customers; (c) that New Oriental
had falsified teacher qualifications and experience in order to
attract customers and increase student enrollments; (d) that New
Oriental had defied prior government warnings against linking
school enrollments with the provision of private tutoring services;
(e) that, as a result of the foregoing, New Oriental was subject to
an extreme undisclosed risk of adverse enforcement actions,
regulatory fines and penalties, and the imposition of new rules and
regulations adverse to the Company's business and interests; (f)
that the new rules, regulations and policies to be implemented by
the Chinese government following the Two Sessions parliamentary
meetings were far more severe than represented to investors by
defendants and in fact posed an existential threat to the Company
and its business; and (g) that, as a result of the foregoing,
defendants' positive statements about the Company's business,
operations, and prospects were materially misleading and lacked a
reasonable factual basis. Additionally, as defendants knew or
recklessly disregarded, New Oriental's annual reports misleadingly
failed to include information required by SEC rules and
regulations.
For more information on the New Oriental Education class action go
to: https://bespc.com/cases/EDU
About Bragar Eagel & Squire, P.C.:
Bragar Eagel & Squire, P.C. is a nationally recognized law firm
with offices in New York, California, and South Carolina. The firm
represents individual and institutional investors in commercial,
securities, derivative, and other complex litigation in state and
federal courts across the country. For more information about the
firm, please visit www.bespc.com. Attorney advertising. Prior
results do not guarantee similar outcomes.
Contact Information:
Bragar Eagel & Squire, P.C. Brandon Walker, Esq. Alexandra B.
Raymond, Esq. (212) 355-4648 investigations@bespc.comwww.bespc.com
[GN]
SIGNODE INDUSTRIAL: Ruling to Produce Docs in Stone Suit Affirmed
-----------------------------------------------------------------
In the case, HAROLD STONE, et al., Plaintiffs, v. SIGNODE
INDUSTRIAL GROUP LLC, et al., Defendants, Case No. 17-cv-05360
(N.D. Ill.), Judge John F. Kness of the U.S. District Court for the
Northern District of Illinois, Eastern Division, affirmed
Magistrate Judge Susan E. Cox's ruling granting in part and denying
in part the Plaintiffs' motion to compel the Defendants to produce
certain information and documents.
I. Introduction
The Plaintiffs bring the class action to enforce wrongfully denied
healthcare benefits under a collective bargaining agreement. The
Court, by the previously assigned judge, granted the Plaintiffs a
permanent injunction that ordered the Defendants to reinstate the
Plaintiffs' benefits; the Seventh Circuit upheld that ruling in a
published opinion. Still remaining before the Court is a
determination regarding damages. To assist in the resolution of
this phase, the case has been referred to Judge Cox for supervision
of discovery.
On July 9, 2021, Judge Cox granted in part and denied in part the
Plaintiffs' motion to compel the Defendants to produce information
and documents related to their profits, "consequential gains," and
"saved expenditures" regarding Defendants' failure to provide
health benefits for the retirees, as well as information and
documents related to the Defendants' compliance with the Court's
injunction order. Now before the Court are the Plaintiffs' and the
Defendants' objections to those portions of Judge Cox's ruling
adverse to the respective parties.
II. Background
The Plaintiffs are a labor union and two former employees of the
Defendants' predecessor. They brought the case on behalf of other
similarly situated retirees of the former Acme Packaging Plant in
Riverdale, Illinois, against the Defendants for terminating the
Plaintiffs' healthcare benefits in 2016 in violation of both
Section 301 of the Labor-Management Relations Act, 29 U.S.C.
Section 185, and Section 502(a)(1)(B) of the Employee Retirement
Income Security Act of 1974 ("ERISA"), 29 U.S.C. Section
1132(a)(1)(B). In 2019, the Court granted summary judgment in favor
of the Plaintiffs and entered a permanent injunction ordering the
Defendants to reinstate the Plaintiffs' healthcare benefits. That
decision was upheld on appeal.
After the Court lifted the post-appeal stay as to the remaining
open matters, it referred the case to Judge Cox to supervise
pending discovery relating primarily to damages. As part of that
discovery inquiry, the Plaintiffs served document requests and
interrogatories on the Defendants. The parties reached an impasse
on two issues, which led the Plaintiffs to move to compel the
Defendants to produce information regarding: (1) profits, "saved
expenditures" and "other consequential gains" realized after the
Defendants ceased providing healthcare benefits to the Plaintiffs;
and (2) "injunction compliance" regarding the restoration of
healthcare benefits. Judge Cox granted the motion as to the first
part and denied it as to the second.
The Defendants challenged the Plaintiffs' motion on three primary
grounds. First, the Defendants asserted that ERISA Section
502(a)(3) (providing for "other appropriate relief") does not
permit the extracontractual equitable relief sought by the
Plaintiffs. Second, the Defendants argued that, even if ERISA does
permit recovery of extracontractual damages, a Section 502(a)(1)(B)
claim for money damages would make the Plaintiffs whole and thus
precludes a Section 502(a)(3) claim for equitable relief. Third,
the Defendants contended that the Plaintiffs failed to show that
the requested funds are in their possession and can be identified
as required under Montanile v. Board of Trustees of the National
Elevator Industry Health Benefit Plan, 577 U.S. 136, 144 (2016).
Judge Cox rejected each of the Defendants' arguments for being,
although persuasive in a potential future dispositive motion,
improperly raised in response to a discovery motion. As for the
portion of the Plaintiffs' motion to compel seeking discovery on
the Defendants' compliance with the Court's permanent injunction,
Judge Cox refused to allow the Plaintiffs to "go on the proverbial
fishing expedition to explore whether Defendants are reinstating
health-care benefits" as prescribed by the Court's order. She
advised the Plaintiffs that, to the extent they believe the
Defendants have failed to comply with the injunction, they should
file a motion to that effect before the district judge, rather than
improperly raise the issue through discovery.
Now before the Court are the parties' individually-filed Rule 72(a)
Objections to the portion of Judge Cox's ruling adverse to each
party. The Defendants object to the grant of the motion to compel
them to produce information and documents related to
extracontractual equitable relief; to that end, the Defendants
request that the Court: (1) modifies the part of Judge Cox's Order
granting the Plaintiffs' motion to compel discovery so that it
instead entirely denies the Plaintiffs' motion to compel; and (2)
in the alternative, grants leave to file a limited summary judgment
motion on the equitable remedies as recommended by Judge Cox.
In turn, the Plaintiffs object to the portion of Judge Cox's ruling
denying their motion to compel discovery on injunction compliance.
III. Discussion
Parties may obtain discovery regarding "any nonprivileged matter
that is relevant to any party's claim or defense and proportional
to the needs of the case." Whether ERISA precludes what are, in
effect, disgorgement and restitution remedies in the case remains
an unsettled question of law. For this reason, it is improper to
resolve the issue on a discovery motion. Accordingly, Judge Cox's
decision to permit discovery on matters relevant and proportional
to the Plaintiffs' damages claims -- which include a claim for
equitable relief under ERISA -- does not rise to the level of clear
error under Rule 72(a) of the Federal Rules of Civil Procedure.
A. Defendants' Objection
Judge Kness opines that the Defendants fail to present binding
authority that disgorgement or restitution under ERISA Section
502(a)(3) are prohibited forms of relief. Respecting the unresolved
nature of the law governing extracontractual damages under ERISA
and its relevance to the Plaintiffs' claims, he finds that Judge
Cox did not commit clear error in permitting discovery on
extracontractual relief. Assuming ERISA permits disgorgement or
restitution remedies, it remains unclear whether the Plaintiffs can
ultimately recover under both Section 502(a)(1)(B) and Section
502(a)(3). Ultimately, Defendants may establish that the
Plaintiffs' request for equitable relief cannot coexist with an
available damages remedy. But it is premature to resolve that
issue.
In view of the present posture of the case, Judge Cox acted
reasonably in deciding that the better approach is discovery now,
motion practice later. That finding in turn requires Judge Kness to
hold that Judge Cox's ruling was not clearly erroneous or contrary
to law. Accordingly, the Defendants' objection is overruled.
