/raid1/www/Hosts/bankrupt/CAR_Public/220405.mbx
C L A S S A C T I O N R E P O R T E R
Tuesday, April 5, 2022, Vol. 24, No. 62
Headlines
3M COMPANY: AFFF Products Can Cause Cancer, Wikes Suit Alleges
99 CENTS: Faces Aquino Suit Over Mismanagement of Retirement Plan
ABBOTT LABORATORIES: Infant Milk Contains Cronobacter, Suit Says
AGA SERVICE: Filing of Class Certification Bid Due August 5
ALASKA COMMUNICATIONS: Class Settlement in Peterson Wins Final Nod
ALL WAYS AUTO: Faces Class Action Over Lease Agreement Violations
ALLSTATE INDEM: Free Must File Class Cert. Bid by April 14
AMAZON.COM INC: Caudel Suit Moved From E.D. Cal. to W.D. Wash.
AMERICAN HONDA: Court Granted in Part Bid to Dismiss Browning Suit
APPLE INC: Orshan, et al., Seek to Certify Preinstall Subclass
AUTO-OWNERS INSURANCE: Seeks OK to File Two Exhibits Under Seal
AXIOM HEALTHCARE: Gordon Sues Over Healthcare Staff's Unpaid Wages
BAMIA 2: Johnson Wage-and-Hour Suit Removed to E.D. California
BANK OF AMERICA: Second Sched Order Entered in Philadelphia Suit
BAYER AG: Investors Balk With Roundup & Monsanto Class Action
BEASLEY LAW: Faces Class Action Over Alleged Ponzi Scheme
BECTON DICKINSON: 7th Cir. Affirms Dismissal of Marion Class Suit
BELL FLAVORS: Guzman BIPA Suit Removed to N.D. Illinois
BOOHOO.COM USA: Stipulation on Deposition Scheduling OK'd in Khan
CELSIUS HOLDINGS: Robbins Geller Reminds of May 16 Deadline
CG CONSULTING: Ousley Seeks to Certify Class Action
CHARLEYS PHILLY: Machuca Wage-and-Hour Suit Goes to E.D. California
CIG LOGISTICS: Mobley Seeks Proper Wages for Well Site Operators
CITIZENS BANK: Scheduling Order Entered in Chirchir Class Suit
COLLECTION BUREAU: Court Administratively Closes Rivera Case
COOK COUNTY, IL: Bid to Certify Class in Evans v. CCDOC Denied
CRITICAL TELEPHONE: CMP & Scheduling Order Entered in Tavarez
DELAWARE COUNTY, PA: Wins Summary Judgment v. Burford
DOCUSIGN INC: Faces Weston Securities Suit in California Court
DOORDASH INC: Yuquilema Wage-and-Hour Suit Removed to S.D.N.Y.
ENCLARITY INC: Fulton Seeks to File Opposition Reply Under Seal
ENOVIX CORP: Faces Prak Suit in California
FIRST TRANSIT: Fulton Wage-and-Hour Suit Goes to C.D. California
FLYWHEEL ENERGY: Seeks Extension to File Class Cert Bid Reply
FROM THE HEART: Fails to Pay Overtime Pay, Crooks Suit Alleges
FUNKO INC: Time for Class Cert Briefing Extended in Ferreira Suit
GENERAL MILLS: Faces Suit Over Mislabeled Frozen Cheese Pizza Rolls
GENERAL MOTORS: Class Certification Sought in Takata Airbag Suit
GILEAD SCIENCES: Bid to Dismiss Staley Class Action Tossed
GOVERNMENT EMPLOYEES: Court Certifies Claimants Class in Lewis Suit
GRAB HOLDINGS: Bernstein Liebhard Discloses Class Action Lawsuit
GREENE PASTURES: Faces Suit Over Violation of Real Property Tax Law
HNTB CORPORATION: Morel Labor Suit Removed to S.D. California
HOME CITY ICE: Court Certifies Class in Pansiera Suit
HOME DEPOT: Deadline to File Class Cert Bids Reset to July 21
HOMOLOGY MEDICINES: Pomerantz Law Discloses Class Action
I.C. SYSTEM: $11.8K in Attys.' Fees & Costs Awarded in Hancock Suit
INGRID & ISABEL: CMP & Sched Order Entered in Cruz Class Suit
INMAR INC: Court Denies Bid for Summary Judgment in Mr. Dee's Suit
JP MORGAN: Court Refuses to Certify Rule 23 Class in Nypl Suit
JUUL LABS: Bassett Unified Sues Over Deceptive E-Cigarette Ads
JUUL LABS: Causes Youth E-Cigarette Crisis, Solana Beach Claims
JUUL LABS: Causes Youth E-Cigarette Crisis, Teton School Suit Says
JUUL LABS: E-Cigarette Ads Target Youth, Alameda Unified Suit Says
JUUL LABS: E-Cigarette Ads Target Youth, Marlington Local Suit Says
JUUL LABS: Easton School Sues Over Deceptive E-Cigarette Ads
JUUL LABS: Faces Bliss School Suit Over Youth's E-Cigarette Ads
JUUL LABS: Faces Clayton Suit Over Youth E-Cigarette Epidemic
JUUL LABS: Faces South Summit Suit Over Youth E-Cigarette Epidemic
JUUL LABS: Manton Consolidated Sues Over Youth's E-Cigarette Crisis
JUUL LABS: Markets E-Cigarette to Youth, Juab School Suit Claims
JUUL LABS: Markets E-Cigarette to Youth, Manchester Community Says
JUUL LABS: Menominee Area Sues Over Youth's E-Cigarette Addiction
JUUL LABS: Minidoka School Sues Over Youth E-Cigarette Campaign
JUUL LABS: Ogdensburg City Sues Over E-Cigarette Crisis in N.Y.
JUUL LABS: Promotes E-Cigarette Use Among Youth, Weber School Says
JUUL LABS: River Valley Sues Over E-Cigarette's Risks to Youth
JUUL LABS: Silver Consolidated Sues Over E-Cigarette Crisis in N.M.
KELLER WILLIAMS: St. John Seeks Leave to File Confidential Info
KIRKLAND'S INC: Faces Miles Class Suit in California Court
KIRKLAND'S INC: Gennock Receipt Dispute Ongoing in Pennsylvania
LEXUS OF MANHATTAN: Watson Seeks to Certify TCPA Classes
LIDDLE & LIDDLE: Final OK of Class Settlement in Perchlak Sought
LINDSAY ENTERTAINMENT: Loses Bid to Decertify Class in Tassy Suit
LOUISIANA: $100-Million Settlement in Flooding Class Suit Reached
MAPLEBEAR INC: Court Grants Arbitration Bid in Levine Class Suit
MATTERPORT INC: Stemmelin Loses Bid for Class Certification
MAXUM INDEMNITY: Consolidation of Henry and Gaudet Suits Denied
MAYFIELD CONSUMER: Johnson Class Suit Removed to W.D. Kentucky
MCDONALD'S CORP: Food Contains Unsafe Chemicals, Clark Suit Says
MEDLINE INDUSTRIES: Ponce Labor Suit Removed to C.D. California
METROPOLITAN TOWER: Hearing on Class Cert Bid Reset to June 15
NATIONWIDE MUTUAL: Court Denies Bid to Dismiss Sweeney ERISA Suit
NEW HAMPSHIRE: Ct. Approves Discovery Plan in G.K. Suit
NEW YORK: Bid to Decertify Class Tossed in Betances Suit
NEXTGEN LEADS: Faces Weiss Suit Over Telephone Marketing Practices
NIELSEN HOLDINGS: Court Junks as Moot Gordon Bid to Certify Class
NIKE INC: Seeks to File Under Seal Portions of Class Cert. Bid
NORMANDY, MO: Davis Seeks Certification of Class Action
NOVARTIS: Direct Purchasers Seek to Certify Class
NUVE MIGUEL: Must File Opposition to Class Cert Bid by May 2
NYC HARLEM: Initial Approval of Settlement in Medina Sought
OAK PARK: Ricker Seeks Unpaid OT, Regular Wages Under FLSA, WWPCL
OBI SEAFOODS: Bid to Extend Deadlines Tossed without Prejudice
OBI SEAFOODS: Deadline to File Class Status Bid Extended to May 24
OMEGA HEALTHCARE: Setzer, Holtzman Seek to Certify Class
OPHTHOTECH CORP: Settlement in Micholle Suit Gets Initial Nod
PERKIOMEN VALLEY: Must File Bid to Dismiss Suit by April 12
RENT-A-DAUGHTER: Anderson Seeks Conditional Status of Collective
RIVIAN AUTOMOTIVE: Bernstein Liebhard Reminds of May 6 Deadline
ROBINHOOD MARKETS: Briefing Sched Entered in "Order Flow" Suit
ROSARIO LLC: Roman Seeks OT Wages for Restaurant Staff Under FLSA
RUSSELECTRIC INC: Sued Over Mismanagement of Retirement Fund
SAN FRANCISCO, CA: Class Cert Briefing Schedule Proposed in Pierce
SAN FRANCISCO: Johnson Labor Code Suit Removed to N.D. California
SC REALTY: Fails to Pay Proper Wages Under FLSA, AMWA, Pratt Says
SCRATCH SERVICES: Dicks FCRA Suit Removed to E.D. New York
SICHUAN GOURMET: Court Denies Bid to Dismiss SG II From Xiao Suit
SMILEDIRECTCLUB INC: Class Certification in Securities Suit Upheld
SNAP INC: Arbitrator to Decide Over Minor Suit's Contract Signing
ST. LOUIS, MO: Jones Suit Seeks to Certify Class & Subclass
ST. LOUIS, MO: Jones, et al., Seek Leave to File Instanter
STATE FARM: Faces Class-Action For Undervaluing Wrecked Cars
STATE FARM: Seeks Extension to Respond to Martino Class Cert Bid
STICKER MULE: Faces Valiente Suit Over Telephonic Sales Calls
SUEZ WATER: Nicholls MPWL Suit Removed to D. Massachusetts
TARGET CORP: New York Court Tosses Gordon's Amended Class Complaint
TELEFONAKTIEBOLAGET LM: CEO, CFO Sued Over Alleged Corruption
TIRAMISU RESTAURANT: Fails to Provide Overtime Wages, Mauricio Says
TOTALENERGIES SE: Court Junks Gas Trading Suit
TRANSWORLD SYSTEMS: Bid for Class Certification Stricken
TRI-W GLOBAL: Powell Suit Seeks OT Pay for Employees Under FLSA
TUPELO, MS: Court Tosses Edwards Bid for Reconsideration
UHS OF TUCSON: FAA Applies in Adams Class Suit, Ariz. App. Holds
UNITED STATES: HBA Seeks Deadline Extension to File Class Cert Bid
UNITED SURGICAL: Texas Court Grants Bid to Dismiss Perkins Suit
UNIVERSITY OF KENTUCKY: Niblock Bid for Class Status Partly Granted
UPFIELD US INC: Ledezma Sues Over Mislabeled Vegetable Oil Spread
VARIABLE ANNUITY: D.L. Markham ERISA Suit Transferred to S.D. Tex.
VERTIV HOLDINGS: Gainey McKenna Reminds of May 23 Deadline
VERTIV HOLDINGS: Robbins Geller Reminds of May 23 Deadline
VIACOMCBS INC: Court Resets Case Schedule in DeRosa Class Suit
VIVINT INC: Extension to File Class Cert Reply Sought
VIVINT INC: Seeks Denial of Cunningham Class Certification Bid
VIVINT SOLAR: Court Grants Dekker's Bid for Class Certification
VIVINT SOLAR: Summary Judgment Bid in Dekker Suit Granted in Part
VOLKSWAGEN GROUP: Faces Adamson Suit Over Antitrust Violation
VOYAGER 888: King, et al., File Bid for for Class Certification
WAL-MART ASSOCIATES: Seeks Extension to Oppose Class Cert Bid
WELCOME SKATEBOARDS: CMP & Scheduling Order Entered in Sanchez Suit
WOODS GOODS: CMP & Scheduling Order Entered in Cruz Suit
ZARBEE'S INC: Faces Class Action Over Deceptive Gripe Water
[*] Judge Rejects Class Counsel's Payout in Lithium Battery Suit
*********
3M COMPANY: AFFF Products Can Cause Cancer, Wikes Suit Alleges
--------------------------------------------------------------
WILLIE WIKES, individually and on behalf of all others similarly
situated, Plaintiff v. 3M COMPANY (f/k/a Minnesota Mining and
Manufacturing Company); ACG CHEMICALS AMERICAS INC.; AMEREX
CORPORATION; ARCHROMA U.S. INC.; ARKEMA, INC.; BUCKEYE FIRE
EQUIPMENT COMPANY; CARRIER GLOBAL CORPORATION; CHEMDESIGN PRODUCTS,
INC.; CHEMGUARD, INC.; CHEMICALS, INC.; CHEMOURS COMPANY FC, LLC;
CHUBB FIRE, LTD; CLARIANT CORP.; CORTEVA, INC.; DEEPWATER
CHEMICALS, INC.; DU PONT DE NEMOURS INC. (f/k/a DOWDUPONT INC.);
DYNAX CORPORATION; E.I. DU PONT DE NEMOURS AND COMPANY;
KIDDE-FENWAL, INC.; KIDDE PLC; NATION FORD CHEMICAL COMPANY;
NATIONAL FOAM, INC.; THE CHEMOURS COMPANY; TYCO FIRE PRODUCTS LP,
as successor-in-interest to The Ansul Company; UNITED TECHNOLOGIES
CORPORATION; UTC FIRE & SECURITY AMERICAS CORPORATION, INC. (f/k/a
GE Interlogix, Inc.), Defendants, Case No. 2:22-cv-00981-RMG
(D.S.C., March 25, 2022) is a class action against the Defendants
for negligence, battery, inadequate warning, design defect, strict
liability, fraudulent concealment, breach of express and implied
warranties, and wantonness.
According to the complaint, the Defendants have failed to use
reasonable and appropriate care in the design, manufacture,
labeling, warning, instruction, training, selling, marketing, and
distribution of aqueous film forming foam (AFFF) products
containing synthetic, toxic per- and polyfluoroalkyl substances
collectively known as PFAS. The Defendants' AFFF products are
dangerous to human health because PFAS are highly toxic and
carcinogenic chemicals and can accumulate in the blood and body of
exposed individuals. The Defendants have also failed to warn public
entities and firefighter trainees who they knew would foreseeably
come into contact with their AFFF products. The Plaintiff used the
Defendants' PFAS-containing AFFF products in their intended manner,
without significant change in the products' condition due to
inadequate warning about the products' danger. He relied on the
Defendants' instructions as to the proper handling of the products,
says the suit.
As a result of exposure to the Defendants' AFFF products, the
Plaintiff was diagnosed with prostate cancer and kidney cancer.
3M Company, f/k/a Minnesota Mining and Manufacturing Co., is a
multinational conglomerate corporation and designer, marketer,
developer, manufacturer, distributor of firefighting equipment,
including those with AFFF. It is located at 3M Center, St. Paul.
Minnesota.
ACG Chemicals Americas Inc. is a manufacturer of chemical products
based in Exton, Pennsylvania.
Amerex Corporation is a manufacturer of firefighting products based
in Trussville, Alabama.
Archroma U.S. Inc. is a global specialty chemicals company
headquartered in Charlotte, North Carolina.
Arkema, Inc. is a diversified chemicals manufacturer in North
America, based in King of Prussia, Pennsylvania.
Buckeye Fire Equipment Co. is a manufacturer of line of handheld
and wheeled fire extinguishers, suppressing foam concentrates &
hardware, and kitchen suppression systems, with principal place of
business located at 110 Kings Road, Mountain, North Carolina.
Carrier Global Corporation is a heating, ventilation, and air
conditioning company based in Palm Beach Gardens, Florida.
Chemdesign Products, Inc. is a chemical toll manufacturing company
based in Marinette, Wisconsin.
Chemguard, Inc. is a manufacturer of fire suppression and specialty
chemicals, including AFFF, with principal place of business located
at One Stanton Street, Marinette, Wisconsin.
Chemicals, Inc. is a chemical manufacturing company based in
Baytown, Texas.
Chemours Company FC, LLC is a manufacturer of titanium
technologies, fluoroproducts and chemical solutions based in
Wilmington, Delaware.
Chubb Fire, Ltd is a provider of security and fire protection
systems based in United Kingdom.
Clariant Corp. is a specialty chemical company based in Charlotte,
North Carolina.