B. Plaintiffs' Objection
Judge Kness holds that it is axiomatic that "the proper vehicle to
enforce a court order is a motion in the original case," not a
motion to compel discovery on the matter. Judge Cox's refusal to
allow the Plaintiffs to go on a "proverbial fishing expedition" and
explore whether the Defendants complied with the Court's injunction
order leaves the Court far from a "definite and firm conviction
that a mistake has been made." Just the opposite; Judge Cox
correctly concluded that the Plaintiffs (like the Defendants) used
the wrong procedural tool to gather information outside the bounds
of Rule 26(b). If what the Plaintiffs allege is true -- if the
Defendants are in fact violating the Court's order -- the
Plaintiffs retain the discretion to seek relief by way of an
appropriate motion.
IV. Conclusion
For the reasons he stated, Judge Kness denied the parties'
objections to Judge Cox's ruling and affirmed her ruling.
A full-text copy of the Court's Feb. 9, 2022 Memorandum Opinion &
Order is available at https://tinyurl.com/ydcvp5ht from
Leagle.com.
SMITH & WESSON: Stallworth Suit Removed to N.D. Illinois
--------------------------------------------------------
The case captioned as Quintel Stallworth, individually and on
behalf of similarly situated individuals v. Smith & Wesson Brands,
Inc., Case No. 2022LA000038 was removed from the Circuit Court of
DuPage County, to the U.S. District Court for Northern District of
Illinois on Feb. 15, 2022.
The District Court Clerk assigned Case No. 1:22-cv-00830 to the
proceeding.
The nature of suit is stated as Contract Product Liability.
Smith & Wesson Brands, Inc. -- https://ir.smith-wesson.com/ -- is
an American firearms manufacturer headquartered in Springfield,
Massachusetts.[BN]
The Plaintiff is represented by:
Chandne Jawanda, Esq.
Eugene Y. Turin, Esq.
Steven Russell Beckham, Esq.
MCGUIRE LAW, P.C.
55 W. Wacker Dr. 9th Fl.
Chicago, IL 60601
Phone: (312) 893-7002
Email: cjawanda@mcgpc.com
eturin@mcgpc.com
SBeckham@mcgpc.com
The Defendant is represented by:
Andrew Arthur Lothson, Esq.
SWANSON, MARTIN & BELL
330 North Wabash, Suite 3300
Chicago, IL 60611
Email: alothson@smbtrials.com
SOCLEAN INC: Borland Suit Transferred to W.D. Pennsylvania
----------------------------------------------------------
The case styled as James Borland, individually and on behalf of all
others similarly situated v. SoClean, Inc., Case No. 8:21-cv-01794
was transferred from the U.S. District Court for the Central
District of California, to the U.S. District Court for the Western
District of Pennsylvania on Feb. 16, 2022.
The District Court Clerk assigned Case No. 2:22-cv-00293-JFC to the
proceeding.
The nature of suit is stated as Other Contract for Contract
Dispute.
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:
Clark Hansen Fielding, Esq.
FIELDING LAW APC
18575 Jamboree Road Suite 600
Irvine, CA 92612
Phone: (949) 288-5484
Fax: (949) 386-1516
Email: clark@fieldinglawfirm.com
- and -
Andrew J. Nantz, Esq.
Brett T. 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
kjennings@vnjlaw.com
The Defendant is represented by:
Colin G Cabral, Esq.
Shawn Scott Ledingham, Jr., Esq.
PROSKAUER ROSE LLP
2029 Century Park East 24th Floor
Los Angeles, CA 90067-3010
Phone: (310) 557-2900
Fax: (310) 557-2193
Email: ccabral@proskauer.com
sledingham@proskauer.com
SOCLEAN INC: Seicol Suit Transferred to W.D. Pennsylvania
---------------------------------------------------------
The case styled as David Seicol, individually and on behalf of all
others similarly situated v. SoClean, Inc., Case No. 7:21-cv-08854
was transferred from the U.S. District Court for the Southern
District of New York, to the U.S. District Court for the Western
District of Pennsylvania on Feb. 15, 2022.
The District Court Clerk assigned Case No. 2:22-cv-00291-JFC to the
proceeding.
The nature of suit is stated as Other Contract for Breach of
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:
John Joseph Bailly, Esq.
BAILLY & MCMILLAN, LLP
707 Westchester Avenue, Suite 405
White Plains, NY 10604
Phone: (914) 684-9100
Email: jbailly@bandmlaw.com
The Defendant is represented by:
Jeffrey H. Warshafsky, Esq.
PROSKAUER ROSE
11 Times Square
New York, NY 10036
Phone: (212) 969-3241
Fax: (212) 969-2900
Email: jwarshafsky@proskauer.com
SOLOMID CORP: Any Bid for Class Cert. Must be Filed by April 29
---------------------------------------------------------------
In the class action lawsuit captioned as ARTURO ESTEVEZ,
individually, and on behalf of all others similarly situated, v.
SOLOMID CORPORATION, Case No. 1:21-cv-08942-LJL (S.D.N.Y.), the
Hon. Judge Lewis J. Liman entered an order:
The parties appeared for an Initial Pretrial Conference in this
matter on February 9, 2022. As discussed at that conference, it is
ordered that,
-- The parties shall submit a letter to March 1, 2022
the Court updating it as to any
progress that has been made in reaching
a settlement on this matter on or
before:
-- Any motion for class certification April 29, 2022
shall be made by:
-- The parties shall appear for a Aug. 1, 2022
Post-Discovery Status Conference
on:
The Court said, "If the parties do not reach a settlement by that
date, the Court plans to refer the parties to the Southern District
of New York's Mediation Program. Third-party discovery will be
stayed, without prejudice to either party making an application to
open such discovery."
SoloMid Corporation is the owner of TSM an esports gaming team. It
also operates gaming websites, such as ProBuilds, and League of
Legends.
A copy of the Court's order dated Feb. 10, 2021 is available from
PacerMonitor.com at https://bit.ly/3HaaA09 at no extra charge.[CC]
STATE STREET: Sanction of Lieff in Arkansas Teacher Suit Upheld
---------------------------------------------------------------
In the case, ARKANSAS TEACHER RETIREMENT SYSTEM, on behalf of
itself and all others similarly situated; JAMES
PEHOUSHEK-STANGELAND; ANDOVER COMPANIES EMPLOYEE SAVINGS AND PROFIT
SHARING PLAN; ARNOLD HENRIQUEZ; MICHAEL T. COHN; WILLIAM R. TAYLOR;
RICHARD A. SUTHERLAND, Plaintiffs v. STATE STREET CORPORATION;
STATE STREET BANK AND TRUST COMPANY; STATE STREET GLOBAL MARKETS,
LLC; DOES 1-20, Defendants. LIEFF CABRASER HEIMANN & BERNSTEIN,
LLP, Interested Party, Appellant v. LABATON SUCHAROW LLP; THORNTON
LAW FIRM LLP; KELLER ROHRBACK LLP; McTIGUE LAW LLP; ZUCKERMAN
SPAEDER LLP, Interested Parties, Appellees, Case No. 21-1069 (1st
Cir.), the U.S. Court of Appeals for the First Circuit affirmed the
district court's Rule 11(b) sanction of Lieff Cabraser Heimann &
Bernstein LLP.
I. Background
Lieff served as one of the principal law firms representing a class
of investors in a very successful challenge to charges imposed by
State Street Bank and Trust Company on foreign exchange products.
In 2011, Lieff, along with Thornton Law Firm LLP and Labaton
Sucharow LLP, filed a class action complaint in the District of
Massachusetts on behalf of the Arkansas Teacher Retirement System
and other similarly situated institutional investors, alleging that
the investors' custodian bank overcharged them for foreign currency
exchange products in violation of the bank's fiduciary,
contractual, and statutory duties. The district court appointed
Labaton the interim Lead Counsel for the plaintiff class, and
deemed Thornton "liaison counsel" and Lieff "additional counsel."
After five years of litigation and mediation, the parties reached a
settlement-in-principle for $300 million.
The appeal arises from the post-settlement process of apportioning
a $300 million recovery between the class and its lawyers. The
district court ultimately awarded a handsome $60 million fee to the
lawyers representing the class. In so doing, though, it opined that
the class counsel, including Lieff's lawyers, engaged in
misconduct.
Specifically, the district court faulted Lieff for using a template
for its fee declaration that misleadingly indicated that it
regularly charged paying clients the rates supporting its lodestar,
for failing to exercise reasonable care in contributing to a
suspect $4.1 million payment to a lawyer in Texas, and for
materially misrepresenting a study regarding typical fees awarded
in similar cases. For the third misstep, the district court
formally sanctioned Lieff under Federal Rule of Civil Procedure
11(b), though without any monetary penalty.
Lieff now appeals. Amicus challenges Lieff's appeal on two fronts.