Corteva, Inc. is an American agricultural chemical and seed company
based in Wilmington, Delaware.
Deepwater Chemicals, Inc. is a producer of organic and inorganic
iodine derivatives based in Woodward, Oklahoma.
Du Pont De Nemours Inc., f/k/a DowDuPont Inc., is a chemical
company based in Wilmington, Delaware.
Dynax Corporation is a company that specializes in the production
of fluorochemicals based in Pound Ridge, New York.
E.I Dupont De Nemours & Co. is a provider of agriculture and
specialty products with principal place of business at 1007 Market
Street, Wilmington, Delaware.
Kidde-Fenwal, Inc. is a manufacturer of fire protection systems
based in Ashland, Massachusetts.
Kidde PLC is a manufacturer of fire safety products based in
Mebane, North Carolina.
Nation Ford Chemical Company is a manufacturer of specialty organic
chemicals based in Fort Mill, South Carolina.
National Foam, Inc. is a manufacturer of foam concentrate, foam
proportioning systems, fixed and portable foam firefighting
equipment, with principal place of business located at 350 East
Union Street, West Chester, Pennsylvania.
The Chemours Company is a manufacturer of agricultural chemicals
with principal place of business at 1007 Market Street, Wilmington,
Delaware.
Tyco Fire Products L.P., successor-in-interest to The Ansul
Company, is a manufacturer of water-based fire suppression system
components and ancillary building construction products, including
Ansul brand of AFFF, headquartered at One Stanton Street,
Marinette, Wisconsin.
United Technologies Corporation was an American multinational
conglomerate headquartered in Farmington, Connecticut. It merged
with the Raytheon Company in April 2020 to form Raytheon
Technologies.
UTC Fire & Security Americas Corporation, Inc., f/k/a GE
Interlogix, Inc., is a manufacturer of security and fire control
systems based in Bradenton, Florida. [BN]
The Plaintiff is represented by:
Gregory A. Cade, Esq.
Gary A. Anderson, Esq.
Kevin B. McKie, Esq.
ENVIRONMENTAL LITIGATION GROUP, P.C.
2160 Highland Avenue South
Birmingham, AL 35205
Telephone: (205) 328-9200
Facsimile: (205) 328-9456
- and –
Richard Zgoda, Jr., Esq.
Steven D. Gacovino, Esq.
GACOVINO, LAKE & ASSOCIATES, P.C.
270 West Main Street
Sayville, NY 11782
Telephone: (631) 600-0000
Facsimile: (631) 543-5450
99 CENTS: Faces Aquino Suit Over Mismanagement of Retirement Plan
-----------------------------------------------------------------
SALVADOR AQUINO; SUSAN FORD; MONICALAYLE GARCIA; BARBARA KRAUS;
MARTHA LOPEZ; FRANCISCO MARTINEZ; and MEGAN SARGENT, individually
and on behalf of all others similarly situated, Plaintiffs v. 99
CENTS ONLY STORES LLC; and THE RETIREMENT COMMITTEE OF THE 99 CENTS
ONLY 401(K) PLAN, Defendants, Case No. 2:22-cv-01966 (C.D. Cal.,
Mar. 25, 2022) alleges violation of the Employee Retirement Income
Security Act of 1974.
The Plaintiff alleges in the complaint that the Defendants chose to
accept the benefits of federal and state tax deferrals for their
employees via a 401(k) plan, and the owners and executives of the
Defendants organizations have benefitted financially for years from
the same tax benefits. However, the Defendants have not followed
ERISA's standard of care.
The Plaintiffs were injured by the Defendants' lack of loyalty,
lack of skill, flawed processes and imprudent decisions in breach
of their fiduciary duties: (1) the Defendants offered the
Plaintiffs, and the Plaintiffs invested in, higher cost fund shares
when otherwise identical lower cost shares were available which
caused participants diminished investment returns in their 401(k)
accounts; (2) the Defendants permitted the Plaintiffs and other
Plan participants to be charged excessive service fees, which
reduced participants' Plan account balances and caused them
diminished investment returns; and (3) the Defendants chose and
continually offered the Plaintiffs, conflicted, expensive,
proprietary target date funds, which also served as the default
investment as opposed to a myriad of other lower cost,
unconflicted, prudent options the Defendant's choices harmed
participants or beneficiaries by reducing their Plan account
balances through high fees and diminished investment returns, says
the suit.
99 CENTS ONLY STORES LLC retails consumable and general
merchandise. The Company offers groceries, pet care, gifts, health
and beauty, clothing, eyewear, household, hardware, automotive
accessories, catering supplies, office, garden, cleaning, and other
related products. 99 Cents Only Stores serves customers in the
United States.
The Plaintiff is represented by:
Christina A. Humphrey, Esq.
CHRISTINA HUMPHREY LAW, P.C.
591 Telegraph Canyon Rd, #376
Chula Vista, CA 91910
Telephone: (805) 618-2924
Facsimile: (805) 618-2939
Email: christina@chumphreylaw.com
-and-
James A. Clark, Esq.
Renee P. Ortega, Esq.
TOWER LEGAL GROUP, P.C.
11335 Gold Express Drive, Ste. 105
Gold River, CA 95670
Telephone: (916) 361-6009
Facsimile: (916) 361-6019
Email: james.clark@towerlegalgroup.com
renee.parras@towerlegalgroup.com
ABBOTT LABORATORIES: Infant Milk Contains Cronobacter, Suit Says
----------------------------------------------------------------
ARTURO ANDALUZ, individually and on behalf of all others similarly
situated, Plaintiff v. ABBOTT LABORATORIES, INC. d/b/a ABBOTT
NUTRITION, Defendant, Case No. 2:22-cv-02001 (C.D., Cal., Mar. 25,
2022) is a class action lawsuit by the Plaintiff alleging that
Similac, Alimentum, and EleCare Infant formula manufactured, sold
and distributed by the Defendant ("Products") contains Cronobacter
sakazakii.
The Plaintiff asserts in the complaint that the presence of
Cronobacter sakazakii in Defendant's Similac, Alimentum, and
EleCare products was not disclosed in the products' label, in
violation of state and federal law.
The Plaintiff was unaware that the Defendant's Similac, Alimentum,
and EleCare products may be adulterated with cronobacter sakazakii.
The Plaintiff purchased the Defendant's products on the assumption
that the labeling of the Defendant's products were accurate and
that the products were unadulterated, safe and effective. The
Plaintiff would not have purchased the Defendant's Similac,
Alimentum, and EleCare products had he known there was a risk the
products may contain Cronobacter sakazakii.
As a result, the Plaintiff allegedly suffered injury in fact when
he spent money to purchase products, he would not otherwise have
purchased absent the Defendant's misconduct, as alleged herein.
ABBOTT LABORATORIES INTERNATIONAL CO. was founded in 1946. The
company's line of business includes the wholesale distribution of
surgical and other medical instruments, apparatus, and equipment.
[BN]
The Plaintiff is represented by:
Marcus J. Bradley, Esq.
Kiley L. Grombacher, Esq.
Lirit A. King, Esq.
BRADLEY/GROMBACHER, LLP
31365 Oak Crest Dr., Suite 240
Westlake Village, CA 91361
Telephone: (805) 270-7100
Facsimile: (805) 270-7589
Email: mbradley@bradleygrombacher.com
kgrombacher@bradleygrombacher.com
lking@bradleygrombacher.com
- and -
Sin-Ting Mary Liu, Esq.
E. Samuel Geisler, Esq.
Caitlyn Prichard Miller, Esq.
AYLSTOCK WITKIN KREIS & OVERHOLTZ, PLLC
17 East Main Street, Suite 200
Pensacola, FL 32502
Telephone: (850) 202-1010
Facsimile: (850) 916-7449
Email: mliu@awkolaw.com
sgeisler@awkolaw.com
cmiller@awkolaw.com
AGA SERVICE: Filing of Class Certification Bid Due August 5
-----------------------------------------------------------
In the class action lawsuit captioned as ADAM ELGINDY and JULIANNE
CHUANROONG, on behalf of themselves, the general public, and those
similarly situated, v. AGA SERVICE COMPANY (d/b/a ALLIANZ GLOBAL
ASSISTANCE), JEFFERSON INSURANCE COMPANY, and BCS INSURANCE
COMPANY, Case No. 4:20-cv-06304-JST (N.D. Cal.), the Hon. Judge Jon
S. Tigar entered an order regarding schedule for class
certification motion as follows:
Current Date New Date
Further case management March 30, 2022 May 11, 2022
statement due
Further CMC April 1, 2022 May 13, 2022
Class certification May 6, 2022 Aug. 5, 2022
motion due:
Class certification July 15, 2022 Oct. 14, 2022
opposition due:
A copy of the Court's order dated March 16, 2022 is available from
PacerMonitor.com at https://bit.ly/3DzRZdH at no extra charge.[CC]
The Plaintiffs are represented by:
Seth A. Safier, Esq.
Stephen M. Raab, Esq.
GUTRIDE SAFIER LLP
100 Pine Street, Suite 1250
San Francisco, CA 94111
Telephone: (415) 336-6545
Facsimile: (415) 449-6469
E-mail: stephen@gutridesafier.com
The Defendants are represented by:
Gayle I. Jenkins, Esq.
Elizabeth J. Ireland, Esq.
Janelle A. Li-A-Ping, Esq.
WINSTON & STRAWN LLP
333 S. Grand Avenue
Los Angeles, CA 90071-1543
Telephone: (213) 615-1700
Facsimile: (213) 615-1750
E-mail: gjenkins@winston.com
eireland@winston.com
jliaping@winston.com
ALASKA COMMUNICATIONS: Class Settlement in Peterson Wins Final Nod
------------------------------------------------------------------
In the class action lawsuit captioned as LAURA LEE PETERSON,
Individually and on Behalf of All Others Similarly Situated, v.
ALASKA COMMUNICATIONS SYSTEMS GROUP, INC. AND ALASKA COMMUNICATIONS
SYSTEMS HOLDINGS, INC., d/b/a ALASKA COMMUNICATIONS, Case No.
3:12-cv-00090-TMB-MMS (D. Ala.), the Hon. Judge Timothy M. Burgess
entered an order:
1. granting in their entirety the Plaintiffs' Motion for
Final Approval of the Class Settlement and Plaintiffs'
Motion for Attorneys' Fees and Costs; and
2. approving the Settlement Agreement as fair, reasonable,
and adequate pursuant to Federal Rule of Civil Procedure
23(e) and as meeting the applicable standards for
settlement under the Fair Labor Standards Act (FLSA).
Upon the Effective Date of the Settlement, the Settlement Class
Members will fully release and discharge the Released Parties from
the Released Claims, as defined below:
"Released Claims" means the following: Any and all claims
that were or could have been pled in the Complaint under
state or federal wage and hour laws (including without
limitation, the Alaska Wage and Hour Act and the FLSA),
arising out of the same transactions, series of connected
transactions, occurrences, or nucleus of operative facts
that form the basis of the claims that were alleged in the
Complaint, including without limitation, any claims that
Settlement Class Members were not paid overtime when working
greater than eight hours in a day or 40 hours in a week for
ACS, as well as all derivative claims for pre-judgment and
post-judgment interest, penalties, liquidated damages, and
attorneys' fees and costs.
However, "Released Claims" does not include or cover claims
relating to any actions or omissions occurring after the
Preliminary Approval Date.
The Court enters final judgment on the Class Claims in
accordance with the terms of the Settlement and this Order,
and the entire Lawsuit is dismissed with prejudice and
without costs to any Party. 103 By virtue of this Order, all
Settlement Class Members, including Class Representatives
Peterson and Shephard, are bound by the Settlement Agreement
and permanently barred from prosecuting Released Claims
against any of the Released Parties, as those terms are
defined in the Settlement and this Order.
A copy of the Court's order dated March 15, 2022 is available from
PacerMonitor.com at https://bit.ly/3tT4f5D at no extra charge.[CC]
ALL WAYS AUTO: Faces Class Action Over Lease Agreement Violations
-----------------------------------------------------------------
Christina Heath at madisonrecord.com reports that a truck driver
claims his employer made deductions from his paycheck without
providing any reasoning for the withdrawals.
Herbert Bryant III filed a federal class action lawsuit in the
Northern District Court of Illinois before it was transferred to
the U.S. District Court for the Southern District of Illinois. The
lawsuit was filed against All Ways Auto Transport LLC, doing
business as AW Transport, and Does 1-100, alleging violation of the
Truth in Leasing Act and Truth in Leasing Regulation, breach of
contract and breach of contract of good faith and fair dealing.
According to the lawsuit, Bryant applied for a truck driving
position with the defendant. He claims an advertisement promised
truck drivers a $2,000 down payment on a truck lease followed by
driving assignments that would pay 85percent of the gross load
receipts for each trip. Upon being hired, Bryant picked up a 2013
Volvo truck from Bush Truck Leasing, Inc. The lease for the truck
required an initial payment of $2,500, plus weekly payments of
$704.30. Bryant claims the truck had repeated mechanical failures
and was submitted to various repair locations for maintenance.
According to the agreement with the defendant, bills would be sent
directly to the defendant and the amounts would be deducted from
Bryant's account. Bryant claims he made numerous requests for
itemized invoices of repairs in payments, but the defendant
allegedly failed to provide such information.
In October 2018, Bryant entered into a second lease agreement for a
2015 International Conventional Sleeper to drive for work due to
continuing mechanical failures of the Volvo. Bryant claims the
defendant would regularly deduct approximately $388.05 from his
payment without providing any reasoning for the deductions. Bryant
claims the defendant took the deductions from all class members'
accounts and therefore violated the Truth in Leasing Act and Truth
in Leasing Regulation Acts.
Bryant seeks compensatory damages and restitution of all monies due
including the value of unlawfully covered trips and disgorged
profits from unfair and unlawful business practices. He also seeks
preliminary and permanent injunction of the defendant for alleged
violations, actual and statutory damages, pre-judgment interest,
declaratory relief, court costs and reasonable attorneys fees.
Bryant is represented by Katrina Carroll of Lynch Carpenter LLP in
Chicago.
U.S. District Court for the Southern District case number
3:22-cv-00279-SMY [GN]
ALLSTATE INDEM: Free Must File Class Cert. Bid by April 14
----------------------------------------------------------
In the class action lawsuit captioned as DAPHNE NOBLE FREE, v.
ALLSTATE INDEM. CO., Case No. 9:20-cv-00190-MJT (E.D. Tex.), the
Hon. Judge Michael J. Truncale entered a third amended scheduling
order as follows:
-- The Plaintiff shall file her April 14, 2022
motion for class certification,
supporting brief and all evidence
in support of class certification
by:
-- The Defendant shall file its May 13, 2022
OPPOSITION to class certification
and all evidence in opposition
to class certification by:
-- The Plaintiff shall file a Reply May 27, 2022
brief in support of class
certification by:
-- Any Daubert motions should be April 11, 2022
filed by this date:
-- Responses to any Daubert May 16, 2022
motions should be filed by:
-- Replies to any Daubert motions May 30, 2022
should be filed by:
-- Pre-class certification June 17, 2022
conference:
-- Lists of witnesses and exhibits June 30, 2022
to be used at the Class
Certification:
-- Hearing on class certification: July 14, 2022
A copy of the Court's order dated March 15, 2022 is available from
PacerMonitor.com at https://bit.ly/3LrXwWe at no extra charge.[CC]
AMAZON.COM INC: Caudel Suit Moved From E.D. Cal. to W.D. Wash.
--------------------------------------------------------------
The case styled AMANDA CAUDEL, individually and on behalf of all
others similarly situated v. AMAZON.COM, INC., Case No.
2:20-cv-00848-KJM-KJN, was transferred from the U.S. District Court
for the Eastern District of California to the U.S. District Court
for the Western District of Washington on March 28, 2022.
The Clerk of Court for the Western District of Washington assigned
Case No. 2:22-cv-00401-RSM to the proceeding.
The case arises from the Defendant's alleged violations of the
California's Consumers Legal Remedies Act, the California's False
Advertising Law, and the California's Unfair Competition Law by
engaging in false, deceptive and misleading advertising and
marketing of its video content services.
Amazon.com, Inc. is an American online retailer, with its principal
place of business in Seattle, Washington. [BN]
The Plaintiff is represented by:
Michael R. Reese, Esq.
Carlos F. Ramirez, Esq.
REESE LLP
100 West 93rd Street, 16th Floor
New York, NY 10025
Telephone: (212) 643-0500
E-mail: mreese@reesellp.com
cramirez@reesellp.com
- and –
George V. Granade, Esq.
REESE LLP
8484 Wilshire Boulevard, Suite 515
Los Angeles, CA 90211
Telephone: (310) 393-0070
E-mail: ggranade@reesellp.com
- and –
Spencer Sheehan, Esq.
SHEEHAN & ASSOCIATES, P.C.
505 Northern Blvd., Ste. 311
Great Neck, NY 11021-5101
Telephone: (516) 303-0552
E-mail: spencer@spencersheehan.com
AMERICAN HONDA: Court Granted in Part Bid to Dismiss Browning Suit
------------------------------------------------------------------
In the case, RONDA ANN BROWNING, et al., Plaintiffs v. AMERICAN
HONDA MOTOR CO., INC., et al., Defendants, Case No. 20-cv-05417-BLF
(N.D. Cal.), Judge Beth Labson Freeman of the U.S. District Court
for the Northern District of California, San Jose Division, granted
in part with leave to amend and denied in part Defendant Honda's
motion to dismiss the Second Amended Complaint.
I. Introduction
In the putative class action, the Plaintiffs allege two defects in
their 2018-2019 Honda Odyssey vehicles, which are equipped with a
9-speed automatic transmission called the ZF 9HP Automatic
Transmission. The Plaintiffs allege that the Transmission (1) has
two modules in its software that fail to communicate properly and
(2) torn sealing gaskets that occur during assembly. These defects,
Plaintiffs claim, cause "rough and delayed shifting, loud noises
during shifting, harsh engagement of gears, sudden and harsh
accelerations and decelerations, and sudden loss of power."
Eight named Plaintiffs seek to represent a nationwide class and
seven subclasses, each of which asserts implied warranty, express
warranty, and state consumer protection claims.
Before the Court is Defendant American Honda's motion to dismiss
the Second Amended Complaint ("SAC") on multiple grounds. The
Plaintiffs oppose the motion, and the Court held oral argument on
Feb. 3, 2022.
II. Background
As alleged in the SAC, and accepted as true for the purposes of
this motion, Honda designs, manufacturers, markets, distributes,
sells, and services the Honda Odyssey vehicle. The Plaintiffs
allege that in 2014, Honda began equipping certain of its vehicles
with a 9-speed automatic transmission called the ZF 9HP Automatic
Transmission. The Transmission uses a unique 9.8 ratio spread and
computer-controlled shifting that were marketed as a significant
technological advancement from previous transmissions. The
different ratio spread ideally allows for shorter shifts between
gears, keeping the engine in a narrow, optimal band of RPMs for as
long as possible, and borrows some characteristics of manual
transmissions, such as "dog clutches," enabling greater fuel
efficiency.
The Plaintiffs allege, however, that the Transmission suffers from
two defects. First, they allege that "the transmission end cover
sealing gasket was damaged during the manufacturing, assembly,
and/or installing process" in the Odyssey vehicles (the "Sealing
Gasket Defect"). Because of the damaged sealing gasket, the
Transmission is not properly sealed and thus leaks fluid. The leak
results in insufficient transmission fluid, which causes the
Transmission to fail to maintain necessary hydraulic pressure or
properly lubricated parts. This results in gear slippage,
difficulty switching gears, lurching, excess noise from the
Transmission, a burning smell, and even transmission failure.
Second, the Plaintiffs allege that "there is improper design and/or
calibration of the software in control of the Transmission,
including the Transmission Control Module and the Powertrain
Control Module" in the Odyssey vehicles (the "Software Calibration
Defect"). The Transmission Control Module and the Powertrain
Control Module control the function of the transmission and its
interaction with the engine. While the Transmission may be
delivered by a component manufacture with software already
programmed, Honda must ensure that the software is properly
calibrated to function in its own vehicles. The Plaintiffs allege
that Honda has failed to do this properly, resulting in mistimed
gear shifting. Id. This causes a rough, delayed, or sudden failure
to shift; grinding or other loud noises during shifting; harsh
engagement of gears; sudden or harsh accelerations or
decelerations; and sudden loss of power
Plaintiffs Ronda Ann Browning, Divina Pappas, Brian Pappas, Kali
Wescott, Eric Wescott, Tony Boatwright, Chuen Yong, and Daniel Pina
each purchased a Honda Odyssey vehicle in the model years 2018 or
2019.
Based on their allegations, the Plaintiffs have filed suit against
Honda asserting claims for breach of implied warranty (Florida,
Ohio, South Carolina, Texas, California), breach of express
warranty (South Carolina, Texas, California), violation of state
consumer protection statutes (Florida, Ohio, Texas, California),
and fraud by omission/fraudulent concealment (no state law
specified). Each claim is brought by the Plaintiff or the
Plaintiffs in that respective state.
The Plaintiffs further seek to represent a nationwide class of
individuals who purchased 2018-2019 Honda Odyssey vehicles equipped
with the Transmission. Each Plaintiff (or couple of Plaintiffs)
seeks to represent a subclass in their individual state, with Pina
seeking to represent both a California subclass and a Consumer
Legal Remedies Act ("CLRA") subclass.
III. Discussion
Honda's motion raises a panoply of issues with the Plaintiffs'
pleading, some of which apply generally to all claims and others
that apply only to specific Plaintiffs or states' laws.
A. Adequacy of Defect Allegations
Honda first argues that the Plaintiffs do not adequately plead
facts to allege defects in their vehicles.
Judge Freeman will not penalize the Plaintiffs for asserting
similar allegations in multiple cases against the same
manufacturer. Of course, it will be up to the Plaintiffs to
actually prove those defects exist in their vehicles. She finds
that there are no allegations that any Plaintiff actually has a
vehicle that experienced the Sealing Gasket Defect. This means that
no Plaintiff has suffered an "injury in fact" as to the Sealing
Gasket Defect. Without such an alleged injury, these Plaintiffs
cannot go forward on the claims as to this defect.
At the hearing, Judge Freeman discussed with the parties whether
she should give leave to amend on this issue. Because she is
granting the Plaintiffs leave to amend on some of their statutory
fraud claims, Judge Freeman will grant the Plaintiffs leave to
amend on the Sealing Gasket Defect.
Accordingly, Honda's motion to dismiss based on the Plaintiffs'
inadequate pleading of the Sealing Gasket Defect is granted with
leave to amend. Leave to amend is limited to adding allegations
that the vehicle of one or more of the Plaintiffs experienced the
Sealing Gasket Defect. If the Plaintiffs cannot so allege, they
must remove allegations regarding this defect from their amended
complaint.
B. Implied Warranty Claims
Honda next challenges the Plaintiffs' breach of implied warranty
claims. It makes one argument that applies to all of the implied
warranty claims and three arguments that apply only to the Florida,
Ohio, and Texas claims. Judge Freeman considers the general
argument first before examining the Florida, Ohio, and Texas
claims.
i. Merchantability Allegations
Judge Freeman finds that the Court has already found that the
Plaintiffs have adequately alleged a defect, and she sees no reason
to depart from its previous conclusion. The Plaintiffs' allegations
regarding the results of the alleged defects prevent the
conclusion, as a matter of law, that the vehicles were "safe,
reliable transportation." Because she cannot conclude as a matter
of law that the Plaintiffs' vehicles were merchantable if their
allegations are true, Judge Freeman denies the motion to dismiss
the breach of implied warranty claims on this ground.
ii. Florida - Claim 2
The second claim in the SAC -- asserted by Plaintiff Browning -- is
for breach of implied warranty under Florida law. As Honda argues,
the Court previously dismissed this claim without leave to amend
due to the lack of privity between her and Honda. This claim cannot
be reasserted, so Honda's motion to dismiss the claim is granted
without leave to amend.
iii. Ohio - Claim 4
The Pappases assert the fourth claim in the SAC for breach of the
implied warranty of merchantability under Ohio law. Honda argues
that, as the Court agreed in the previous motion to dismiss, the
Court should dismiss this claim for lack of privity between Honda
and the Plaintiffs, who purchased their vehicles from authorized
dealers. Honda argues that the additional allegations the
Plaintiffs have added regarding the existence of the express
warranty and agency or third-party beneficiary relationships do not
change the previous decision the Court reached. The Plaintiffs
argue that those two sets of allegations and their reliance on
Honda's advertisements negate the need to show privity.
Judge Freeman holds that the Plaintiffs have not sufficiently
alleged privity between the Pappases and Honda under Ohio law.
Because she identified this deficiency in the order on the prior
motion to dismiss, Judge Freeman granted without leave to amend the
instant motion to dismiss the Ohio claim for breach of implied
warranty.
iv. Texas - Claim 9
Yong asserts the ninth claim in the SAC for breach of implied
warranty under Texas law. The Court previously dismissed the claim
with leave to amend for failure to allege pre-suit notice. Honda
argues that Yong has still failed to plead that he made proper
pre-suit notice. The Plaintiffs argue that Yong satisfied pre-suit
notice when he (1) brought his vehicle to the dealership and
complained of the defects, and (2) sent a pre-suit notice letter
under Texas law on Dec. 12, 2020, eight months before filing the
SAC.
Judge Freeman finds that Yong's allegations do not satisfy the
pre-suit notice requirement under Texas law. The allegations that
Yong points to as satisfying the pre-suit notice requirement -- his
visit to the dealership and his pre-suit notice letter sent three
days before he joined this case as a plaintiff -- are the same ones
as were in the First Amended Complaint, which the Court found
insufficient to satisfy the requirement.
Judge Freeman concludes that Yong has thus failed to adequately
allege pre-suit notice as required under Texas law. Because this
defect was also identified in the prior order, the motion to
dismiss the claim for breach of implied warranty under Texas law
will be granted without leave to amend.
C. Express Warranty Claims
Honda next challenges the adequacy of the Plaintiffs' pleading for
their claims for breach of express warranty. Judge Freeman
considers Honda's three arguments in turn: Dirst, that the claim
for breach of express warranty under Texas law fails to lack of
pre-suit notice; second, that the Software Calibration Defect is
actually a design defect that is not covered by the express
warranty at issue; and third, that the Plaintiffs have not pled
facts demonstrating a refusal to repair.
i. Texas - Claim 9
The ninth claim in the SAC is for breach of express warranty under
Texas law. This claim also required Yong to provide Honda with
pre-suit notice. he Court has already found Yong's allegations of
pre-suit notice insufficient for his breach of implied warranty
claim. That analysis applies equally here. Because Yong has not
adequately alleged pre-suit notice, as the Court's prior order
required, the motion to dismiss the Texas claim for breach of
express warranty is graned without leave to amend.
ii. Software Calibration Defect
Honda argues that the Software Calibration Defect, which Plaintiffs
assert is a manufacturing defect, is actually a design defect.
Judge Freeman finds that the Plaintiffs have plausibly pled that
the Software Calibration Defect is a manufacturing defect, and thus
denies Honda's motion to dismiss on this ground. The Plaintiffs are
on notice that if discovery reveals that this defect exists due to
the Odyssey's specifications, it will be a design defect for which
they cannot sustain a breach of express warranty claim.
iii. Refusal to Repair Allegations
Honda's next argument against the Plaintiffs' breach of express
warranty claim is that they have not adequately pled a refusal to
repair. This argument is of two parts. First, Honda says that
Boatwright has not adequately alleged a refusal to repair because
he only brought his vehicle into the dealer one time. Second, Honda
says that Boatwright, Yong, and Pina have not pled a refusal to
repair because they do not plead that the dealers identified a
problem and refused to repair it. The Plaintiffs counter by
defending the sufficiency of their allegations.
Judge Freeman agrees with Honda, and has already held, that more
than one presentation to the dealer is required to plead a refusal
to repair. She however, disagrees with Honda's argument that a
dealership does not "refuse" to repair a vehicle when it does not
identify a problem. It would be too easy to avoid warranty claims
if a dealer could merely deny that it identified a problem even if
there were symptoms of it.
Accordingly, Honda's motion to dismiss Boatwright's breach of
express warranty claim is granted without leave to amend. Honda's
motion to dismiss Yong and Pina's breach of express warranty claims
is denied.
D. Consumer Protection Claims
The Plaintiffs assert four claims under the consumer protection
statutes in Florida, Ohio, Texas, and California. Honda moves to
dismiss these claims on several grounds. One of those arguments is
specific to the Ohio claim and the others apply to all of the
consumer protection claims.
i. Ohio - Claim 3
Judge Freeman first addresses Honda's argument that is specific to
the Ohio consumer protection claim. Honda argues that the Ohio
claim is untimely because the Ohio statute has a strict two-year
statute of limitations. Because the Pappases bought their Odyssey
more than two years before filing suit, the claim is time-barred,
Honda says. The Plaintiffs respond that the Ohio statute is
triggered by the occurrence of a violation, not the date of a
"consumer transaction" as defined under the statute.
Judge Freeman agrees with Honda. She holds that the Plaintiffs
provide no Ohio case authority for the proposition that a repair
visit over one year after the transaction at issue -- the Pappases
purchase of their Odyssey -- is fairly characterized as "in
connection" with that transaction. She declines to stretch the Ohio
statute and the "absolute" statute of limitations without such
authority. The claim is thus barred by the statute of limitations,
and Honda's motion to dismiss the claim is granted without leave to
amend.
ii. Rule 9(b)
Honda's other arguments against the consumer protection claims come
under the umbrella of Rule 9(b). Claims of fraud must be
accompanied by the "who, what, when, where, and how" of the
misconduct alleged.
The parties agree that all of the consumer protection claims are
subject to Rule 9(b). With that legal standard in mind, Judge
Freeman proceeds to analyze Honda's arguments. He holds that (i)
the Plaintiffs have alleged sufficient facts about each Defendant
for purposes of Rule 9(b); and (ii) the Plaintiffs have satisfied
Rule 9(b) with respect to specificity of their omissions
allegations; (iii) the Plaintiffs' allegations about TSBs that
purportedly relate to the Software Calibration Defect are not
adequately pled at present; and (iv) the Plaintiffs have not
provided factual allegations to support their conclusory statements
that Honda "actively concealed and failed to disclose the
Defects."
In sum, Judge Freeman concludes that while the Plaintiffs have not
provided plausible allegations establishing Honda's pre-sale
knowledge or Honda's active concealment, she finds that leave to
amend is warranted. The Plaintiffs may be able to address some of
these defects with amendment, and so the Court cannot say that
leave to amend would be futile. Given that this is the Court's
first detailed analysis of the various bases the Plaintiffs assert
for Honda's duty to disclose, the Plaintiffs will be given leave to
amend.
Honda's motion to dismiss the Plaintiffs' consumer protection
claims is granted with leave to amend, with the exception of the
motion to dismiss the claim under Ohio's consumer protection
statute, which is granted without leave to amend.
E. Fraud Claim and the Ohio and Michigan Plaintiffs and Subclasses
Finally, Judge Freeman addresses two other arguments Honda makes as
to specific claims and the Plaintiffs. First, the Plaintiffs for
the first time in their Second Amended Complaint assert a common
law claim for "fraud by omission and/or fraudulent concealment."
Honda argues that this claim must be dismissed because the Court's
previous order restricted amendments to "the existing claims of the
current parties."
The Plaintiffs do not respond to this argument. While Honda also
makes substantive arguments against the fraud claim, Judge Freeman
need not reach them because it agrees that adding the fraud claim
exceeded the scope of permissible amendment as specified in the
previous order. Accordingly, the common law fraud claim is
dismissed as improperly added to the Second Amended Complaint.
Second, Honda argues that because Michigan plaintiffs Kali and Eric
Wescott no longer assert claims, they should be dismissed from the
case and the Michigan subclass stricken. The Plaintiffs also do not
respond to this argument. Judge Freeman agrees with Honda that both
Wescotts should be dismissed and the Michigan subclass stricken
because the operative complaint does not assert any claims on their
behalf.
With no claims left, the Wescotts are dismissed, and without
Michigan residents left to represent the Michigan subclass, that
subclass is stricken. Because the Order also dismisses the only two
claims asserted by Divina and Brian Pappas, they are also dismissed
from the case, and the Ohio subclass they sought to represent is
stricken.