First, it claims the First Circuit does not have appellate
jurisdiction over Lieff's claims to the extent that the district
court merely criticized Lieff's performance without imposing any
sanctions. Second, it contends that, on the merits, the district
court's criticisms and Rule 11 sanction were appropriate.
II. Discussion
The First Circuit divides Lieff's challenges into two categories:
The district court's finding that Lieff violated Rule 11, and the
district court's statements -- unconnected to any express finding
of a Rule 11 violation -- that criticized Lieff for the lack of
accuracy in describing its lodestar amount and for not having
adequately investigated the basis for the large payment to
Chargois.
The First Circuit explains that it plainly has appellate
jurisdiction to review the formal finding of a Rule 11 violation.
The question, though, is whether it also has jurisdiction to review
the latter group of criticisms unconnected to any such finding.
Lieff suggests that the district court relied in part on its
criticisms of Lieff to calculate a fee award that was lower than it
otherwise would have been. It asserts that if the First Circuit
sets aside all of the district court's criticisms of Lieff's
conduct, Lieff might be entitled to receive some money out of the
funds awarded to the class if any such funds remain unclaimed by
class members.
The First Circuit finds no basis for deviating from its circuit's
general rule that a district court's criticism of counsel
unconnected to any challenge to a judgment or order on appeal is
not itself reviewable on appeal. That being said, an "order
determining that an attorney committed Rule 11 violations" is
"appealable, being distinguishable from mere criticism." So it
turns now to Lieff's appeal of the Rule 11 sanction.
Lieff raises three challenges to the district court's finding that
Lieff violated Rule 11 by misrepresenting the Fitzpatrick study in
the class counsel's fee memorandum supporting its requested
attorneys' fees. First, Lieff claims that the district court
imposed the sanction without proper notice or an adequate
opportunity to respond, in violation of Rule 11 and due process.
Second, Lieff contends that it had no relevant Rule 11 obligation
because only Labaton as Lead Counsel "signed" the filing. Finally,
it defends its actions substantively, arguing that the memorandum
was not misleading and did not violate Rule 11.
First, the First Circuit finds that the district court met the
important requirement that it give both notice of the basis for a
possible sanction and a fair opportunity to show why there should
be no sanction, even though the court did not invoke the rule's
preferred terminology. Second, the absence of Lieff's penned
signature provides no defense to the finding that Lieff presented
the problematic assertion to the court. Finally, Lieff provided the
Court with a record that supports the formality of a measured
declaration of a Rule 11 violation without any monetary penalty.
III. Conclusion
For the foregoing reasons, the First Circuit dismissed as
unappealable Lieff's claims regarding the district court's mere
criticisms and affirmed the district court's Rule 11 sanction. As
there was only one party on appeal, no costs are awarded.
A full-text copy of the Court's Feb. 9, 2022 Order is available at
https://tinyurl.com/yc2xfan6 from Leagle.com.
Samuel Issacharoff -- samuel.issacharoff@nyu.edu -- for interested
party, Appellant Lieff Cabraser Heimann & Bernstein, LLP.
Theodore H. Frank -- ted.frank@hlli.org -- with whom M. Frank
Bednarz -- frank.bednarz@hlli.org -- was on brief, for amicus
curiae Hamilton Lincoln Law Institute.
SYMANTEC CORP: Settlement in SEB Suit Gets Final Nod
----------------------------------------------------
In the class action lawsuit captioned as SEB INVESTMENT MANAGEMENT
AB, individually and on behalf of all others similarly situated, v.
SYMANTEC CORPORATION and GREGORY S. CLARK, Case No.
3:18-cv-02902-WHA (N.D. Cal.), the Hon. Judge William Alsup entered
an order granting final approval of class action settlement and
plan of allocation, and granting attorney's fees and litigation
expense as follows:
-- Final approval of the $70 million settlement is granted.
-- The plan of allocation is approved.
-- The motion for attorney's fees is granted.
-- Class counsel Bernstein Litowitz Berger & Grossman LLP is
awarded $13.3 Million for Attorney's Fees, with interest at
the same rate as the settlement fund. Class counsel shall
have half the fees immediately upon entry of this order,
and the other half when class counsel certifies that all
settlement funds have been properly distributed and the
file can be completely closed.
-- Class counsel's litigation expenses in the amount of
$2,000,208.69, to be paid immediately, are granted.
-- Counsel shall file a report promptly after the claims
deadline detailing the results of the claims process.
The Plaintiff filed its motion for class certification in January
2020. Following full briefing and a hearing, a May 2020 order
certified the following class:
"All persons or entities who purchased or otherwise acquired
publicly-traded Symantec common stock during the period from
May 11, 2017, to August 2, 2018, inclusive (the class
period), and who were damaged thereby (the class)."
The Defendant Symantec Corporation (now known as NortonLifeLock
Inc.) sold cybersecurity products and services. In early and
mid-2016, Symantec divested one software company and acquired
another, all in an effort to shore up its ailing financials. After
acquiring the new company, the newly-acquired company, Blue Coat,
sent its management team to the helm.
The Defendant Gregory Clark took over as Symantec's CEO, dismissed
defendant Nicholas Noviello became Symantec’s CFO, while
Symantec’s CAO before the Blue Coat acquisition, dismissed
defendant Mark Garfield, continued on in his role. In November
2016, Symantec acquired a second cyber-security company, LifeLock,
Inc. In the relevant financial disclosures, Symantec described the
acquisitions of Blue Coat and LifeLock as transformative 11 which
would lead to cost savings and growth. In this connection, Symantec
increased its revenue and income targets for executive
compensation.
A copy of the Court's order dated Feb. 10, 2021 is available from
PacerMonitor.com at https://bit.ly/36lLoXH at no extra charge.[CC]
T-MOBILE USA: Achermann Suit Removed to N.D. California
-------------------------------------------------------
James Achermann, individually, and on behalf of a class of
similarly situated persons v. T-MOBILE USA, INC., Case No.
CGC-21-594632 was removed from the Superior Court of San Francisco
County to the United States District Court for the Northern
District of California on Feb. 4, 2022, and assigned Case No.
4:22-cv-00065-BCW.
The Plaintiff alleges that he is a T-Mobile customer. According to
Plaintiff, in mid-August 2021, a third-party criminal actor
illegally accessed T-Mobile's systems containing personally
identifiable information (PII) for many T-Mobile's customers,
including the Plaintiff. The Plaintiff alleges two claims and seeks
compensatory damages, statutory damages under the CCPA, an order
"instructing Defendant to purchase or provide funds for adequate
credit monitoring services for the Plaintiff and all class
members," an award of "equitable and public injunctive relief," and
attorneys' fees. The Plaintiff alleges those claims on his own
behalf and on behalf of "all T-Mobile customers, prospective
customers and past customers who reside in California and whose PII
was accessed or otherwise compromised in the Data Breach, which,
according to press releases issued by T-Mobile, occurred on or
about August 13, 2021."[BN]
The Defendant is represented by:
Stuart Plunkett, Esq.
Kathryn Christopherson, Esq.
ALSTON & BIRD LLP
560 Mission Street, Suite 2100
San Francisco, CA 94105
Phone: (415) 243-1000
Facsimile: (415) 243-1001
Email: stuart.plunkett@alston.com
kathryn.christopherson@alston.com
TAL EDUCATION: Kessler Topaz Reminds of April 5 Deadline
--------------------------------------------------------
The law firm of Kessler Topaz Meltzer & Check, LLP(www.ktmc.com)
informs investors that a securities class action lawsuit has been
filed against TAL Education Group ("TAL") (NYSE:TAL). The action
charges TAL with violations of the federal securities laws,
including omissions and fraudulent misrepresentations relating to
the company's business, operations, and prospects. As a result of
TAL's materially misleading statements to the public, TAL investors
have suffered significant losses.
Kessler Topaz is one of the world's foremost advocates in
protecting the public against corporate fraud and other wrongdoing.
Our securities fraud litigators are regularly recognized as leaders
in the field individually and our firm is both feared and respected
among the defense bar and the insurance bar. We are proud to have
recovered billions of dollars for our clients and the classes of
shareholders we represent.
CLICK https://bit.ly/3HgtRN6 TO SUBMIT YOUR TAL LOSSES.