IV. Order
For the foregoing reasons, Honda's motion to dismiss is:
a. denied, as to Honda's argument that the Software
Calibration Defect is not adequately pled;
b. granted with leave to amend, as to Honda's argument that
the Sealing Gasket Defect is not adequately pled, with leave to
amend limited to alleging that the vehicles of one or more
Plaintiffs exhibited the Sealing Gasket Defect;
c. granted without leave to amend, as to the second claim for
breach of implied warranty under Florida law;
d. granted without leave to amend, as to the fourth claim for
breach of implied warranty under Ohio law;
e. denied, as to the sixth claim for breach of implied
warranty under South Carolina law;
f. granted without leave to amend, as to the ninth claim for
breach of implied warranty under Texas law;
g. denied, as to the eleventh cause of action for breach of
implied warranty under the Song-Beverly Consumer Warranty Act;
h. granted without leave to amend, as to the fifth claim for
breach of express warranty under South Carolina law;
i. denied, as to the eighth claim for breach of express
warranty under Texas law;
j. denied, as to the twelfth claim for breach of express
warranty under California law;
k. granted with leave to amend, as to the first claim for
violation of the Florida Deceptive and Unfair Trade Practices Act;
l. granted without leave to amend, as to the third claim for
violation of Ohio Consumer Sales Practices Act;
m. granted without leave to amend, as to seventh claim for
violation of the Texas Deceptive Trade Practices-Consumer
Protection Act;
n. granted without leave to amend, as to the tenth claim for
violation of the California Consumer Legal Remedies Act; and
o. granted without leave to amend, as to the thirteenth claim
for fraud by omission and/or fraudulent concealment.
Additionally, because she has dismissed all of their claims, Judge
Freeman dismissed Plaintiffs Divina Pappas, Brian Pappas, Kali
Wescott, and Eric Wescott from the case. The Michigan and Ohio
subclasses they purported to represent are struck.
The Plaintiffs will file an amended complaint within 45 days of the
Order. Failure to meet the deadline to file an amended complaint or
failure to cure the deficiencies identified on the record or in the
Order will result in a dismissal of the deficient claims with
prejudice. The Plaintiffs' amendments will not exceed the scope
allowed by the Court in the Order. In the event that a further
motion to dismiss is filed, it will be limited to the claims
amended pursuant to this order and briefing will not exceed 15-15-7
pages.
A full-text copy of the Court's March 18, 2022 Order is available
at https://tinyurl.com/mvtwshzx from Leagle.com.
APPLE INC: Orshan, et al., Seek to Certify Preinstall Subclass
--------------------------------------------------------------
In the class action lawsuit captioned as PAUL ORSHAN, CHRISTOPHER
ENDARA, DAVID HENDERSON, and STEVEN NEOCLEOUS, individually, and on
behalf of all others similarly situated, v. APPLE INC, Case No.
5:14-cv-05659-EJD (N.D. Cal.), the Plaintiffs ask the Court to
enter an order, pursuant to Rules 23(a) and 6 (b)(3), and in the
alternative, Rule 23(c)(4) of the Federal Rules of Civil
Procedure:
1. certifying: (1) a "Preinstall Subclass" consisting of all
persons who purchased new Devices 8 (16GB iPhones and
iPads from Apple, Inc.) in the United States during the
Class Period with iOS 8 preinstalled, and (b) an "Upgrade
Subclass" consisting of all persons who purchased new
Devices in the United States during the Class Period with
a predecessor operating system (iOS) and subsequently
installed iOS 8. Excluded from the Class are Defendant
Apple Inc. ("Apple"), its parents, subsidiaries,
affiliates, officers and directors; any entity in which
Apple has a controlling interest; governmental entities;
and all judges assigned to hear any aspect of this
litigation, as well as their staff and immediate family
members;" and
2. appointing them as Class Representatives and appointing
the law firms of Handley Farah & Anderson PLLC, Audet &
Partners, LLP, Baron & Herskowitz, Cuneo Gilbert & Laduca,
LLP, Lockridge Grindal Nauen PLLP, and Halunen &
Associates as Class Counsel.
Apple is an American multinational technology company that
specializes in consumer electronics, software and online services.
The Plaintiffs allege that Apple uniformly marketed and advertised
the smart phone devices as having "16GB" of storage capacity -- per
Apple, 16 gigabytes or 16 bilion bytes – availabl for consumers'
own personal use with no disclosure that consumers were actually
barred from using a significant portion of the storage.
A copy of the Plaintiffs' motion dated March 15, 2022 is available
from PacerMonitor.com at https://bit.ly/3LxpYGl at no extra
charge.[CC]
The Plaintiffs are represented by:
Michael McShane, Esq.
Ling Y. Kkuang, Esq.
Kurt D. Kessler, Esq.
AUDET & PARTNERS, LLP
711 Van Ness Avenue, Suite 500
San Francisco, CA 94102
Telephone: (415) 568-2555
Facsimile: (415) 568-1776
E-mail: mmcshane@audetlaw.com
lkuang@audetlaw.com
kkessler@audetlaw.com
- and -
William H. Anderson
HANDLEY FARAH & ANDERSON PLLC
4730 Table Mesa Drive
Suite G-200
Boulder, CO 80305
Telephone: (303) 800-9109
E-mail: wanderson@hajustice.com
- and -
Robert K. Shelquist, Esq.
Rebecca A. Peterson, Esq.
LOCKRIDGE GRINDAL NAUEN P.L.L.P.
100 Washington Avenue South, Suite 2200
Minneapolis, MN 55401
Telephone 612-339-6900
E-mail: rkshelquist@locklaw.com
rapeterson@locklaw.com
- and -
Jon M. Herskowitz
BARON & HERSKOWITZ
9100 S. Dadeland Blvd., Suite 1704
Miami, Fl. 33156
Telephone: (305) 670-0101
Facsimile: (305) 670-2393
E-mail: jon@bhfloridalaw.com
- and -
Charles J. Laduca, Esq.
CUNEO GILBERT & LADUCA, LLP
4725 Wisconsin Avenue, NW
Washington, DC 20016
Telephone: (202) 789-3960
Facsimile: (202) 789-1813
E-mail: charlesl@cuneolaw.com
- and -
Clayton D. Halunen, Esq.
HALUNEN LAW
1650 IDS Center
80 South Eighth Street
Minneapolis, MN 55402
Telephone: (612) 605−4098
Facsimile: (612) 605−4099
E-mail: halunene@halunenlaw.com
AUTO-OWNERS INSURANCE: Seeks OK to File Two Exhibits Under Seal
---------------------------------------------------------------
In the class action lawsuit captioned as MSP RECOVERY CLAIMS,
SERIES LLC, MSP RECOVERY CLAIMS SERIES 44, LLC v. AUTO-OWNERS
INSURANCE COMPANY, OWNERS INSURANCE COMPANY, and SOUTHERN-OWNERS
INSURANCE COMPANY, Case No. (S.D. Fla.), the Defendants ask the
Court to permit the filing under seal of two of the four exhibits
to their Memorandum Of Law In Opposition to Plaintiffs' motion For
class certification.
The exhibits are documents produced by the parties which have been
designated as confidential under the December 4, 2021 Stipulated
Protective Order. Under that Order, the exhibits must be filed
under seal in accordance with Local Rule 5.4(b).
Sealing the exhibits will not impair court function, and there is
no less-restrictive alternative to sealing the exhibits. Defendants
request that the exhibits to the motion for class certification
remain sealed for the duration of the litigation or until further
order of the Court, the Defendants say.
MSP is an industry pioneer in obtaining reimbursements for
Medicare, Medicaid, commercial insurance, and other healthcare
entities.
Auto-Owners is a mutual insurance company that provides life, home,
car and business insurance.
A copy of the Defendants' motion dated March 15, 2022 is available
from PacerMonitor.com at https://bit.ly/3iRvdEq at no extra
charge.[CC]
The Defendants are represented by:
Spencer H. Silverglate, Esq.
CLARK SILVERGLATE, P.A.
E-mail: ssilverglate@cspalaw.com
799 Brickell Plaza, Suite 900
Miami, FL 33131
Telephone: (305) 377-0700
Facsimile: (305) 377-3001
- and -
Lori McAllister, Esq.
DYKEMA
Capitol View
201 Townsend Street, Suite 900
Lansing, MI 48933
Telephone: (517) 374-9150
Facsimile: (855) 258-3519
E-mail: LMcAllister@dykema.com
AXIOM HEALTHCARE: Gordon Sues Over Healthcare Staff's Unpaid Wages
------------------------------------------------------------------
LASHAUNA GORDON, HYDIA GRIFFIN and QUINTASHIA HARDYWAY, on behalf
of themselves and all others similarly situated, Plaintiffs v.
AXIOM HEALTHCARE SERVICES, LLC, and REED'S COVE HEALTH AND
REHABILITATION, LLC, Defendants, Case No. 6:22-cv-01078 (D. Kan.,
March 25, 2022) is a class action against the Defendants for their
failure to compensate the Plaintiffs and similarly situated workers
overtime pay for all hours worked in excess of 40 hours in a
workweek in violation of the Fair Labor Standards Act and the
Kansas Wage Payment Act.
Plaintiff Hardyway was employed as a certified nurse assistant
while Plaintiffs Gordon and Griffin were employed as certified
medication aides.
Axiom Healthcare Services, LLC is a healthcare services provider
based in Wichita, Kansas.
Reed's Cove Health and Rehabilitation, LLC is a skilled nursing and
rehabilitation services provider based in Wichita, Kansas. [BN]
The Plaintiffs are represented by:
Donald N. Peterson, II, Esq.
Sean M. McGivern, Esq.
GRAYBILL & HAZLEWOOD, LLC
218 N Mosley St.
Wichita, KS 67202
Telephone: (316) 266-4058
Facsimile: (316) 462-5566
E-mail: don@graybillhazlewood.com
sean@graybillhazlewood.com
BAMIA 2: Johnson Wage-and-Hour Suit Removed to E.D. California
--------------------------------------------------------------
The case styled PARIS JOHNSON, individually and on behalf of all
others similarly situated v. BAMIA 2 LLC; REEF GLOBAL INC.; REEF
TECHNOLOGIES, INC.; and DOES 1 through 50, inclusive, Case No.
34-2022-0315184, was removed from the Superior Court of the State
of California for the County of Sacramento to the U.S. District
Court for the Eastern District of California on March 25, 2022.
The Clerk of Court for the Eastern District of California assigned
Case No. 2:22-cv-00548-KJM-AC to the proceeding.
The case arises from the Defendants' alleged violations of the
California Labor Code and the California's Business and Professions
Code including failure to pay all minimum wages, failure to pay all
overtime wages, meal period violations, rest period violations,
wage statement violations, waiting time penalties, failure to
reimburse necessary business expenses, and unfair competition.
Bamia 2 LLC is a limited liability company with its principal place
of business located in Miami, Florida.
Reef Global Inc. is a provider of parking lot facility management
services based in Miami, Florida.
Reef Technologies, Inc. is a parking lot facility management
services company based in Miami, Florida. [BN]
The Defendant is represented by:
Mia Farber, Esq.
Michael R. Minguet, Esq.
725 South Figueroa Street, Suite 2500
Los Angeles, CA 90017-5408
Telephone: (213) 689-0404
Facsimile: (213) 689-0430
E-mail: Mia.Farber@Jacksonlewis.com
Michael.Minguet@Jacksonlewis.com
BANK OF AMERICA: Second Sched Order Entered in Philadelphia Suit
----------------------------------------------------------------
In the class action lawsuit captioned as The City of Philadelphia
v. Bank of America Corporation, et al., Case No. 1:19-cv-01608-JMF
(S.D.N.Y.), the Hon. Judge Jesse M. Furman entered a second civil
case management plan and scheduling order as follows:
-- Any motion to amend or to join Aug. 23, 2021
additional parties shall be filed
no later than:
-- All fact discovery shall be June 30, 2022
completed no later than:
Bank of America Corporation is a global leader in wealth
management, corporate and investment banking and trading, serving
various clients worldwide.
A copy of the Court's order dated March 14, 2022 is available from
PacerMonitor.com at https://bit.ly/3uzKdfG at no extra charge.[CC]
BAYER AG: Investors Balk With Roundup & Monsanto Class Action
-------------------------------------------------------------
lawyersandsettlements.com reports that a group of investors has
balked at Bayer with a class action lawsuit claiming they were
deceived about the link between Roundup and cancer and the Monsanto
purchase that includes over 125,000 Roundup lawsuits.
Investors Balk at Bayer with Roundup and Monsanto Class Action
Lawsuit Investors are demanding about $2.5 billion from Bayer,
reported Reuters in January. That amount covered lawsuits from
about 320 investors, both institutional and retail, and an increase
from approximately 250 investors who initially demanded over $1
billion. According to the German law firm that filed with the
district court in Cologne, those institutional investors and a
large number of private investors believe Bayer misled them about
the economic risks of the $63 billion acquisition and are demanding
damages. Bayer said any complaints were unfounded, that it has
"complied with the law and with its disclosure requirements . . . .
We will therefore defend ourselves." According to Reuters, Bayer
said that, "In addition we are convinced that we have carried out
adequate due diligence regarding the acquisition of Monsanto."
This isn't the first time that investors have balked at Bayer's
Monsanto purchase. Investor Rebecca Haussmann in early 2020 accused
Bayer executives of going forward with the purchase of Monsanto in
the summer of 2018, despite obvious warning signs of looming legal
problems and the gigantic Roundup liability exposure it would
carry. Haussmann's lawsuit said the purchase was "disastrous" and
cost the company more in legal woes than it was worth given the
liability costs associated with Roundup lawsuits (over 50,000
according to Bayer's count in February 2020) that were filed by
former users of the toxic weedkiller who developed non-Hodgkins
lymphoma, as well as other claims.
Bayer now faces over 125,000 Roundup lawsuits alleging Monsanto
failed to warn of the risks associated with exposure to the
glyphosate-based weedkiller, which was identified as a probable
human carcinogen in 2015. Bayer had agreed to settle 98,000 of
those complaints but it stalled all settlement negotiations while
pursuing an appeal to the U.S. Supreme Court.
Meanwhile, the company has asked -for the second time this year --
the U.S. Supreme Court to review another case claiming that Roundup
causes cancer. This time it is appealing a California decision that
awarded almost $87 million (a jury initially awarded over $2
billion) to Alberta and Alva Pilliod who were diagnosed with
non-Hodgkins lymphoma after spraying the weedkiller for more than
three decades. Bayer still argues that Roundup is safe and the
lawsuits should be dismissed because federal regulators also
consider the weedkiller safe. However, it plans to replace
glyphosate with other active ingredients in weedkillers for U.S.
residential use. Farmers will still be sold the original recipe
because they "rely on it heavily and have a negligible role in the
litigation," according to Bayer.
While Bayer maintains that the investor lawsuits are unfounded, it
has also faced other lawsuits over its Monsanto acquisition. [GN]
BEASLEY LAW: Faces Class Action Over Alleged Ponzi Scheme
---------------------------------------------------------
Corrado Rizzi reports that a proposed class action aims to recover
investments poured into a reported $300 million Ponzi scheme
allegedly orchestrated in part by the Nevada-based Beasley Law
Group PC and its namesake, who reportedly admitted to the scheme
during a four-hour armed standoff with the FBI earlier this month.
According to the 26-page lawsuit, defendant Michael W. Beasley's
trust account with Wells Fargo, who's also named as a defendant,
served as the entry point to the scam, which the case says was
orchestrated by the Beasley firm, Jeffrey Judd and his entities,
J&J Consulting Services Inc. and J&J Consulting LLC.
The suit says that the entities marketed and sold interests in
purported personal injury settlements while promising investors 10-
to 20-percent returns to be paid every couple of months. Instead of
investing the funds as represented, the conspirators "used the
money in a classic Ponzi-like fashion, while drawing significant
profits," the complaint states.
"Once the funds entered the firm's trust account, the J&J
Conspirators misused, diverted, and misappropriated the funds, as
the purported settlements appear to have been entirely fabricated,"
the case reads.
The Wall Street Journal reported on March 23 that three FBI agents
rang the doorbell of Beasley's Las Vegas home on March 3 to
question him about a "high-return, zero-risk investment plan" his
law firm helped run. According to the WSJ, Beasley came to the door
standing sideways, and when he turned to face the agents, he was
holding a gun to his head. He then swung toward the agents and was
shot twice before retreating into his house, a federal prosecutor
relayed during a court hearing in early March, per the WSJ. Beasley
was eventually brought out of his house alive by the FBI.
From the WSJ report:
"Bleeding from gunshot wounds in his chest and shoulder, he
confessed: The investments were a Ponzi scheme, according to the
prosecutor. Check his bank records, Mr. Beasley said, and it will
all be clear."
The lawsuit argues that Wells Fargo, as a regulated bank, had
"heightened duties" as far as knowing its customers, in particular
law firms in possession of trust accounts for the benefit of
others. The suit alleges Wells Fargo "undoubtedly noticed and
flagged" the massive amounts of money in incoming investments and
then the diversion of those funds into the accounts of
"conspirators, brokers, and investors," most of whom, the case
says, had Wells Fargo accounts for this specific purpose.
"Wells Fargo therefore knew that these investments into and out of
a solo practitioner's trust account amounted to fraud and breaches
of the conspirators' duties to the investors," the lawsuit alleges.
"Despite this knowledge, Wells Fargo did nothing except continue to
facilitate the circular transfers and diversions of funds."
The lawsuit looks to represent all persons who invested in J&J
Purchasing or J&J Consulting's insurance settlement agreements
through the Beasley Law Group IOLTA account and suffered damages.
[GN]
BECTON DICKINSON: 7th Cir. Affirms Dismissal of Marion Class Suit
-----------------------------------------------------------------
In the case, MARION DIAGNOSTIC CENTER, LLC and MARION HEALTHCARE,
LLC, Plaintiffs-Appellants v. BECTON DICKINSON & CO., CARDINAL
HEALTH, INC., and McKESSON MEDICAL-SURGICAL, INC.,
Defendants-Appellees, Case No. 21-1513 (7th Cir.), the U.S. Court
of Appeals for the Seventh Circuit affirmed the district court's
order dismissing the Second Amended Complaint for failure to state
a claim.
I. Introduction
A putative class of medical providers brought the suit alleging a
conspiracy to drive up the prices of conventional syringes, safety
syringes, and safety IV catheters. The Providers' First Amended
Complaint ("FAC") alleged a hub-and-spokes conspiracy between
manufacturer Becton, Dickinson & Co. ("BD"), group purchasing
organizations, and four distributors of the Products in violation
of the Sherman Act, 15 U.S.C. Section 1. The district court
dismissed the FAC for failure to state a claim.
When the Seventh Circuit first considered the case on appeal, it
agreed: The Providers' failure to allege that the distributors
coordinated with each other in furtherance of the conspiracy doomed
their claims on the merits, citing Marion Healthcare, LLC v. Becton
Dickinson & Co. (Marion I), 952 F.3d 832, 842-43 (7th Cir. 2020).
Nonetheless, it vacated and remanded so the Providers could amend
their complaint one more time.
In their SAC, the Providers abandoned their horizontal conspiracy
allegations and now allege two vertical conspiracies: (1) between
BD and McKesson Medical-Surgical, Inc., and (2) between BD and
Cardinal Health, Inc. The district court once again dismissed the
SAC for failure to state a claim. It also concluded that because
the named Plaintiffs do not purchase the Products directly from
Cardinal, they lack "antitrust standing" to sue Cardinal under
Illinois Brick Co. v. Illinois, 431 U.S. 720 (1977).
II. Background
Marion Diagnostic Center, LLC and Marion Healthcare, LLC are small
healthcare providers in Marion, Illinois. Like many such providers,
they join group purchasing organizations ("GPOs"), which negotiate
contracts on behalf of their members for medical products. These
GPO-manufacturer contracts are known as "Net Dealer Contracts."
BD is the leading national manufacturer of the three products at
issue: BD controls 60% of the market for conventional syringes, 60%
of the market for safety syringes, and 55% of the market for safety
IV catheters. BD charges significantly higher prices than its
competitors: 11% more for conventional syringes, 36% more for
safety syringes, and 37% more for safety IV catheters.
Cardinal and McKesson are two of the largest distributors of the
Products. The distribution market entails warehousing, processing
orders, marketing, and tech support. Notably, the Providers have
not alleged that either Cardinal or McKesson has market power in
the distribution market, which includes at least four major
players. The Providers also concede that they do not purchase BD
products from Cardinal. They allege only that they have purchased
the Products from McKesson. Complicating matters further, the
Distributors make "Dealer Notification Agreements" with BD, in
which the Distributors agree to distribute BD's Products in
accordance with the Net Dealer Contracts.
The Plaintiffs allege that BD is engaged in two vertical
conspiracies to restrain trade in the relevant product markets.
Specifically, they allege that BD has a quid pro quo with Cardinal
and McKesson.
The Providers allege that BD has engaged in other anticompetitive
acts in furtherance of the conspiracies. Namely, BD has made false
claims about its own products while disparaging the products of its
rival, Retractable, and BD has been found liable for infringing
Retractable's patents. Additionally, BD has entered exclusionary
contracts with large healthcare providers (outside the GPO system)
that bundle the three products at issue with other BD products.
These allegations appeared in the FAC, which the Seventh Circuit
previously held failed to state a claim.
According to the Providers, all of this conduct amounts to
antitrust injury by allowing BD to inflate the prices of the
Products above competitive levels. The SAC further alleges that the
conspiracies harm innovation in the relevant product markets by
deterring potential entrants, thereby reducing product quality and
safety.
The district court concluded that the following allegations were
insufficient to show conscious commitment: BD's dominant market
share facilitates collusion and there are high barriers to entry;
the Distributors' actions are "contrary to their self-interest"
because they should naturally prefer upstream competition; the
Distributors' contracts with BD include agreements to exclude BD's
rivals; the Distributors have the motive to conspire because of
BD's dominance in the market; and the Distributors frequently
communicate with BD "beyond what is necessary to merely buy and
sell products."
Because the district court concluded that the SAC failed to state a
claim, it did not address the Defendants' related argument that the
Providers failed to allege Cardinal or McKesson had market power in
the distribution market. The Providers timely appealed.
III. Discussion
A. Standing
All agree that the Providers have standing to sue McKesson and BD.
The Providers contend that they also have standing to sue Cardinal,
even though they did not purchase the Products from Cardinal.
The Seventh Circuit holds that the Article III and Illinois Brick
inquiries lead to the same outcome in the case: The Providers are
not the proper parties to bring suit against Cardinal. But the
inquiries remain distinct and serve different purposes. The
Providers cannot sue Cardinal under Article III because their
injury is not fairly traceable to Cardinal's conduct. They also
cannot sue Cardinal under Illinois Brick, as interpreted by this
court in Paper Systems, because they do not purchase the Products
from either member of the BD-Cardinal conspiracy.
B. Failure to State a Claim
Because the Providers lack standing to sue Cardinal, the Seventh
Circuit's analysis of the merits focuses on the remaining alleged
vertical conspiracy between BD and McKesson. It holds that the
district court properly dismissed the SAC for failure to state a
claim.
The Seventh Circuit finds that (i) the Providers' allegations
regarding the Distributors' frequent communications with BD are not
necessarily indicative of collusion; (ii) the Providers have not
included any allegations showing that McKesson is unique in its
attempts to encourage sales of BD products, or that the benefits
McKesson receives from selling BD products differ from the benefits
any other distributor would receive; and (iii) the Providers have
not convincingly explained why they cannot choose distributors who
are not alleged to be conspiring with BD.
Because the Providers have not plausibly alleged a vertical
conspiracy between BD and McKesson, the Seventh Circuit affirms the
district court's decision on that basis.
The district court declined to reach the Distributors' alternative
basis for dismissal -- that the Providers failed to allege Cardinal
or McKesson has market power in the distribution market. In light
of its conclusion that the SAC fails to state a claim, the Seventh
Circuit declines to address this argument in the first instance.
IV. Conclusion
For the foregoing reasons, the district court's grant of the motion
to dismiss is affirmed.
A full-text copy of the Court's March 18, 2022 Order is available
at https://tinyurl.com/mr48bm9t from Leagle.com.
BELL FLAVORS: Guzman BIPA Suit Removed to N.D. Illinois
-------------------------------------------------------
The case styled JEROHAM GUZMAN, individually and on behalf of all
others similarly situated v. BELL FLAVORS AND FRAGRANCES, INC.,
Case No. 2021-CH-06316, was removed from Circuit Court of Cook
County, Illinois, County Department, Chancery Division, to the U.S.
District Court for the Northern District of Illinois on March 25,
2022.
The Clerk of Court for the Northern District of Illinois assigned
Case No. 1:22-cv-01590 to the proceeding.
The case arises from the Defendant's alleged violation of the
Biometric Information Privacy Act by causing the biometric data
from its employees' fingerprints to be recorded, collected, and
stored.
Bell Flavors and Fragrances, Inc. is an American multinational
manufacturer of flavors, fragrances, botanicals and ingredients,
headquartered in Northbrook, Illinois. [BN]
The Defendant is represented by:
Charles E. Reis, IV, Esq.
LITTLER MENDELSON, P.C.
600 Washington Ave., Ste. 900
St. Louis, MO 63101
Telephone: (314) 659-2000
E-mail: creis@littler.com
BOOHOO.COM USA: Stipulation on Deposition Scheduling OK'd in Khan
-----------------------------------------------------------------
In the class action lawsuit captioned as FARID KHAN, an individual,
on behalf of himself and all others similarly situated, v.
BOOHOO.COM USA, INC., a Delaware corporation, BOOHOO.COM UK
LIMITED, a United Kingdom private limited company, BOOHOO GROUP
PLC, a Jersey public limited company, and DOES 1-10, inclusive,
Case No. 2:20-cv-03332-GW-JEM (C.D. Cal.), the Court entered an
order granting stipulation regarding deposition scheduling as
follows:
1. The deadline for filing a motion April 11, 2022
for preliminary approval of class
settlement shall be set for:
2. In the event the Parties are unable April 11, 2022
to agree on a final settlement
agreement, the Parties shall meet
and confer and file by:
3. The Court sets a status conference April 18, 2022
for:
4. The parties shall file a joint April 14, 2022
status report by:
A copy of the Court's order dated March 14, 2022 is available from
PacerMonitor.com at https://bit.ly/3qOACRg at no extra charge.[CC]
CELSIUS HOLDINGS: Robbins Geller Reminds of May 16 Deadline
-----------------------------------------------------------
The law firm of Robbins Geller Rudman & Dowd LLP announces that
purchasers or acquirers of Celsius Holdings, Inc. (NASDAQ: CELH)
securities between August 12, 2021 and March 1, 2022, both dates
inclusive (the "Class Period") have until May 16, 2022 to seek
appointment as lead plaintiff in McCallion v. Celsius Holdings,
Inc., No. 22-cv-80418 (S.D. Fla.). Commenced on March 16, 2022, the
Celsius class action lawsuit charges Celsius and certain of its top
executive officers with violations of the Securities Exchange Act
of 1934.
If you suffered significant losses and wish to serve as lead
plaintiff of the Celsius class action lawsuit, please provide your
information by clicking here. You can also contact attorney J.C.
Sanchez of Robbins Geller by calling 800/449-4900 or via e-mail at
jsanchez@rgrdlaw.com. Lead plaintiff motions for the Celsius class
action lawsuit must be filed with the court no later than May 16,
2022.
CASE ALLEGATIONS: Celsius develops, markets, and sells functional
drinks and liquid supplements. Celsius' core offerings include pre-
and post-workout functional energy drinks and protein bars.
The Celsius class action lawsuit alleges that, throughout the Class
Period, defendants made false and misleading statements and failed
to disclose that: (i) Celsius had improperly recorded expenses for
non-cash share-based compensation for the second and third quarters
of 2021; (ii) as a result, Celsius' financial statements for those
periods would be restated, including to report a net loss for the
third quarter of 2021; (iii) there was a material weakness in
Celsius' internal controls over financial reporting; and (iv)
consequently, defendants' positive statements about Celsius'
business, operations, and prospects were materially misleading
and/or lacked a reasonable basis.
On March 1, 2022, Celsius disclosed that it could not timely file
its 2021 annual report due to "staffing limitations, unanticipated
delays and identified material errors in previous filings."
Specifically, Celsius "determined that the calculation and expense
of non-cash share-based compensation, related to grants of stock
options and restricted stock units awarded to certain former
employees and retired directors were materially understated for the
three and six month periods ended June 30, 2021 and three and nine
month periods ended September 30, 2021." As a result, management
concluded that there was a material weakness in Celsius' internal
controls over financial reporting. On this news, Celsius' stock
price fell more than 8%, damaging investors.
THE LEAD PLAINTIFF PROCESS: The Private Securities Litigation
Reform Act of 1995 permits any investor who purchased Celsius
securities during the Class Period to seek appointment as lead
plaintiff in the Celsius class action lawsuit. A lead plaintiff is
generally the movant with the greatest financial interest in the
relief sought by the putative class who is also typical and
adequate of the putative class. A lead plaintiff acts on behalf of
all other class members in directing the class action lawsuit. The
lead plaintiff can select a law firm of its choice to litigate the
class action lawsuit. An investor's ability to share in any
potential future recovery of the class action lawsuit is not
dependent upon serving as lead plaintiff.
ABOUT ROBBINS GELLER RUDMAN & DOWD LLP: Robbins Geller Rudman &
Dowd LLP is one of the world's leading complex class action firms
representing plaintiffs in securities fraud cases. The Firm is
ranked #1 on the 2021 ISS Securities Class Action Services Top 50
Report for recovering nearly $2 billion for investors last year
alone - more than triple the amount recovered by any other
plaintiffs' firm. With 200 lawyers in 9 offices, Robbins Geller's
attorneys have obtained many of the largest securities class action
recoveries in history, including the largest securities class
action recovery ever - $7.2 billion - in In re Enron Corp. Sec.
Litig. Please visit http://www.rgrdlaw.comfor more information.
[GN]
CG CONSULTING: Ousley Seeks to Certify Class Action
---------------------------------------------------
In the class action lawsuit captioned as Alicia Ousley, Michael
Starkey, and Josh Votaw, On behalf of themselves and those
similarly situated, v. CG Consulting, LLC d/b/a Scores Columbus, et
al., Case No. 2:19-cv-01744-SDM-KAJ (S.D. Ohio), the Plaintiffs ask
the Court to enter an order:
1. certifying the action as a class action and designating
the Named Plaintiffs as the representatives of the
following class:
"All non-owner, non-employer current and former hourly,
employees to whom a tip credit was applied and who worked
for the CG Defendants in Ohio during any workweek from May
2, 2016 to the present;" and
2. appointing Daniel I. Bryant of Bryant Legal, LLC and Laren
E. Knoll of The Knoll Law Firm, LLC as Class Counsel
pursuant to Rule 23(g); and
3. permitting them to send notice of the lawsuit to putative
class members pursuant to Rule 23(c)(2).
CG Consulting provides programme support for clients operating
across all sectors.
A copy of the Plaintiffs' motion to certify class dated March 16,
2022 is available from PacerMonitor.com at https://bit.ly/38rRBCr
at no extra charge.[CC]
The Plaintiffs are represented by:
Laren E. Knoll, Esq.
THE KNOLL LAW FIRM, LLC
7240 Muirfield Drive, Suite 120
Dublin, OH 43017
Telephone: (614) 372-8890
Facsimile: (614) 452-4850
E-mail: lknoll@knolllaw.com
- and -
Daniel I. Bryant, Esq.
BRYANT LEGAL, LLC
1550 Old Henderson Road, Suite 126
Columbus, OH 43220
Telephone: (614) 704-0546
Facsimile: (614) 573-9826
E-mail: dbryant@bryantlegalllc.com
CHARLEYS PHILLY: Machuca Wage-and-Hour Suit Goes to E.D. California
-------------------------------------------------------------------
The case styled ANAHY MACHUCA, individually and on behalf of all
others similarly situated v. CHARLEYS PHILLY STEAKS; MODESTO
VENTURES, LLC; SAMMY RAMIREZ; and DOES 1 through 100, inclusive,
Case No. FCS057713, was removed from the Superior Court of the
State of California for the County of Solano to the U.S. District
Court for the Eastern District of California on March 25, 2022.
The Clerk of Court for the Eastern District of California assigned
Case No. 1:22-at-00204 to the proceeding.
The case arises from the Defendants' alleged violations of the
California Labor Code and the California's Business and Professions
Code including failure to pay overtime wages, failure to pay
minimum wages, failure to provide meal periods, failure to provide
rest periods, failure to pay all wages due upon termination,
failure to provide accurate wage statements, failure to timely pay
wages during employment, unreimbursed business expenses, and unfair
competition.
Charleys Philly Steaks is an American restaurant chain of Philly
cheesesteak stores headquartered in Columbus, Ohio.
Modesto Ventures, LLC is a limited liability company with its
corporate headquarters in Columbus, Ohio. [BN]
The Defendants are represented by:
Rachael Lavi, Esq.
Jennifer A. Goldberg, Esq.
LITTLER MENDELSON, P.C.