YOU CAN ALSO CLICK ON THE FOLLOWING LINK OR COPY AND PASTE IN YOUR
BROWSER:
https://www.ktmc.com/tal-class-action-lawsuit?utm_source=PR&utm_medium=link&utm_campaign=tal
LEAD PLAINTIFF DEADLINE: April 5, 2022
CLASS PERIOD: April 26, 2018 through July 22, 2021
CONTACT AN ATTORNEY TO DISCUSS YOUR RIGHTS:
James Maro, Esq. (484) 270-1453 or Email at info@ktmc.com
TAL'S ALLEGED MISCONDUCT
TAL provides K-12 after-school tutoring services in the People's
Republic of China. Specifically, the company offers tutoring
services to K-12 students covering various academic subjects,
including mathematics, physics, chemistry, biology, history,
geography, political science, English, and Chinese.
On April 25, 2021, media reports revealed that the city of Beijing
had fined four online education agencies, including TAL, the
maximum fine of 500,000 yuan (approximately $80,000) each for
misleading customers with false advertising. Specifically,
regulators found that TAL's VIE, Beijing Xueersi Education
Technology Co., Ltd., had been misrepresenting the un-discounted
costs of enrollment in its courses to consumers, thereby deceiving
customers into paying full price for courses that they believed
they were receiving at a discount. Following this news, the price
of TAL American Depository Shares ("ADSs") dropped from $53.14 on
May 11, 2021, to $46.25 on May 13, 2021, a 13% decline over the
two-day period.
Then, on June 1, 2021, Chinese regulators announced they had fined
15 off-campus training institutions, including TAL, for illegal
activities such as false advertising and fraud. The offending
companies, including TAL, were hit with maximum penalties for their
illegal business practices, totaling a combined 36.5 million yuan
($5.73 million). Following this news, the price of TAL ADSs dropped
from $40.51 on June 1, 2021, to $33.27 on June 3, 2021, nearly an
18% decline over the two-day period.
Finally, on July 23, 2021, China unveiled a sweeping overhaul of
its education sector, banning companies that teach the school
curriculum from making profits, raising capital or going public.
This drastic measure effectively ended any potential growth in the
for-profit tutoring sector in China. Following this news, the price
of TAL ADSs fell from $20.52 on July 22, 2021, to just $4.40 on
July 26, 2021, a nearly 79% decline.
WHAT CAN I DO?
TAL investors may, no later than April 5, 2022 seek to be appointed
as a lead plaintiff representative of the class through Kessler
Topaz Meltzer & Check, LLPor other counsel, or may choose to do
nothing and remain an absent class member. Kessler Topaz Meltzer &
Check, LLP encourages TAL investors who have suffered significant
losses to contact the firm directly to acquire more information.
WHO CAN BE A LEAD PLAINTIFF?
A lead plaintiff is a representative party who acts on behalf of
all class members in directing the litigation. The lead plaintiff
is usually the investor or small group of investors who have the
largest financial interest and who are also adequate and typical of
the proposed class of investors. The lead plaintiff selects counsel
to represent the lead plaintiff and the class and these attorneys,
if approved by the court, are lead or class counsel. Your ability
to share in any recovery is not affected by the decision of whether
or not to serve as a lead plaintiff.
ABOUT KESSLER TOPAZ MELTZER & CHECK, LLP
Kessler Topaz Meltzer & Check, LLP prosecutes class actions in
state and federal courts throughout the country and around the
world. The firm has developed a global reputation for excellence
and has recovered billions of dollars for victims of fraud and
other corporate misconduct. All of our work is driven by a common
goal: to protect investors, consumers, employees and others from
fraud, abuse, misconduct and negligence by businesses and
fiduciaries. At the end of the day, we have succeeded if the bad
guys pay up, and if you recover your assets. The complaint in this
action was not filed by Kessler Topaz Meltzer & Check, LLP. For
more information about Kessler Topaz Meltzer & Check, LLP please
visit www.ktmc.com.
CONTACT:
Kessler Topaz Meltzer & Check, LLP
James Maro, Jr., Esq.
280 King of Prussia Road
Radnor, PA 19087
(484) 270-1453
info@ktmc.com [GN]
TEP ROCKY: Class Certification Bid Due April 8 in Jolley Suit
-------------------------------------------------------------
In the class action lawsuit captioned as Jolley Potter Ranches
Energy Co, LLC v. TEP Rocky Mountain LLC, Case No. 1:19-cv-00495
(D. Colo.), the Hon. Judge Gordon P. Gallagher entered an order on
motion to amend/correct/modify class certification dates:
-- The class certification motion is due: April 8, 2022
-- Response is due: May 23, 2022
-- Reply is due: July 7, 2022
The request to enlarge the page limits is granted in part in that
the class certification motion page limit is now 25 pages, the
response is 25 pages, and the reply will be no more than 17 pages.
The Court finds that the above page limits are sufficiently
expansive to allow for full briefing of the issue, but that the
limits requested in the motion are overly expansive, Judge
Gallagher says.
The nature of suit states diversity-breach of fiduciary duty.
TEP Rocky Mountain is a private exploration and production company
that operates the piceance basin assets acquired by Terra Energy
Partners.[CC]
TESLA INC: Faces DFEH Class Suit Over Alleged Race Discrimination
-----------------------------------------------------------------
Joe Dworetzky, writing for PleasantonWeekly.com, reports that
California's Department of Fair Employment and Housing (DFEH)
brought suit against Tesla Inc., accusing the company of a
far-reaching and pervasive pattern of racially discriminatory
conduct against Black and African American workers at its Fremont
plant.
The civil rights suit is the culmination of a three-year
investigation into conditions at the plant. DFEH allegedly
considered hundreds of complaints from workers and "found evidence
that defendants subjected its Black and/or African American workers
to racial harassment and discriminated against them in the terms
and conditions of employment, including assignment, discipline,
promotion, termination, and constructive discharge."
Tesla struck back even before the suit was filed, releasing a
public statement that carried the provocative caption "The DFEH's
Misguided Lawsuit." The statement challenged DFEH's credibility and
claimed that the conduct investigated occurred in the period from
2015 and 2019 and ignored the company's recent efforts in
diversity, equity and inclusion.
The release points out that Tesla is the only California car
manufacturer and "provides the best paying jobs in the automotive
industry to over 30,000 Californians."
The release goes on to say that Tesla is a world leader in
innovation, sustainability and clean energy, and concludes that
"attacking a company like Tesla that has done so much good for
California should not be the overriding aim of a state agency with
prosecutorial authority."
DFEH counted with its own public statement on Feb. 10, stating that
Tesla "has turned a blind eye to years of complaints from Black
workers protesting the near-constant use of racial slurs and
derogatory language in the workplace, and the presence of racist
writing and graffiti in common areas of the workplace, including
swastikas and other hate symbols."
The Fremont plant was previously a General Motors facility. Tesla
purchased it in 2010 and retooled it to produce electric vehicles.
According to the DFEH complaint, the facility has 5.3 million
square feet of space on 370 acres and employs more than 15,000
workers.
According to the state agency's allegation allegations, Black and
African American workers at the plant were subjected to daily
racial slurs and graffiti -- including the "N-word," KKK signs, the
Confederate flag and swastikas -- amidst ongoing discriminatory
conduct.
DFEH alleges that the plant was physically segregated, with Black
workers assigned to work in separate areas and given work that was
more physically challenging and dangerous than that assigned to
white workers.
Complaints by Black workers were, according to DFEH, "ignored,
immediately dismissed, or perfunctorily investigated and then
dismissed."
The complaint reports that a common complaint of the workers DFEH
interviewed was that Black and African American workers were
"taunted by racial slurs and then baited into verbal and physical
confrontations, where they, in turn, were the ones disciplined for
being purportedly 'aggressive' or 'threatening.'"
DFEH alleges that the company's human resources function was
chronically understaffed and unable or unwilling to deal with the
issues.
The suit says that in recent years, Tesla has turned to outsourcing
the hiring of workers to private staffing agencies. DFEH states
that Tesla took this route because in the event of a complaint
about a worker, the staffing agency would have to do the
investigation.
The DFEH brought the suit on behalf of the people of California and
also on behalf of a "group" -- like the "class" in a class action
-- of workers at the Fremont plant.
The complaint lists separate claims for race discrimination by
harassment, by job assignment, and in compensation, discipline,
promotion, termination, discharge, retaliation, and pay.
In many of the claims, DFEH alleges that the company's actions
"were willful, malicious, fraudulent, and oppressive, and were
committed with the wrongful intent to injure Black and/or African
American workers in conscious disregard of their rights."
DFEH seeks money damages as well as injunctive relief.