2049 Century Park East, 5th Floor
Los Angeles, CA 90067-3107
Telephone: (310) 553-0308
Facsimile: (310) 553-5583
E-mail: rlavi@littler.com
jagoldberg@littler.com
CIG LOGISTICS: Mobley Seeks Proper Wages for Well Site Operators
----------------------------------------------------------------
RONALD MOBLEY, individually and on behalf of similarly situated
individuals v. CIG Logistics LLC, and Continental Intermodal Group
Trucking LLC, Case No. 1:22-cv-00226 (D.N.M., March 28, 2022),
seeks unpaid wages, including overtime wages, and all other
available relief under the New Mexico Minimum Wage Act.
According to the complaint, WSO spent most of the day before and
after their shifts driving hundreds of miles to and from the job
sites. This travel cut across WSO's normal working hours during
both regular working days and non-working days. The identity of all
WSO is unknown at this time but is known to Defendant and is
contained in the Defendant's records.
The Defendant did not count time spent traveling as hours worked
for purposes of determining overtime eligibility. Consequently,
Defendant failed to pay proper wages, including overtime wages to
Plaintiff and other similarly situated individuals. The Defendant
willfully deprived WSO of proper wages, including overtime wages,
the lawsuit says.
The Defendants employed Plaintiff as an hourly non-exempt Well Site
Operator (WSO). The Plaintiff and other similarly situated
employees regularly worked more than 40 hours per workweek. WSO
performed the manual tasks associated with Defendants' onsite sand
services.
CIG provided fracking sand and onsite sand service to fracking
companies in multiple states. Defendants employed Plaintiff and
other WSO to work for them in the States of Texas, New Mexico, and
North Dakota.[BN]
The Plaintiff is represented by:
Trang Q. Tran, Esq.
TRAN LAW FIRM
2537 South Gessner Road, Suite 104
Houston, TX 77063
Telephone: (713) 223-8855
E-mail: trang@tranlf.com
service@tranlf.com
CITIZENS BANK: Scheduling Order Entered in Chirchir Class Suit
--------------------------------------------------------------
In the class action lawsuit captioned as DR. HABIBA CHIRCHIR, on
behalf of herself and a similarly situated class of persons, v.
CITIZENS BANK, N.A. d/b/a Citizens One Home Loans, Case No.
3:20-cv-00416 (S.D.w.Va.), the Hon. Judge Robert C. Chambers
entered a scheduling order as follows:
1. The parties shall be allowed until May 11, 2022, to join
additional parties and to amend the pleadings exclusive of
parties who are identified through discovery or otherwise
become necessary.
2. The parties shall complete all discovery requests by
October 12, 2022, and all depositions by November 25, 2022.
3. The party bearing the burden of proof on an issue shall
make the disclosures of information required by Fed. R.
Civ. P. 26(a)(2)(A) and (B) for that issue to all other
parties or their counsel no later than August 5, 2022.
4. The last day for Plaintiff to file a motion for class
certification shall be December 23, 2022. Any response
shall be filed within 28 days of the filing of the motion,
with replies due within 14 days of the filing of the
response.
5. No later than December 23 2022, counsel and any
unrepresented parties shall meet to conduct settlement
negotiations.
Citizens Bank provides commercial banking services.
A copy of the Court's order dated March 14, 2022 is available from
PacerMonitor.com at https://bit.ly/36Ck48b at no extra charge.[CC]
COLLECTION BUREAU: Court Administratively Closes Rivera Case
------------------------------------------------------------
In the class action lawsuit captioned as STEVEN RIVERA, v.
COLLECTION BUREAU HUDSON VALLEY, INC., Case No. 9:21-cv-80711-AMC
(S.D. Fla.), the Hon. Judge Aileen M. Cannon entered an order
that:
1. The above-styled action is administratively closed without
prejudice to the parties to file a stipulation for
dismissal on or before April 14, 2022.
2. If the parties fail to complete the expected settlement,
either party may request the Court to reopen the case.
3. The Clerk shall close this case for administrative
purposes only. Any scheduled hearings are canceled, any
pending motions are denied as moot, and all deadlines are
terminated.
Collection Bureau of the Hudson Valley Inc. is a collection agency
located in Newburgh, New York.
A copy of the Court's order dated March 15, 2022 is available from
PacerMonitor.com at https://bit.ly/3DwxE8N at no extra charge.[CC]
COOK COUNTY, IL: Bid to Certify Class in Evans v. CCDOC Denied
--------------------------------------------------------------
In the case, DAVID EVANS III, RASHID MUHAMMAD, MONTA SERVANT,
FELISHA PARNELL, DWIGHT ANDERSON, JOSEPH TINOCO, and FRANK DONIS,
Plaintiffs v. THOMAS J. DART, Sheriff of Cook County, COOK COUNTY
OF COOK, a unit of local government as joint employer for FLSA
purposes and as indemnitor, Defendants, Case No. 20 C 2453 (N.D.
Ill.), Judge Rebecca R. Pallmeyer of the U.S. District Court for
the Northern District of Illinois, Eastern Division, denied without
prejudice the Plaintiffs' motion for conditional class
certification and court-authorized notice under the Fair Labor
Standards Act.
I. Background
Plaintiffs David Evans III, Rashid Muhammad, Monta Servant, Felisha
Parnell, Dwight Anderson, Joseph Tinoco, and Frank Donis worked as
Correctional Officers for Defendants Cook County, Illinois, and
Thomas J. Dart, the Sheriff of Cook County. The Plaintiffs allege
that Defendants violated the FLSA, 29 U.S.C. Section 201, et seq.,
by failing to pay them and other similarly situated employees for
overtime work.
The Cook County Department of Corrections ("CCDOC") has been at the
epicenter of the nation's fight against the spread of COVID-19. In
April 2020, the jail was "the nation's largest-known source of
coronavirus infections." The CCDOC took swift action, and by July
2020, the Centers for Disease Control ("CDC") found that the jail's
aggressive intervention strategies had mitigated transmission and
caused a decline in cases. The case concerns allegations that those
intervention strategies required officers at the CCDOC to perform
unpaid labor in violation of the FLSA.
The Plaintiffs filed the putative collective action on April 21,
2020. In Counts 1 and 2 of their Second Amended Complaint, the
Plaintiffs allege that the Defendants failed to adequately
compensate them, and other employees similarly situated, in
violation of the FLSA. They contend that when the COVID-19 pandemic
began, Sheriff Dart required them to "engage in
decontamination/sanitation activities after the end of their shifts
within the CCDOC, including washing and sanitizing their uniforms,
sanitizing their persons, sanitizing and maintaining personal
protective equipment ("PPE"), and showering." They allege these
activities took "approximately 20 to 30 minutes at the beginning
and/or end of each shift" and that "at no time have the Defendants
paid the Plaintiffs or similarly situated officers for the
aforementioned activities." The Plaintiffs also allege these
activities were undertaken in addition to full workdays, often "up
to 16 hours straight inside the CCDOC."
The Plaintiffs propose the following class definition: All persons
who worked, for any portion of time, as a Cook County Correctional
Officer (CO1) or Investigator II (CS2) at the Cook County
Department of Corrections between Jan. 27, 2020 and June 11, 2021
and who engaged in washing, sanitizing, or decontaminating
activities as to their person, uniform, duty belt, personal
protective equipment, or vehicles used in commuting to and from
work, and who were not paid for time spent contiguously before or
contiguously after their shifts engaging in such activities."
The Plaintiffs allege the class may include up to 3000 employees,
as that is roughly the number of Correctional Officers and
Investigator II's employed by CCDOC during the relevant time
period.
In support of their motion for conditional certification and
court-authorized notice, Plaintiffs have submitted declarations
from named Plaintiffs Anderson, Donis, Evans, Parnell, Servant, and
Tinoco, each of whom worked as a Correctional Officer at the CCDOC
during the time period in the class definition.
All the named Plaintiffs and declarants worked as Correctional
Officers; none worked as an "Investigator II," the other job title
included in the proposed class definition. The Plaintiffs' motion
for conditional certification states that "Investigators work in
the Electronic Monitoring Unit at the CCDOC and are subject to the
same overarching General Orders and policies of the Sheriff as the
Correctional Officers." The Plaintiffs allege further that "for
purposes of this suit Correctional Officers and Investigator II's
are similarly-situated." Declarants Servant and Tinoco aver that
they "personally observed" Investigator II's working in the
presence of detainees, and they also declare that Investigator II's
are subject to the same decontamination protocols and expectations
as Correctional Officers.
In response to this motion, the Defendants have submitted three
declarations relevant to class certification, as well as numerous
exhibits. The first such declaration is from Brad Curry, who was,
during the relevant period, Chief of Staff for the Cook County
Sherriff's Office ("CCSO"). In that capacity, Curry oversaw "all
CCSO efforts to address, combat and limit the spread" of COVID-19
within CCDOC. The Defendants' second declaration is from Hugh
Walsh, the CCSO First Assistant Executive Director, who manages and
supervises the operations of CCDOC. Walsh asserts that "none of
these directives require that Correctional Officers engage in
sanitization activities while off duty." The Defendants' third
declaration is from Matthew Burke, the Executive Director of Human
Resources. Burke declares that his responsibilities include, among
other things, "keeping abreast of continuously developing guidance
issued by public health agencies."
II. Discussion
The Plaintiffs argue that they have made the necessary modest
factual showing that they and other potential plaintiffs are
similarly situated, because they all hold one of two job titles,
they all are subject to the same general orders, they all work on
or around the CCDOC compound, and they "all were subjected to the
work requirement of engaging in heightened COVID-19 decontamination
activities alleged in the complaint." The Defendants counter that
the court should deny Plaintiffs' motion because (1) the Plaintiffs
have not identified a common policy that violates the FLSA, (2) the
case will involve individualized, fact-specific inquiries, and (3)
the Plaintiffs have not established that Investigator II's are
similarly situated to Correctional Officers.
First, as the Plaintiffs have not shown that they are "victims of a
common policy or plan that violated the law," Judge Pallmeyer will
not certify the class as currently proposed. The Plaintiffs' motion
is therefore denied.
Next, she holds that the Plaintiffs have made a modest factual
showing that they are similarly situated to other potential
plaintiffs. If they could show they were subject to an unlawful
overtime work policy, their claims may be less fact-intensive than
the inquiry into the severity and pervasiveness of a particular
employee's experience of sexual harassment.
Lastly, Judge Pallmeyer cannot conclude that Investigator II's are
similarly situated to the named plaintiffs. The Plaintiffs may be
correct that they need not necessarily submit a declaration from an
Investigator II. But if they can otherwise make a case for
conditional certification, the Court assumes it will be a
relatively simple matter for the Plaintiffs to provide a
declaration from at least one employee holding the position of
Investigator II.
III. Conclusion
For the foregoing reasons, Judge Pallmeyer denied without prejudice
the Plaintiffs' motion for conditional class certification and
court-authorized notice.
A full-text copy of the Court's March 18, 2022 Memorandum Opinion &
Order is available at https://tinyurl.com/3exyavwn from
Leagle.com.
CRITICAL TELEPHONE: CMP & Scheduling Order Entered in Tavarez
-------------------------------------------------------------
In the class action lawsuit captioned as VICTORIANO TAVAREZ,
Individually, and On Behalf of All Others Similarly Situated, v.
CRITICAL TELEPHONE APPLICATIONS, INC., Case No. 1:21-cv-09805-AT
(S.D.N.Y.), the Hon. Judge Analisa Torres entered a civil case
management plan and scheduling order as follows:
-- All fact discovery shall be July 8, 2022
completed no later than:
-- Initial requests for production March 8, 2022
of documents to be served by:
-- Depositions to be completed by: July 8, 2022
-- All expert discovery shall be Aug. 22, 2022
completed no later than:
A copy of the Court's order dated March 14, 2022 is available from
PacerMonitor.com at https://bit.ly/3IOkhBX at no extra charge.[CC]
DELAWARE COUNTY, PA: Wins Summary Judgment v. Burford
------------------------------------------------------
In the class action lawsuit captioned as TONY BURFORD v. DELAWARE
COUNTY, PENNSYLVANIA, ET AL., Case No. 2:19-cv-00577-JMY (E.D.
Pa.), the Hon. Judge John Milton Younge entered an order granting
the Defendants' motion for summary judgment as to the Plaintiff's
federal law claims and declines jurisdiction over the Plaintiff's
state law conversion claim.
The Plaintiff Tony Burford was arrested on January 15, 2016. An
information was filed against him in the Delaware County Court of
Common Pleas charging Plaintiff with one or more felonies.
Bail was initially set at $100,000 and then subsequently reduced to
$60,000 for which Plaintiff posted 10% at $6,000. By March 1, 2017
all charges against Plaintiff were either withdrawn, dismissed or
he was found not guilty.
Despite not being convicted of any crime, the Plaintiff was
assessed $3,533.05 in costs which consisted of $2,400 for a "Bail
Handling Percent (Delaware)" along with various charges in the
amount of $1,133.05. Thus, of the $6,000 Plaintiff posted bail for,
he was offered less than 50% back despite not being convicted of
any offense.
A copy of the Court's order dated March 15, 2022 is available from
PacerMonitor.com at https://bit.ly/3tXBIfb at no extra charge.[CC]
DOCUSIGN INC: Faces Weston Securities Suit in California Court
---------------------------------------------------------------
DocuSign disclosed in its Form 10-K Report for the fiscal year
ended January 31, 2022, filed with the Securities and Exchange
Commission on March 25, 2022, that a class action was filed against
the company and its officers alleging claims under the Securities
Exchange Act.
On February 8, 2022, a putative securities class action was filed
in the U.S. District Court for the Northern District of California,
captioned "Weston v. DocuSign, Inc., et al.," Case No.
3:22-cv-00824, naming DocuSign and certain of its current and
former officers as defendants.
The complaint purports to allege claims under Sections 10(b) and
20(a) of the Securities Exchange Act of 1934, and Rule 10b-5
promulgated thereunder, based on allegedly false and misleading
statements about the company's business and prospects during the
course of the COVID-19 pandemic.
The suit is purportedly brought on behalf of purchasers of the
company's securities between June 4, 2020 and December 2, 2021.
DocuSign provides electronic signature products based in San
Francisco, California.
DOORDASH INC: Yuquilema Wage-and-Hour Suit Removed to S.D.N.Y.
--------------------------------------------------------------
The case styled JOSE REINALDO YUQUILEMA MULLO and SILVERIO FLORES,
individually and on behalf of all others similarly situated v.
DOORDASH, INC., ERIN ANDEREGG, and TONY XU, Case No. 650686/2022,
was removed from the Supreme Court of the State of New York, New
York County, to the U.S. District Court for the Southern District
of New York on March 25, 2022.
The Clerk of Court for the Southern District of New York assigned
Case No. 1:22-cv-02430 to the proceeding.
The case arises from the Defendants' alleged violations of the Fair
Labor Standards Act including unpaid minimum and overtime wages,
unpaid spread of hours premium, unpaid uniform maintenance pay, and
unreimbursed out-of-pocket expenses.
DoorDash, Inc. is an online food ordering and food delivery
company, with its principal place of business located at 303 2nd
St., Suite 800 San Francisco, California. [BN]
The Defendants are represented by:
Zack G. Sharpe, IV, Esq.
LITTLER MENDELSON, P.C.
900 Third Avenue
New York, NY 10022
Telephone: (212) 583-9600
E-mail: zsharpe@littler.com
ENCLARITY INC: Fulton Seeks to File Opposition Reply Under Seal
----------------------------------------------------------------
In the class action lawsuit captioned as MATTHEW N. FULTON, DDS,
P.C., individually and on behalf of all others similarly situated,
v. ENCLARITY, INC., LEXISNEXIS RISK SOLUTIONS INC., LEXISNEXIS RISK
SOLUTIONS GA INC., LEXISNEXIS RISK SOLUTIONS FL INC., and JOHN DOES
1-12, Case No. 2:16-cv-13777-DPH-RSW (E.D. Mich.), the Plaintiff
moves the Court to enter an order permitting him to file under seal
unredacted copies of his Reply in Support of class certification
and response in opposition to the Defendants.
Exclude Certain Opinions of Plaintiff's Expert Witness Lee Howard
and certain Exhibits thereto.
The case asserts claims under the Telephone Consumer Protection Act
(TCPA) relating to faxes sent by Defendants. Discovery in the case
has included inquiry into millions of faxes Defendants sent to
healthcare providers, identification of those providers, and
Defendants' business practices.
Pursuant to the Stipulated Protective Order entered in this action,
the Defendants have designated a substantial number of documents
they produced, as well as testimony of their current or former
employees, as "Confidential" and/or "Confidential – Attorneys'
Eyes Only." Pursuant to the Stipulated Protective Order entered in
this action.