Tesla has not filed a formal response to the suit, although in its
press release it says that it "will be asking the court to pause
the case and take other steps to ensure that facts and evidence
will be heard."
In its press release, Tesla alleged that "DFEH has been asked on
almost 50 occasions by individuals who believe they were
discriminated against or harassed to investigate Tesla. On every
single occasion, when the DFEH closed an investigation, it did not
find misconduct against Tesla."
It dismisses the suit as "a narrative spun by the DFEH and a
handful of plaintiff firms to generate publicity."
In October 2021, Tesla was slapped with a $137 million jury award
in a race discrimination case brought by a Black former employee
who alleged racial abuse while working as an elevator operator at
the company.
Tesla's contentious interactions with the state of California and
Gov. Gavin Newsom, as well as fights with Alameda County over
COVID-19 restrictions on plant operations, led to Tesla's
announcement in October 2021 that it would move company
headquarters from California to Austin, Texas.
The complaint suggests that the announcement was "another move to
avoid accountability."
DFEH comments that "Tesla's brand, purportedly highlighting a
socially conscious future, masks the reality of a company that
profits from an army of production workers, many of whom are people
of color, working under egregious conditions."
Tesla is one of the world's most valuable companies, with a market
capitalization approaching $1 trillion. [GN]
TOMORROW ENERGY: Shannon Sues Over Unpaid Minimum, Overtime Wages
-----------------------------------------------------------------
Timothy Shannon, individually and on behalf of all others similarly
situated v. Tomorrow Energy Corp., King Ashton Marketing Services,
LLC, Kendra King, Nicholas Ashton, Paul Keene, and John Doe
Corporations I-XX, Case No. 2:22-cv-00204-NBF (W.D. Pa., Feb, 3,
2022), is brought to recover the unpaid minimum wages and overtime;
and for liquidated damages, attorneys' fees, costs, and interest
under the Fair Labor Standards Act (FLSA); 43 Pennsylvania
Statutes; and Ohio Revised Code Ann.
The Defendants have operated pursuant to a policy and practice of
intentionally misclassifying Plaintiff and all other
similarly-situated employees as independent contractors not subject
to the FLSA's overtime and minimum wage provisions. The Defendants
have wilfully refused to pay a minimum wage and willfully refuse to
pay overtime. In willfully refusing to pay a minimum wage and
willfully refusing to pay overtime, Defendants have violated the
minimum wage provisions of the FLSA, says the complaint.
The Plaintiff was hired by Defendants and worked for Defendants as
a sales agent from July 2018 through approximately March 2020.
The Defendants own and operate an enterprise that sells energy
contracts to their customers and potential customers.[BN]
The Plaintiff is represented by:
James L. Simon, Esq.
THE LAW OFFICES OF SIMON & SIMON
5000 Rockside Road
Liberty Plaza Building – Suite 520
Independence, OH 44131
Phone: (216) 525-8890
Email: james@bswages.com
- and -
Clifford P. Bendau, II, Esq.
BENDAU & BENDAU PLLC
P.O. Box 97066
Phoenix, Arizona 85060
Phone AZ: (480) 382-5176
Email: cliff@bswages.com
TRANSWORLD SYSTEMS: Hoffman Class Cert Bid Renoted to April 15
--------------------------------------------------------------
In the class action lawsuit captioned as ESTHER HOFFMAN, et al., v.
TRANSWORLD SYSTEMS INCORPORATED, et al., Case No. 2:18-cv-01132-TSZ
(W.D. Wash.), the Hon. Judge Thomas S. Zilly entered an order:
(1) The parties' stipulated motion to renote motions and
related dates is granted.
a. The motion for summary judgment filed by Defendant
Transworld Systems Incorporated (TSI) is renoted to
April 15, 2022. The Plaintiffs' amended response to
TSI's motion for summary judgment must be filed on or
before March 18, 2022.
b. Plaintiffs' motion for class certification is renoted
to April 15, 2022. Any response to Plaintiffs' motion
for class certification must be filed on or before
April 5, 2022.
(2) The Clerk is directed to send a copy of this Minute Order to
all counsel of record.
TSI is a market-leading provider of accounts receivable management
and student loan servicing solutions.
A copy of the Court's minute order dated Feb. 10, 2021 is available
from PacerMonitor.com at https://bit.ly/3LDFIIL at no extra
charge.[CC]
TRIVING BRANDS: Wilson Suit Transferred to D. Connecticut
---------------------------------------------------------
The case styled as Mosanthony Wilson, James Corsey, individually
and on behalf of all others similarly situated v. Triving Brands,
LLC, Henkel AG & Co. KGGA, Dial Corp. doing business as: Henkel
North American Consumer Goods, Case No. 3:21-cv-01988 was
transferred from the U.S. District Court for the Southern District
of California, to the U.S. District Court for the District of
Connecticut on Feb. 15, 2022.
The District Court Clerk assigned Case No. 3:22-cv-00270-SRU to the
proceeding.
The nature of suit is stated as Other Fraud.
The Thriving Brands Company -- https://thriving-brands.com/ -- is a
firm in Cincinnati, OH that invests in consumer brands
worldwide.[BN]
TYSON FOODS: Court Narrows Claims in Price-Rigging Suit
-------------------------------------------------------
Tyson Foods, Inc. disclosed in its Form 10-Q Report for the
quarterly period ended January 1, 2022, filed with the Securities
and Exchange Commission on February 7, 2022, that the Court granted
the motion to dismiss with respect to certain state law claims in a
putative class action file against the company.
On April 23, 2019, a putative class action complaint was filed
against the company and its beef and pork subsidiary, Tyson Fresh
Meats, Inc., as well as other beef packer defendants, in the United
States District Court for the Northern District of Illinois. The
plaintiffs allege that the defendants engaged in a conspiracy from
January 2015 to the present to reduce fed cattle prices in
violation of federal antitrust laws, the Grain Inspection, Packers
and Stockyards Act of 1921, and the Commodities Exchange Act by
periodically reducing their slaughter volumes so as to reduce
demand for fed cattle, curtailing their purchases and slaughters of
cash-purchased cattle during those same periods, coordinating their
procurement practices for fed cattle settled on a cash basis,
importing foreign cattle at a loss so as to reduce domestic demand,
and closing and idling plants. In addition, the plaintiffs also
allege the defendants colluded to manipulate live cattle futures
and options traded on the Chicago Mercantile Exchange.
The plaintiffs seek, among other things, treble monetary damages,
punitive damages, restitution, and pre- and post-judgment interest,
as well as declaratory and injunctive relief. Other similar
lawsuits were filed by cattle ranchers in other district courts
which were then transferred to the United States District Court for
the District of Minnesota and consolidated and styled as "In Re
Cattle Antitrust Litigation."
On February 18, 2021, the company moved to dismiss the amended
complaints, and on September 23, 2021, the court granted the motion
with respect to certain state law claims but denied the motion with
respect to the plaintiffs' federal antitrust claims.
Tyson Foods, Inc. is a food company based in Arkansas.
TYSON FOODS: Faces Suits Over Antitrust Laws Violation
------------------------------------------------------
Tyson Foods, Inc. disclosed in its Form 10-Q Report for the
quarterly period ended January 1, 2022, filed with the Securities
and Exchange Commission on February 7, 2022, that class action
lawsuits were filed against the company alleging that in the
beginning of January 2008, the defendants conspired and combined to
fix, raise, maintain, and stabilize the price of broiler chickens
in violation of United States antitrust laws.
Beginning in September 2016, a series of purported federal class
action lawsuits styled "In re Broiler Chicken Antitrust Litigation"
were filed in the United States District Court for the Northern
District of Illinois against the company and certain of its poultry
subsidiaries, as well as several other poultry processing
companies.
The operative complaints, which have been amended throughout the
litigation, contain allegations that, among other things, assert
that beginning in January 2008, the defendants conspired and
combined to fix, raise, maintain, and stabilize the price of
broiler chickens in violation of United States antitrust laws. The
plaintiffs also allege that defendants "manipulated and
artificially inflated a widely used Broiler price index, the
Georgia Dock." The plaintiffs further allege that the defendants
concealed this conduct from the plaintiffs and the members of the
putative classes.
The plaintiffs seek treble damages, injunctive relief, pre- and
post-judgment interest, costs, and attorneys’ fees on behalf of
the putative classes. In addition, the complaints on behalf of the
putative classes of indirect purchasers include causes of action
under various state unfair competition laws, consumer protection
laws, and unjust enrichment common laws.
Tyson Foods, Inc. is a food company based in Arkansas.
TYSON FOODS: Settlement Deal in Chicken Grower Suit Gets Initial OK
-------------------------------------------------------------------
Tyson Foods, Inc. disclosed in its Quarterly Report on Form 10-Q
for the quarterly period ended January 1, 2022, filed with the
Securities and Exchange Commission on February 7, 2022, that the
Court granted preliminary approval of the settlement agreement of
the class action lawsuits involving chicken growers.
On January 27, 2017 and March 26, 2017, putative class action
complaints were filed against the company and certain of its
poultry subsidiaries, as well as several other vertically
integrated poultry processing companies, in the United States
District Court for the Eastern District of Oklahoma styled "In re
Broiler Chicken Grower Litigation."
The plaintiffs allege, among other things, that the defendants
colluded not to compete for broiler raising services "with the
purpose and effect of fixing, maintaining, and/or stabilizing
grower compensation below competitive levels." The plaintiffs also
allege that the defendants "agreed to share detailed data on
[g]rower compensation with one another, with the purpose and effect
of artificially depressing [g]rower compensation below competitive
levels." The plaintiffs contend these alleged acts constitute
violations of the Sherman Antitrust Act and Section 202 of the
Grain Inspection, Packers and Stockyards Act of 1921.
The plaintiffs are seeking treble damages, pre- and post-judgment
interest, costs, and attorneys' fees on behalf of the putative
class. Additional named plaintiffs filed similar class action
complaints in federal district courts in North Carolina, Colorado,
Kansas and California. All actions were subsequently consolidated
in the Eastern District of Oklahoma.
In June 2021, the company reached an agreement to settle with the
putative class of broiler chicken farmers all claims raised in this
consolidated action on terms not material to the Company for which
the Company recorded an accrual in its Consolidated Financial
Statements as of October 2, 2021. On August 23, 2021, the Court
granted preliminary approval of the settlement, and a final
fairness hearing is scheduled for February 18, 2022.
Tyson Foods, Inc. is a food company based in Arkansas.
VENUS OVER MANHATTAN: Miller Files ADA Suit in S.D. New York
------------------------------------------------------------
A class action lawsuit has been filed against Venus Over Manhattan
Art LLC. The case is styled as Kimberly Miller, on behalf of
herself and all other persons similarly situated v. Venus Over
Manhattan Art LLC, Case No. 1:22-cv-01281 (S.D.N.Y., Feb. 15,
2022).
The lawsuit is brought over alleged violation of the Americans with
Disabilities Act.
Venus Over Manhattan, known as Venus --
https://www.venusovermanhattan.com/ -- is an art gallery founded in
2012 by Adam Lindemann, with spaces in Manhattan and Los
Angeles.[BN]
The Plaintiff is represented by:
Michael A. LaBollita, Esq.
GOTTLIEB & ASSOCIATES
150 E. 18th Street, Suite Phr
New York, NY 10003
Phone: (212) 228-9795
Email: michael@gottlieb.legal
VERIZON CONNECT: Must Provide Responses to Interrogatory in Hiram
-----------------------------------------------------------------
In the class action lawsuit captioned as ANTONIO HIRAM SANTILLAN,
on behalf of all others similarly situated aggrieved employees, v.
VERIZON CONNECT, INC., a Delaware corporation, Case No.
3:21-cv-01257-H-KSC (S.D. Cal.), the Hon. Judge Karen S. Cawford
entered an order granting the plaintiff's request for an order
compelling defendant to provide supplemental responses to
Interrogatory Nos. 7 through 10 and 12 through 15.
The Court said, "Within 10 days of the date this Order is entered,
the defendant must provide plaintiff with supplemental responses to
these contention interrogatories that directly address the
information requested. As required by Federal Rule of Civil
Procedure 33(b)(3), defendant's responses must be "under oath.""
A copy of the Court's order dated Feb. 10, 2021 is available from
PacerMonitor.com at https://bit.ly/3JBj7dS at no extra charge.[CC]
VIRGINIA: Unemployment Insurance Reforms Advance Following Suit
---------------------------------------------------------------
Ned Oliver, writing for Virginia Mercury, reports that two years
after the COVID-19 pandemic swamped Virginia's unemployment
insurance program, lawmakers are advancing reforms they hope will
address breakdowns that left thousands waiting months for essential
aid.
"We saw unprecedented frustration and failure," said Sen. Jeremy
McPike, D-Prince William, as he presented the legislation late last
month. "I know this is something no one wants to repeat."
The bills, which have now passed both the House and Senate, act on
recommendations made last year by legislative auditors, who issued
a scathing report that faulted management failures and poor
oversight by former Gov. Ralph Northam's administration.
Among other things, auditors found management and administration
officials took no serious steps to increase staffing until more
than a year into the pandemic. And the report says Northam's
administration blocked some early steps explored by the agency.
To avoid a repeat, lawmakers now plan to create a board to keep
closer tabs on how the agency is handling unemployment claims and
tack backlogs. Current General Assembly oversight has focused
almost entirely on issues affecting businesses, namely the health
of the trust fund used to pay benefits and the payroll taxes
necessary to fund it.
The legislation also directs the commission to develop a resiliency
plan detailing how to quickly increase staffing the next time
claims surge.
And it requires officials to further reduce reliance on paper
records and correspondence by requiring employers to provide
information about claims electronically. A common complaint among
employers has been that they've received letters asking them to
verify claims after the deadline to reply.
Finally, it creates an ombudsman to help people making their way
through the employment process.
McPike said he planned to pursue additional reforms through the
budget process. The legislation is being carried in the House by
Del. Kathy Byron, R-Bedford.
The reforms represent the first significant movement toward
addressing problems with the agency despite more than a year of
complaints by people seeking help, a last-place federal ranking for
resolving problems with claims and a class-action lawsuit that led
a federal judge to briefly intervene in the state's handling of
claims.
Advocates applauded the steps even as they said more work remains.
Pat Levy-Lavelle, an attorney at the Legal Aid Justice Center who
works with clients seeking benefits, said he continues to hear from
people struggling to access benefits.
"It's encouraging that legislators in both parties recognize that
there's a lot of work to do in making the Virginia Employment
Commission an agency that's better able to respond to downturns and
deliver essential benefits to Virginia families," he said. [GN]
WAL-MART ASSOCIATES: Bid to Dismiss Nelson Suit Granted in Part
---------------------------------------------------------------
In the case, CHRISTOPHER NELSON, Plaintiff, v. WAL-MART ASSOCIATES,
INC., Defendant, Case No. 3:21-cv-00066-MMD-CLB (D. Nev.), Judge
Miranda M. Du of the U.S. District Court for the District of Nevada
granted in part and denied in part the Defendant's motion to
dismiss.
Before the Court is the Defendant's motion to dismiss ("Motion")
the Amended Complaint ("FAC") under Federal Rule of Civil Procedure
("FRCP") 12(b)(6).
I. Background
Plaintiff Nelson, on behalf of himself and other similarly situated
individuals, sued Defendant Wal-Mart for failing to pay employees
for pre-shift activities and labor. Nelson is a non-exempt hourly
employee of the Defendant's food distribution warehouse in Sparks,
Nevada The warehouse is divided into a "Dry" Section and "Cold"
Section. He was a former processor in the Cold Section, where all
of the Defendant's frozen and refrigerated items are distributed,
and currently works as a processor in the Dry Section. He works
four shifts per week, for 10 paid hours per shift.
Mr. Nelson alleges that the Defendant requires all Dry Section
employees to be prepared at the start of their shift time but does
not permit them to clock in until immediately before their shift.
In preparation for their shift, employees must check out and bring
back a mobile scanner and printer from the Defendant's system
control window, which takes approximately 15 minutes. Nelson
maintains that the scanner and printer are "integral and
indispensable" to his job since Dry Section workers need the
equipment to label and take inventory of Defendant's products. He
alleges that he and other similarly situated workers are not
compensated for this pre-shift activity, which amounts to around
one hour per workweek or $33.53 of overtime pay for him.
Mr. Nelson alleges that the Defendant similarly requires all Cold
Section workers to be prepared at the start of their shift but does
not permit them to clock in until immediately before their shift.
In preparation for their shift, the Defendant requires Cold Section
employees to put on personal protective equipment ("PPE") for
safety reasons due to the cold working environment. Nelson
estimates that the process of donning the PPE takes 15 minutes per
shift and employees are not compensated for this pre-shift
activity, which amounts to around one hour per workweek or $33.90
of overtime pay for Nelson.