The Plaintiff has also designated some information as
"Confidential" and/or "Attorneys' Eyes Only" pursuant to the
Stipulated Protective Order. However, Defendants are the only party
asserting confidentiality over the information submitted for filing
under seal in connection with the present motion.
Enclarity provides healthcare information solutions.
A copy of the Plaintiff's motion dated March 15, 2022 is available
from PacerMonitor.com at https://bit.ly/3726KJV at no extra
charge.[CC]
The Plaintiff is represented by:
Phillip A. Bock, Esq.
Robert M. Hatch, Esq.
Jonathan B. Piper, Esq.
Molly E. Stemper, Esq.
BOCK HATCH & OPPENHEIM, LLC
203 N. La Salle St. Suite 2100
Chicago, IL 60601
Telephone: (312) 658-5500
Facsimile: (312) 658-5555
E-mail: service@classlawyers.com
ENOVIX CORP: Faces Prak Suit in California
------------------------------------------
Enovix Corporation disclosed in its Form 10-K Report for the fiscal
year ended December 31, 2021, filed with the Securities and
Exchange Commission on March 25, 2022, that in January 21, 2022,
two former machine operator employees filed a putative wage and
hour class action lawsuit against Enovix and co-defendant Legendary
Staffing, Inc. in the Superior Court of California, County of
Alameda.
The case is captioned "Sopheak Prak and Ricardo Pimentel v. Enovix
Corporation and Legendary Staffing, Inc.," Case No. 22CV005846. The
Prak complaint alleges, among other things, on a putative
class-wide basis, that the defendants failed to pay all overtime
wages and committed meal period, rest period and wage statement
violations under the California Labor Code and applicable Wage
Orders. The plaintiffs are seeking unpaid wages, statutory
penalties and interest, and reasonable costs and attorney fees.
Enovix designs, develops and samples advanced lithium-ion
batteries.
FIRST TRANSIT: Fulton Wage-and-Hour Suit Goes to C.D. California
----------------------------------------------------------------
The case styled JAMIE FULTON, individually and on behalf of all
others similarly situated v. FIRST TRANSIT SERVICES, INC.; FIRST
TRANSIT, INC.; FIRSTGROUP AMERICA, INC.; and DOES 1 through 100,
inclusive, Case No. CIVSB2135122, was removed from the Superior
Court of the State of California, County of San Bernardino, to the
U.S. District Court for the Central District of California on March
28, 2022.
The Clerk of Court for the Central District of California assigned
Case No. 5:22-cv-00537 to the proceeding.
The case arises from the Defendants' alleged violations of the
California Labor Code and the California's Business and Professions
Code including unpaid overtime, unpaid meal period premiums, unpaid
rest period premiums, unpaid minimum wages, final wages not timely
paid, wages not timely paid during employment, non-complaint wage
statements, failure to keep requisite payroll records, unreimbursed
business expenses, and unfair competition.
First Transit Services, Inc. is a transportation services company,
with its corporate headquarters located in Cincinnati, Ohio.
First Transit, Inc. is a transportation services company, with its
corporate headquarters located in Cincinnati, Ohio.
FirstGroup America, Inc. is a provider of transportation services,
with its corporate headquarters located in Cincinnati, Ohio. [BN]
The Defendants are represented by:
David J. Dow, Esq.
Carrie A. Stringham, Esq.
Kara Adelle Ritter Cole, Esq.
LITTLER MENDELSON, P.C.
501 W. Broadway, Suite 900
San Diego, CA 92101-3577
Telephone: (619) 232-0441
Facsimile: (619) 232-4302
E-mail: ddow@littler.com
cstringham@littler.com
kcole@littler.com
FLYWHEEL ENERGY: Seeks Extension to File Class Cert Bid Reply
-------------------------------------------------------------
In the class action lawsuit captioned as DARRELL OLIGER AND CAROL
OLIGER, CO-TRUSTEES OF THE DARRELL AND CAROL OLIGER REVOCABLE TRUST
DATED 19, 2007, Individually and on behalf of all others similarly
situated, v. FLYWHEEL ENERGY PRODUCTION, LLC, Case No.
4:20-cv-01146-LPR (E.D. Ark.), the Defendant asks the Court to
enter an order extending the time for it to respond to Plaintiffs'
Motion for Class Certification, Appointment of Class
Representatives, and Appointment of Class Counsel, or in the
alternative, to strike the motion or hold in abeyance, and grant it
all other just and proper relief to which it may be entitled.
On November 17, 2020, the Plaintiffs filed their Third Amended
Complaint. On May 6, 2021, the Defendant filed a Motion for
Consolidation.
On July 30, 2021, the Court entered an Order granting in part and
denying in part Defendant's Motion for Consolidation.
In its July 30, 2021 Order, the Court stated it "will issue revised
scheduling orders in all cases after the 23(g)(3) conference it
holds in the Bryant and Oliger cases."
On August 5, 2021, and August 13, 2021, the Plaintiffs' Counsel for
Darrell Oliger and Carol Oliger, co-Trustees of the Darrell and
Carol Oliger Revocable Trust Dated June 19, 2007, Puloma
Properties, LLC and LGTD Investments, and Plaintiff's Counsel for
Glendon Bryant filed competing Motions for Appointment of Interim
Lead Counsel.
On August 25, 2021, a Rule 23(g) Conference was held, and the Court
"took the matter under advisement."
A copy of the Defendant's motion dated March 16, 2022 is available
from PacerMonitor.com at https://bit.ly/3K9d9S6 at no extra
charge.[CC]
The Defendant is represented by:
G. Alan Perkins, Esq.
M. Christine Dillard, Esq.
Samuel S. McLelland, Esq.
PPGMR Law, PLLC
P.O. Box 3446
Little Rock, AR 72203
Telephone: (501) 603-9000
Facsimile: (501) 603-0556
E-mail: alan@ppgmrlaw.com
christine@ppgmrlaw.com
sam@ppgmrlaw.com
FROM THE HEART: Fails to Pay Overtime Pay, Crooks Suit Alleges
--------------------------------------------------------------
ASIA CROOKS, individually and on behalf of all others similarly
situated Plaintiff v. FROM THE HEART HOME HEALTH CARE, LLC,
Defendant, Case 2:22-cv-10655-PDB-DRG (E.D. Mich., March 28, 2022)
is an action against the Defendant's failure to pay the Plaintiff
and the class overtime compensation for hours worked in excess of
40 hours per week.
Plaintiff Crooks was employed by the Defendant as a home health
aide.
FROM THE HEART HOME HEALTH CARE, LLC is a home healthcare and
homecare agency. [BN]
The Plaintiff is represented by:
Jennifer Lossia McManus, Esq.
FAGAN MCMANUS, P.C.
25892 Woodward Avenue
Royal Oak, MI 48067-0910
Telephone: (248) 542-6300
Facsimile: (248) 542-6301
Email: jmcmanus@faganlawpc.com
-and-
Alanna Klein Fischer, Esq.
Anthony J. Lazzaro, Esq.
Lori M. Griffin, Esq.
Matthew S. Grimsley, Esq.
THE LAZZARO LAW FIRM, LLC
The Heritage Bldg., Suite 250
34555 Chagrin Boulevard
Moreland Hills, OH 44022-1059
Telephone: (216) 696-5000
Facsimile: (216) 696-7005
Email: alanna@lazzarolawfirm.com
anthony@lazzarolawfirm.com
lori@lazzarolawfirm.com
matthew@lazzarolawfirm.com
FUNKO INC: Time for Class Cert Briefing Extended in Ferreira Suit
-----------------------------------------------------------------
In the class action lawsuit captioned as GILBERTO FERREIRA,
Individually and On Behalf of All Others Similarly Situated, v.
FUNKO, INC., et al., Case No. 2:20-cv-02319-VAP-MAA (C.D. Cal.),
the Hon. Judge Virginia A. Phillips entered an order extending time
for class certification briefing:
A. The current class certification briefing schedule set in
the Court's Order dated February 1, 2022 is vacated.
B. The Plaintiffs shall file a motion for class certification
on or before June 13, 2022.
C. The Defendants shall file any opposition to Plaintiffs'
motion for class certification on or before July 13, 2022.
D. The Plaintiffs shall file any reply in support of their
motion for class certification on or before August 2,
2022.
E. The hearing on Plaintiffs' motion for class certification
is set for September 12, 2022.
A copy of the Court's order dated March 15, 2022 is available from
PacerMonitor.com at https://bit.ly/3uNkhx4 at no extra charge.[CC]
The Attorneys for the Funko Defendants are:
Kevin M. McDonough, Esq.
Thomas J. Giblin, Esq.
Meryn C. N. Grant, Esq.
LATHAM & WATKINS LLP
1271 Avenue of the Americas
New York, NY 10020
Telephone: (212) 906-1200
Facsimile: (212) 751-4864
E-mail: kevin.mcdonough@lw.com
thomas.giblin@lw.com
meryn.grant@lw.com
GENERAL MILLS: Faces Suit Over Mislabeled Frozen Cheese Pizza Rolls
-------------------------------------------------------------------
Totino's frozen cheese pizza rolls are not made with real cheese, a
new class action lawsuit alleges.
Plaintiff Lakita Smith filed the complaint against General Mills
Sales, Inc. Mar. 23 in an Illinois federal court, alleging
violations of state and federal consumer laws. She said the company
makes and sells frozen cheese pizza rolls under the Totino's brand.
The pizza rolls are marketed with words like "Cheese," "Pizza In A
Golden Crust" and pictures of the pizza rolls with the visible
contents of what appears to be red tomato sauce and white cheese,
Smith says.
However, she alleges the representations are "false, deceptive and
misleading" because the cheese used is almost entirely imitation
cheese instead of traditional cheese.
"The representations cause consumers to expect the Product contains
a non-de minimis amount of ingredients associated with pizza, such
as cheese," Smith says.
In her lawsuit, Smith turns to multiple dictionary definitions of
pizza to make her case. In the Collins Dictionary, for instance,
pizza is defined as "dough covered with tomatoes, cheese and other
toppings and then baked in an oven."
As a result, when customers are marketed "cheese" and "pizza," they
expect real cheese, Smith argues. She says the pizza rolls use
imitation cheese, which is made by combining vegetable oils, corn
starch and casein, instead of milk solids.
Smith is looking to represent a class of Illinois residents who
bought the product, plus a multi-state Class from Arkansas, Iowa,
Utah, Idaho, Alaska and Montana. She's suing for violations of
state consumer fraud acts, as well as breach of warranty, fraud and
negligent misrepresentation. Smith is seeking certification of the
class action, damages, fees, costs and a jury trial.
Last year, Kraft was hit with a class action lawsuit alleging its
Bagel Bites Mini Bagels With Mozzarella Cheese and Tomato Sauce do
not in fact contain mozzarella cheese or tomato despite a
third-party verification sticker.
he plaintiff is represented by Spencer Sheehan of Sheehan &
Associates.
The General Mills Pizza Rolls Class Action Lawsuit is Lakita Smith
v. General Mills Sales, Case No. 1:22-cv-01529, in the U.S.
District Court Northern District of Illinois Eastern Division [GN]
GENERAL MOTORS: Class Certification Sought in Takata Airbag Suit
----------------------------------------------------------------
In the class action lawsuit captioned as IN RE: Takata Airbag
Products Liability Litigation, Case No. 1:15-md-02599-FAM (S.D.
Fla.), the Plaintiffs ask the Court to enter an order certifying
the following class for a bellwether trial against Defendant
General Motors, LLC (GM):
"All persons who, prior to the date on which the Class
Vehicle was recalled and after July 10, 2009, bought a Class
Vehicle in the state of Florida and (i) still own the Class
Vehicle, or (ii) sold the Class Vehicle after the date on
which the Class Vehicle was recalled, or (iii) following an
accident, whose Class Vehicle was declared a total loss after
the date on which the Class Vehicle was recalled;"
Excluded from the Class are GM; its parents, subsidiaries,
affiliates, officers and directors; any entity in which GM
has a controlling interest; all persons who make a timely
election to be excluded; and all judges assigned to this
litigation and their immediate family members.
In the alternative, if the Court chooses not to utilize a
bellwether process, theg Plaintiffs request that the Court also
certify the following additional classes for the states of Alabama,
California, Georgia, Michigan, Missouri, New Jersey, New York,
Pennsylvania, and Texas:
"All persons who, prior to the date on which the Class
Vehicle was recalled and after July 10, 2009, bought a Class
Vehicle in the state of (e.g., Alabama) and (i) still own the
Class Vehicle, or (ii) sold the Class Vehicle after the date
on which the Class Vehicle was recalled, or (iii) following
an accident, whose Class Vehicle was declared a total loss
after the date on which the Class Vehicle was recalled;"
Excluded from the Class are GM; its parents, subsidiaries,
affiliates, officers and directors; any entity in which GM
has a controlling interest; all persons who make a timely
election to be excluded; and all judges assigned to this
litigation and their immediate family members.
In addition, the Plaintiffs move to be appointed representatives of
the Classes, and to appoint the following attorneys and firms as
Class Counsel under Fed. R. Civ. P. 23(g): Peter Prieto of Podhurst
Orseck, P.A.; Curtis Miner of Colson Hicks Eidson; Todd A. Smith of
Smith LaCien LLP; David Boies of Boies, Schiller & Flexner LLP;
Elizabeth Cabraser of Lieff Cabraser Heimann & Bernstein LLP; James
E. Cecchi of Carella Byrne Cecchi Olstein Brody & Agnello, PC; and
Roland Tellis of Baron & Budd, PC.
The motions relate to economic loss track cases against GM.
Each GM Class Vehicle came equipped with a defective, dangerous
airbag. Because of a uniform design flaw -- the use of the
propellant ammonium nitrate in the airbag’s inflator -- the
defective airbag in each Class Vehicle exposed vehicle occupants to
an unreasonable safety risk.
Far from enhancing safety, the airbags have an unacceptably
dangerous propensity to deploy aggressively or rupture, spraying
metal shrapnel toward vehicle occupants. GM knew about this jarring
defect before the Class Vehicles were sold. But switching to a
safer, defect-free airbag, especially mid-production cycle, would
have been costly and delayed the production and sale of its
vehicles. So, GM stuck with the defective airbags. But it never
disclosed the defect to purchasers during the Class period. Rather,
it uniformly marketed the Class Vehicles as safe, even promoting
the defective airbags as safety features.
GM is an American multinational automotive manufacturing
corporation headquartered in Detroit, Michigan, United States.
A copy of the Plaintiffs' motion to certify class dated March 16,
2022 is available from PacerMonitor.com at https://bit.ly/3j03AZN
at no extra charge.[CC]
The Plaintiffs are represented by:
Peter Prieto, Esq.
Aaron S. Podhurst, Esq.
Stephen F. Rosenthal, Esq.
John Gravante, Esq.
Matthew P. Weinshall, Esq.
Alissa Del Riego, Esq.
PODHURST O RSECK, P.A.
SunTrust International Center
One S.E. Third Ave., Suite 2300
Miami, FL 33131
Telephone: (305) 358-2800
Facsimile: (305) 358-2382
E-mail: pprieto@podhurst.com
apodhurst@podhurst.com
srosenthal@podhurst.com
jgravante@podhurst.com
mweinshall@podhurst.com
adelriego@podhurst.com
GILEAD SCIENCES: Bid to Dismiss Staley Class Action Tossed
----------------------------------------------------------
In the class action lawsuit captioned as Staley et al v. Gilead
Sciences, Inc., et al., Case No. 3:19-cv-02573-EMC (N.D. Cal.), the
Hon. Judge Edward M. Chen entered an order denying the Moving
Defendants' motion to dismiss for lack of standing.
The End-Payor Plaintiffs ("EPPs") have filed an antitrust class
action against, Gilead and Janssen. The EPPs' operative complaint
is located at consolidated class action complaint or ("FAC").
Addendum B of the FAC reflects that one of the named EPPs is Blue
Cross Blue Shield Association ("BCBSA"). Per the addendum, BCBSA is
"a national association of 35 [now 34] independent and locally
operated Blue Cross Blue Shield companies" (also known as the
"Local Blues"). However, BCBSA asserts claims in this litigation on
its own behalf "as the carrier of the Service Benefit Plan, one of
the Federal Employee Health Benefit Plans."
According to BCBSA, it "purchased and/or provided reimbursement for
some or all of the purchase price" for the drugs at issue "at
supracompetitive prices during the Class Period" in a number of
different states.