Mr. Nelson subsequently filed the collective and class action,
asserting the following claims in the FAC: (1) failure to pay
overtime wages in violation of the Fair Labor Standards Act
("FLSA"); (2) failure to pay minimum wages in violation of the
Nevada Constitution; (3) failure to pay wages for all hours worked
in violation of Nevada Revised Statute ("NRS") Section 608.140 and
Section 608.016; (4) failure to pay overtime wages in violation of
NRS Section 608.140 and Section 608.018; and (5) failure to timely
pay all wages due and owing upon termination pursuant to NRS
Section 608.140 and Sections 608.020-608.050. The Defendant then
filed the Motion, requesting dismissal of the FAC under Rule
12(b)(6).
II. Discussion
Judge Du first addresses the Defendant's arguments that are
premised on the Nevada Supreme Court's ruling in Neville v. Eighth
Judicial District Court, 406 P.3d 499 (Nev. 2017). Defendant's
Neville arguments concern dismissal of Nelson's state-law claims
asserted under NRS Sections 608.140, 608.016, 608.018, and
608.020-608.050. Judge Du then examines the Defendant's non-Neville
claims, which include Nelson's minimum wage claim under the Nevada
Constitution, his claim for wages due upon termination under NRS
Section 608.140 and Sections 608.020-608.050 because Nelson is a
current employee, and his FLSA claim for unpaid pre-shift
activities in the Cold Section.
A. Neville Arguments for NRS Sections 608.140, 608.016, 608.018,
and 608.020-608.050
Most of the Defendant's Motion is predicated on its belief that the
Nevada Supreme Court erred in Neville. Accordingly, it argues that
the Court should deviate from Neville's holding and find that
Nelson does not have a private right of action under NRS Sections
608.140, 608.016, 608.018, 608.020-608.050. Nelson counters that
the Court should follow the holding in Neville, which expressly
found that Nevada employees have a private right of action to
recover unpaid wages under those statutes.
Judge Du agrees with Nelson. She declines to deviate from the
Nevada Supreme Court on a Nevada state-law issue. Because Nevada's
highest court, the "final arbiter," has already spoken on this
state-law issue, the Court is bound to follow Neville. The Nevada
Supreme Court also broadly held that "the Legislature intended to
create a private cause of action for unpaid wages pursuant to NRS
Section 608.140" and that "NRS Section 608.140 explicitly
recognizes a private cause of action for unpaid wages." For these
aforementioned reasons, Judge Du rejects the Defendant's arguments
and denies the Motion as to Nelson's claims under NRS Sections
608.140, 608.016, 608.018, and 608.020-608.050.
B. Minimum Wage Claim Under the Nevada Constitution
The Defendant next argues that the Court should dismiss Nelson's
claim under the Minimum Wage Amendment ("MWA") of the Nevada
Constitution because his hourly rate does not fall below the state
minimum. Nelson counters that he and similarly situated employees
did not receive any compensation for their pre-shift activities, in
violation of the MWA, and the Defendant's argument is incorrectly
premised on Nevada's adoption of FLSA's "workweek requirement" for
calculating the minimum wage.
Judge Du agrees with Nelson. She is unpersuaded that Nevada law
permits averaging unpaid overtime with compensated regularly
scheduled work to provide cover for employers who do not pay
minimum and overtime wages. She also finds that Nelson sufficiently
pled his minimum wage claim under the Nevada Constitution. Nelson
has pled enough facts in the FAC for the Court to draw a reasonable
inference that Defendant violated the MWA.
Accepting Nelson's allegations as true, and when viewed in
conjunction with MWA's broad protections and the Court's rejection
of the FLSA standard, Judge Du finds that Nelson has pled a
facially plausible claim that the Defendant's non-payment of the
pre-shift activities violates the Nevada Constitution. Nelson may
therefore proceed with his MWA minimum wage claim, and Judge Du
denies the Defendant's Motion as to this claim.
In the Motion, the Defendant also argues that the Court should
dismiss Nelson's claim under NRS Section 608.016 and NRS Section
608.140 because he "does not allege he is owed for unpaid, straight
time worked -- i.e., for work performed before he reached 40 hours
worked in a workweek." However, NRS Section 608.016 requires an
employer to pay an employee "wages for each hour the employee
works," and Nelson alleged that the Defendant failed to pay him and
other similarly situated employees for pre-shift activities that
exceeded their scheduled 40 hours per week. He also provided the
Court with his work hours for a given pay period and included
records of his paystubs as support of the non-compensation. Thus,
Nelson has sufficiently pled his NRS Section 608.016 claim.
C. Unpaid Wages Due Upon Termination Under NRS Sections
608.020-608.050
Nelson has not established that he or any of the three Opt-in
Plaintiffs have current standing to bring a claim under NRS
Sections 608.020-608.050. The Defendant argues, in part, that
dismissal of Nelson's claim under NRS Sections 608.020-608.050 is
appropriate because Nelson is still employed by the Defendant and
is not an appropriate class representative. Nelson counters, in
part, that the Court should not dismiss the claim in the interest
of judicial economy since "former employees will become part of the
case" once the Court "certifies the case as either a collective
action under the FLSA or a class action under FRCP 23."
Judge Du agrees with the Defendant. She explains that Sections
608.020 to 608.050 of the NRS address unpaid wages and compensation
for employees who resign, quit, or are terminated from their jobs,
and outline penalties for employers who fail to pay the former
employees upon their termination or discharge. However, Nelson, the
Party Plaintiff, and the three Opt-in Plaintiffs are all currently
employed by the Defendant. They accordingly do not have standing to
bring the claim on behalf of former employees and may not serve as
class representatives.
Since Nelson has failed to establish this "threshold issue" of
standing, Judge Du grants the Defendant's Motion as to the
Plaintiff's NRS Sections 608.020-608.050 claim and dismisses this
claim without prejudice. However, the Plaintiffs may seek amendment
if an appropriate class representative, who can properly represent
the former employees, joins the lawsuit.
D. Pre-Shift Cold Section Activities Under the FLSA
The Defendant finally contends that the FAC lacks "factual
allegations establishing that the donning of Cold Section PPE is
compensable under the FLSA" and Nelson's allegations are "merely a
recitation of the legal elements." Nelson counters that he
sufficiently pled the claim because he alleged that donning the PPE
is integral and indispensable to the job by "preventing workplace
illness and injury" and is therefore compensable.
Judge Du agrees with Nelson. Accepting Nelson's allegations as
true, Nelson has stated a plausible FLSA claim for the Cold Section
activities. In the FAC, Nelson sufficiently pled that donning the
PPE prior to his shift was integral and indispensable to working in
the freezer/refrigerator section of Defendant's warehouse because
the PPE "prevent[s] workplace illness and injury due to the cold
environment."
Moreover, the RefrigiWear clothing that employees wear is specially
and uniquely made for "helping cold storage employees stay warm and
protected in the cooler and freezer while they work." However,
according to Nelson, Cold Section employees are not compensated for
the time it takes to don the PPE, which amounts to around 15
minutes per shift.
In sum, Nelson has included sufficient factual allegations in the
FAC to state a facially plausible claim that donning the PPE is
compensable under the FLSA. Judge Du therefore permits Nelson's
FLSA Cold Section claim to proceed and denies the Defendant's
Motion as to this claim.
III. Conclusion
Judge Du notes that the parties made several arguments and cited to
several cases not discussed. She has reviewed these arguments and
cases and determines that they do not warrant discussion as they do
not affect the outcome of the issues before the Court.
Judge Du, therefore, granted in part and denied in part the
Defendant's Motion to Dismiss the Amended Complaint. She denied as
moot the Defendant's Motion to Dismiss the Original Complaint.
A full-text copy of the Court's Feb. 9, 2022 Order is available at
https://tinyurl.com/msy3dpb2 from Leagle.com.
WASTE CONNECTIONS: Scheduling Order & Pretrial Dates Amended
------------------------------------------------------------
In the class action lawsuit captioned as SUNSHINE CHILDREN'S
LEARNING CENTER, LLC, on behalf of itself and all others similarly
situated, v. WASTE CONNECTIONS OF FLORIDA, INC., Case No.
0:21-cv-62123-BB (S.D. Fla.), the Hon. Judge Beth Bloom entered an
order:
1. granting in part and denying in part the Joint Motion for
Extension of Time to Exchange Expert Reports Regarding Class
Certification filed on February 10, 2022; and
2. amending the scheduling order as follows:
-- Parties exchange expert witness April 14, 2022
summaries or reports on issues
of class certification:
-- Parties exchange rebuttal expert May 16, 2022
witness summaries or reports on
issues of class certification:
-- Deadline for completing class June 22, 2022
certification discovery:
-- Plaintiffs file motion for class July 6, 2022
certification:
-- Parties disclose experts and Sept. 6, 2022
exchange expert witness summaries
or reports:
-- Parties exchange rebuttal expert Sept. 20, 2022
witness summaries or reports:
-- All discovery, including expert Oct. 4, 2022
discovery, is completed:
-- Parties must have completed Oct. 18, 2022
mediation and filed a mediation
report:
-- All pre-trial motions, motions Oct. 26, 2022
in limine, and Daubert motions
(which include motions to strike
experts) are filed. This deadline
includes all dispositive motions:
-- Parties submit joint pre-trial Jan. 17, 2023
stipulation in accordance with Local
Rule 16.1(e), proposed jury
instructions and verdict form, or
proposed findings of fact and
conclusions of law, as applicable:
Waste Connections is located in Okahumpka, Florida and is part of
the waste treatment and disposal industry.
A copy of the Court's order dated Feb. 10, 2021 is available from
PacerMonitor.com at https://bit.ly/3HXrqAz at no extra charge.[CC]
WATERFIELD DESIGNS: Weekes Files ADA Suit in S.D. New York
----------------------------------------------------------
A class action lawsuit has been filed against Waterfield Designs,
Inc. The case is styled as Robert Weekes, individually, and on
behalf of all others similarly situated v. Waterfield Designs,
Inc., Case No. 1:22-cv-01284 (S.D.N.Y., Feb. 15, 2022).
The lawsuit is brought over alleged violation of the Americans with
Disabilities Act.
WaterField Designs -- http://www.sfbags.com/-- is an innovative SF
designer & manufacturer of bags & cases for the tech-savvy.[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
WENTZVILLE R-IV: Weekes Files Suit in E.D. Missouri
---------------------------------------------------
A class action lawsuit has been filed against Wentzville R-IV
School District. The case is styled as C.K.-W., a minor by and
through her parent T.K.; D.L., by and through his parent Z.L.;
individually and on behalf of those similarly situated v.
Wentzville R-IV School District, Case No. 4:22-cv-00191 (E.D. Mo.,
Feb. 15, 2022).
The nature of suit is stated as Other Civil Rights for the Civil
Rights Act.
Wentzville R-IV School District --
https://www.wentzville.k12.mo.us/ --- is a school district in
Wentzville, Missouri, United States.[BN]
The Plaintiffs are represented by:
Anthony E. Rothert, Esq.
AMERICAN CIVIL LIBERTIES UNION OF MISSOURI FOUNDATION
906 Olive St.. Suite 1130
St. Louis, MO 63101-1448
Phone: (314) 669-3420
Fax: (314) 652-3112
Email: trothert@aclu-mo.org
WILSON LOGISTICS: Ruff Wage-and-Hour Suit Goes to N.D. California
-----------------------------------------------------------------
The case styled BRIAN THOMAS RUFF, individually and on behalf of
all others similarly situated v. WILSON LOGISTICS, INC.; and DOES 1
through 10, inclusive, Case No. 21CV004428, was removed from the
Superior Court of the State of California, County of Alameda, to
the U.S. District Court for the Northern District of California on
February 17, 2022.
The Clerk of Court for the Northern District of California assigned
Case No. 3:22-cv-00988-SK to the proceeding.
The case arises from the Defendant's alleged violations of the
California Labor Code and the California's Business and Professions
Code including failure to pay minimum wages, failure to pay
overtime wages, failure to provide meal periods, failure to provide
rest breaks, failure to pay all wages upon termination, failure to
furnish accurate and itemized wage statements, failure to reimburse
all business expenses, and unlawful deduction of wages.
Wilson Logistics, Inc. is a family-owned trucking company, with its
principal place of business located in Springfield, Missouri. [BN]
The Defendant is represented by:
Kathleen C. Jeffries, Esq.
SCOPELITIS, GARVIN, LIGHT, HANSON & FEARY, LLP
2 North Lake Avenue, Suite 560
Pasadena, CA 91101-5671
Telephone: (626) 795-4700
Facsimile: (626) 795-4790
E-mail: kjeffries@scopelitis.com
- and –
Christopher J. Eckhart, Esq.
SCOPELITIS, GARVIN, LIGHT, HANSON & FEARY, P.C.
10 West Market Street, Suite 1400
Indianapolis, IN 46204
Telephone: (317) 637-1777
Facsimile: (317) 687-2414
E-mail: ceckhart@scopelitis.com
WORK WARM: Paguada Files ADA Suit in S.D. New York
--------------------------------------------------
A class action lawsuit has been filed against Work Warm, LLC. The
case is styled as Josue Paguada, on behalf of himself and all
others similarly situated v. Work Warm, LLC, Case No. 1:22-cv-01289
(S.D.N.Y., Feb. 15, 2022).
The lawsuit is brought over alleged violation of the Americans with
Disabilities Act.
Work Warm, LLC (trade name Aeris) is in the Family Clothing Stores
business.[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
WRIGHT STUFF: Hanyzkiewicz Files ADA Suit in E.D. New York
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A class action lawsuit has been filed against The Wright Stuff,
Inc. The case is styled as Marta Hanyzkiewicz, on behalf of herself
and all others similarly situated v. The Wright Stuff, Inc., Case
No. 1:22-cv-00843 (E.D.N.Y., Feb. 15, 2022).
The lawsuit is brought over alleged violation of the Americans with
Disabilities Act.
The Wright Stuff -- https://www.thewrightstuff.com/ -- provides
adapted utensils, assistive devices, gifts for the elderly,
seniors, disability aids, products for the handicapped, and lots of
adaptive daily living aids that help make life easier.[BN]
The Plaintiff is represented by:
Mark Rozenberg, Esq.
STEIN SAKS, PLLC
One University Plaza, Ste. 620
285 Passaic Street
Hackensack, NJ 07601
Phone: (201) 282-6500
Email: mrozenberg@steinsakslegal.com
[*] Class Action Lead Plaintiff Warns About Online Fraudsters
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Matthew Lapierre, writing for Regina Leader-Post, reports that the
lead plaintiff in a class-action lawsuit that successfully
persuaded an Ottawa judge to ban the sound of air horns in downtown
Ottawa for 10 days is being targeted by fraudsters online, one of
her lawyers said on Twitter.
In a tweet on Feb. 12, Emilie Taman, one of the lawyers who
represents the lead plaintiff, Zexi Li, shared a screenshot of a
Twitter account purportedly belonging to Li.
"This is the second fake Twitter account in the name of our client,
Zexi Li, that I have reported to Twitter in as many days," Tamman
wrote. "Please do not interact with or amplify these accounts. Zexi
is not on Twitter."
The account was still active on Feb. 12 and, while it did not seem
to be used for the purpose of asking people for money, Taman also
warned anyone who wanted to support Li and the class action lawsuit
to avoid online fundraisers on the crowdfunding site GoFundMe.
If people did want to support the class action lawsuit, they could
do so by donating on ottawafund.ca. "We are *not* associated with
any GoFundMe fundraisers," Taman wrote.
The money donated via the ottawafund site will go towards paying
for legal fees associated with the class action suit and other
expenses. The funds will be held by an "arm's length party to
ensure there are checks and balances in place for the disbursement
of the money," Tamman wrote.
"Please also know that we are reading all of your messages," Tamman
continued. "Many of you have sent your own difficult stories of how
you've been impacted. Know that we are listening and contemplating
ways in which we might expand the claim. Please stay tuned.
"Thank you also to those who are sending evidence in the form of
videos, screenshots and personal testimonials. We are grateful for
all of the ways in which the community is coming together to seek
accountability for the harm that has been caused to residents. Hang
in there, Ottawa."
Li is a 21-year-old downtown resident. The noise in her apartment
caused by the truck horns blaring downtown was measured at more
than 80 decibels, according to evidence presented in court.
While Li is the only one named in the class-action lawsuit, the
$9.8-million case is open to as many as 6,000 downtown residents
who live in or close to the demonstration's "red zone." [GN]
*********
S U B S C R I P T I O N I N F O R M A T I O N
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