Currently pending before the Court is a motion to dismiss filed by
Gilead and Janssen ("Moving Defendants"). According to Moving
Defendants, BCBSA lacks standing to bring claims because it is not
a "true" purchaser -- i.e., it did not use its own funds to buy any
drugs and/or, even if it did, it was ultimately reimbursed for
those purchases by the federal government.
Moving Defendants characterize BCBSA as simply a financial
intermediary, comparable to, e.g., pharmacy benefits manager.
Having considered the parties’ briefs and accompanying
submissions, as well as the oral argument of counsel, the Court
denies the motion to dismiss. he Court also denies BCBSA's motion
to strike which is related to the motion to dismiss.
Gilead Sciences is an American biopharmaceutical company
headquartered in Foster City, California, that focuses on
researching and developing antiviral drugs used in the treatment of
HIV/AIDS, hepatitis B, hepatitis C, and influenza, including
ledipasvir/sofosbuvir and sofosbuvir.
A copy of the Court's order dated March 14, 2022 is available from
PacerMonitor.com at vhttps://bit.ly/3wNxysg at no extra charge.[CC]
GOVERNMENT EMPLOYEES: Court Certifies Claimants Class in Lewis Suit
-------------------------------------------------------------------
In the case, SHERRY LEWIS and DAVID V. LEWIS, individually and on
behalf of all others similarly situated, Plaintiffs v. GOVERNMENT
EMPLOYEES INSURANCE COMPANY, Defendant, Civil No. 18-5111 (RBK/MJS)
(D.N.J.), Judge Robert B. Kugler of the U.S. District Court for the
District of New Jersey issued an Opinion:
1. denying the Defendant's Motion to Strike the Testimony and
Report of Lance Kaufman;
2. granting Defendant's Motion to Strike the Testimony and
Report of David Schwickerath; and
3. granting the Plaintiffs' Motion to Certify Class.
I. Introduction
The matter is a purported class action on behalf of GEICO
automobile insurance claimants. The Plaintiffs allege that
Government Employees Insurance Co. ("GEICO") underpays claimants by
not including applicable sales tax, license fees, and title fees
and by imposing arbitrary "condition adjustments" in violation of
New Jersey contract law and state statutes.
The Plaintiffs bring the action on behalf of all those insured
under automobile insurance policies issued in New Jersey by GEICO
whose claim valuations omitted taxes and fees and whose claim
valuations were based upon the values of comparable vehicles that
were reduced by "condition adjustments." They bring the action
under the Class Action Fairness Act of 2005, 28 U.S.C. Section
1332(d) against Defendant GEICO.
II. Background
The named Plaintiffs are New Jersey residents, who leased a
vehicle. GEICO insured the vehicle pursuant to a New Jersey Family
Automobile Insurance Policy. The policy period was Jan. 6, 2018 to
July 6, 2018. The policy required payment on first-party total loss
physical damage claims of "Actual Cash Value" ("ACV"), which the
policy defines as "the replacement cost of the auto or property
less depreciation or betterment." Relating to physical damage
collision coverage, the Policy provides as follows: "Actual cash
value of property will be determined at the time of the loss and
will include an adjustment for depreciation and/or betterment and
for the physical condition of the property." (emphasis in
original). GEICO's website states that if a policy covers total
loss, GEICO will "pay the actual cash value of the vehicle (plus
applicable state fees and taxes) less any deductible."
To replace a vehicle, the policyholder will have to pay sales tax,
title fees, and/or license plate transfer fees. Under New Jersey
law, ACV includes sales tax and specifically requires that, whether
the insurer elects to replace a totaled vehicle or make a cash
settlement for a totaled vehicle, it must include applicable sales
tax in its offer. N.J.A.C.11:30-10.4(a).
Contrary to New Jersey law, its own policy terms, and statements on
its website, GEICO does not include applicable state fees and taxes
as part of its claims payments to total loss insureds in New
Jersey. In 2009, the New Jersey Department of Banking and Insurance
found that GEICO violated New Jersey law for failing to include the
full ACV Sales Tax in its settlement offers to insureds. Further,
GEICO systematically underpays settlement offers by applying
arbitrary "condition adjustments."
When GEICO determines the value of comparable vehicles, it relies
on a valuation report from a third-party company, CCC Information
Services, Inc. The reports purport to contain values for comparable
used vehicles recently sold or for sale in the geographic area of
the insured. The valuation reports reduce the estimated values of
comparable vehicles based on "condition adjustments."
On Jan. 10, 2018, the Plaintiffs' daughter, an additional insured
on the Policy, was involved in a collision resulting in a total
loss of their covered vehicle. GEICO, through its adjuster, issued
an estimate of record that the vehicle was a total loss. Estimated
cost of repair was $17,613.05 (including 6.625% sales tax on a
$16,518.69 estimated repair cost subtotal).
GEICO obtained a valuation report from CCC with an "Adjusted
Vehicle Value" for the vehicle. The CCC report contained a chart
comparing the loss vehicle to three comparable vehicles, listing
the equipment configuration for each. The list price for each
comparable vehicle was $17,325, $18,879, and $17,770. Beneath each
list price, the CCC report lists "adjustments" to the value of each
comparable based on mileage and condition. The CCC report applies a
flat $1,006 reduction to the value of each comparable vehicle,
without an explanation for that number.
GEICO made a cash settlement offer to the Plaintiffs for $18,258,
minus the $1,000 deductible, for a total of $17,258. The Plaintiffs
contacted the adjuster who confirmed that the cash settlement offer
does not include sales tax as part of ACV for total loss claims on
leased vehicles in New Jersey. This is despite policy language
treating "leased" vehicles as "owned auto" for the purpose of
physical damage coverage.
Upon learning that the offer did not include sales tax, the
Plaintiffs requested that the cash settlement include sales tax.
GEICO refused. A Jan. 29, 2018 letter from the adjuster to the
Plaintiffs stated that "The Net Settlement Amount is the Base Value
of your vehicles, plus any applicable fees and adjustments." GEICO
paid $17,258 ($18,258 minus the deductible) to the lienholder VW
Credit Inc. This payment did not include ACV Sales Tax, license
fees, or title fees.
The Plaintiffs bring the action on behalf of themselves and the
following classes: "All individuals insured in New Jersey by GEICO
under a GEICO private passenger vehicle policy who, from the
earliest allowable time to the present: (1) Received a first party
total loss settlement or settlement offer that did not include
applicable sales tax, title fees, or license plate fees; or (2)
Received a first party total loss settlement or settlement offer
based in whole or in part on the price of comparable vehicles
reduced by a condition adjustment.
The Plaintiffs bring counts for (I) breach of contract, (II) breach
of the implied covenant of good faith and fair dealing, (III)
declaratory judgment and injunctive relief, and (IV) New Jersey
Consumer Fraud Act.
The Plaintiffs seek (A) an order certifying the Class, (B)
restitution, (C) injunctive relief to prevent continuation of
illegal practices by GEICO and for other injunctive relief as
proven appropriate, (D) actual, statutory, and punitive damages
according to proof, (E) a declaration that GEICO is required under
policies issued pursuant to Policy Form A-30NJ to pay ACV,
including sales tax, title fees, and license plate transfer fees,
that GEICO may not base its valuation and payment of the
Plaintiffs' and each Class Member's claim on values of comparable
vehicles that have been artificially reduced by an arbitrary and
unjustified "condition adjustment," and that GEICO must itemize and
explain "condition adjustments" applied to comparable vehicles, (F)
attorneys' fees, (G) costs of suit, (H) pre- and post-judgment
interest on any amounts awarded, and (I) other and further relief
as the Court may deem proper.
III. Discussion
A. Daubert Motions
GEICO moves to strike the testimony and report of two of
Plaintiffs' experts, Lance Kaufman and David Schwickerath, because
they are unqualified to provide expert testimony relevant to the
class certification inquiry and because their reports are
unreliable and irrelevant.
1. Testimony and Report of Lance Kaufman
Dr. Lance Kaufman, an economist, proposes a damages calculation
methodology by modifying the CCC to remove the condition adjustment
to the comparable vehicles while leaving in any positive condition
adjustment to the total loss vehicle. Damages in Kaufman's analysis
equal the base vehicle value calculated by CCC less the condition
adjustments on the comparable vehicles, with some other minor
adjustments for taxes, fees, and settlement. In other words, the
"economic harm" is the amount of the condition applied to any
comparable vehicle used in the CCC MVR, plus, potentially, amounts
for taxes and fees.
Judge Kugler is satisfied that Kaufman is qualified and that his
opinion is reliable and relevant. GEICO raises no challenges to
Kaufman's statistical methods.
GEICO's first challenge is that Kaufman's methodology assumes that
the condition adjustments are unlawful. Judge Kugler holds that it
is not a valid basis to exclude an expert's opinion.
GEICO's next challenge is that Kaufman's methodology does not
reliably estimate harm. But,, Juduge Kugler agrees with the
Plaintiffs that Kaufman has demonstrated a reliable methodology to
calculate damages whether the condition adjustment is present and
disclosed or not. This is because the condition deduction is always
the same for all dealer vehicles in each valuation report, making
the condition deduction ascertainable.
GEICO's next challenge is that Kaufman assumes that the condition
adjustment to comparable vehicles injured all class members in the
full amount of the condition adjustment, without accounting for any
reduction in the value of comparable vehicles caused by those
adjustments that could be offset partially or completely by other
steps in the process, such as through condition adjustment to the
loss vehicle. Judge Kugler opines that it is not a basis to
exclude. Kaufman is not obligated to incorporate GEICO's theories
of how harm may have been mitigated or offset by other steps in the
vehicle valuation process. Rather, Kaufman's analysis is directed
to the Plaintiffs' theory that the condition adjustments were
unsupported and unexplained.
GEICO next argues that Kaufman's methodology does not consider any
purported improper conditioning of loss vehicles, only focusing on
the conditioning of comparable vehicles. Same as discussed, a
perceived failure to incorporate GEICO's anticipated defenses into
an analysis is not a basis to exclude, Judge Kugler finds.
GEICO further argues that Kaufman is not qualified because his
experience with CCC systems is limited and because he overly relies
on Plaintiffs' counsel to form his opinions. But Kaufman is not
offering opinions on CCC's valuation process. His reliance on
representations by Plaintiffs' counsel is appropriate. He must make
certain assumptions about liability, at the direction of counsel,
to provide a damages methodology in the event that the factfinder
finds liability.
On relevance, GEICO argues that Kaufman's opinions are not relevant
because they do not amount to a methodology for calculating vehicle
actual cash value or determining whether actual cash value was
underpaid on any claim. This is not a problem because the
Plaintiffs do not seek to ascertain or recover actual cash values
of vehicles. Rather, they seek to recover improper adjustments.
GEICO further argues that Kaufman's opinions are not relevant
because he has not yet calculated damages. At this stage in the
litigation, he is not obligated to do so.
Judge Kugler denies the motion.
2. Testimony and Report of David Schwickerath
GEICO's first challenge is that Schwickerath is not qualified. This
challenge covers several critiques: Schwickerath lacks the specific
industry and legal experience to opine on CCC's financial reporting
practices; Schwickerath makes improper legal opinions; Schwickerath
has no experience with the relevant New Jersey regulations;
Schwickerath has no knowledge of the CCC valuation process. GEICO's
second challenge is that Schwickerath's report does not employ a
reliable methodology. Schwickerath opines that CCC and GEICO failed
to follow financial reporting standards, but he does not explain
why that matters. GEICO's third challenge is that Schwickerath's
opinion is not relevant. Schwickerath testified at his deposition
that he is not giving any opinions on whether class certification
is appropriate.
Judge Kugler opines that whether CCC and GEICO adhered to or did
not adhere to generally accepted accounting principles is not a
question in the case, so comparing their practices to financial
reporting standards is not a reliable method. The Plaintiffs also
have not provided a basis for making the connection between
generally accepted accounting principles and compliance with New
Jersey state law. Moreover, an expert may not opine on what
accounting methods are required or acceptable under New Jersey
state law.
The motion is granted.
B. Class Certification Motion
In opposition to the Plaintiffs' class certification motion, GEICO
argues that the Plaintiffs have no standing, that the class is not
ascertainable, Rule 23(a) is not met, and Rule 23(b) is not met.
Specifically, GEICO argues that the Plaintiffs are not adequate
class representatives, the Plaintiffs' claims are not typical of
the class, individual questions on liability predominate,
individual defenses to liability predominate, no reliable damages
methodology, class treatment is not superior.
Judge Kugler opines that (i) it is a factual dispute about the
merits, not a standing challenge; (ii) the Plaintiffs have
demonstrated that Rule 23(a) requirements -- numerosity,
commonality, typicality, and fair and adequate class representation
-- are met; and (iii) the Plaintiffs have demonstrated that Rule
23(b)(3) requirements -- predominance and ascertainability -- are
met.
Because he certifies the class under Rule 23(b)(3), Judge Kugler
need not address the alternative methods of certification
proposed.
C. 23(g) Class Counsel Appointment
The Plaintiffs have proposed Plaintiffs' counsel, of whom James
Cecchi appears to manage filings and correspondence with the Court
in this matter. Judge Kugler accepts the suggestion. The counsel
has investigated and pursued these claims. The counsel has the
requisite managerial and litigation experience. Judge Kugler sees
no reason to disagree and appoints Plaintiffs' Counsel James Cecchi
as the class counsel.
IV. Conclusion
For the reasons he set forth, Judge Kugler (i) denied Defendant
GEICO's Motion to Strike the Testimony and Report of Lance Kaufman;
(ii) granted the Defendant's Motion to Strike the Testimony and
Report of David Schwickerath; and (iii) granted the Plaintiffs'
Motion to Certify Class. An order follows.
A full-text copy of the Court's March 18, 2022 Opinion is available
at https://tinyurl.com/kdh6jhuz from Leagle.com.
GRAB HOLDINGS: Bernstein Liebhard Discloses Class Action Lawsuit
----------------------------------------------------------------
Bernstein Liebhard LLP announces that a securities class action
lawsuit has been filed on behalf of investors who purchased or
acquired the securities of Grab Holdings Limited between November
12, 2021 and March 3, 2022, inclusive (the "Class Period"). The
lawsuit was filed in the United States District Court for the
Southern District of New York and alleges violations of the
Securities Exchange Act of 1934.
Grab offers a superapp that operates primarily across the
deliveries, mobility, and digital financial services sectors in
Southeast Asia.
On December 1, 2021, Grab became a public entity via a business
combination with Altimeter Growth Corp., a special purpose
acquisition company.
On March 3, 2022, at 7:01 a.m. Eastern, Grab disclosed that its
fourth quarter revenues had declined 44% from the previous quarter
and reported a $1.1 billion loss for the quarter. Grab's Chief
Financial Officer attributed the poor financial results to
"invest[ing] heavily" in driver incentives and stated that it would
take one or two quarters "to get that equilibrium between drivers
and riders, between supply and demand."
On this news, Grab's stock price fell over 37%, to close at $3.28
per share on March 3, 2022.
Throughout the Class Period, Defendants made materially false
and/or misleading statements, as well as failed to disclose
material adverse facts about the Company's business, operations,
and prospects. Specifically, Defendants failed to disclose to
investors: (1) that Grab's driver supply declined during the third
quarter; (2) that, as a result, Grab continued to invest heavily in
driver and consumer incentives to "preemptively recalibrate driver
supply"; (3) that, as a result, the Company's financial results
would be adversely impacted, including, among other things, a
significant decline in revenue; and (4) that, as a result of the
foregoing, Defendants' positive statements about the Company's
business, operations, and prospects were materially misleading
and/or lacked a reasonable basis.
If you wish to serve as lead plaintiff, you must move the Court no
later than May 16, 2022. A lead plaintiff is a representative party
acting on behalf of other class members in directing the
litigation. Your ability to share in any recovery doesn't require
that you serve as lead plaintiff. If you choose to take no action,
you may remain an absent class member.
If you purchased GRAB securities, and/or would like to discuss your
legal rights and options please visit Grab Holdings Limited
Shareholder Class Action Lawsuit or contact Peter Allocco at (212)
951-2030 or pallocco@bernlieb.com.
Since 1993, Bernstein Liebhard LLP has recovered over $3.5 billion
for its clients. In addition to representing individual investors,
the Firm has been retained by some of the largest public and
private pension funds in the country to monitor their assets and
pursue litigation on their behalf. As a result of its success
litigating hundreds of lawsuits and class actions, the Firm has
been named to The National Law Journal's "Plaintiffs' Hot List"
thirteen times and listed in The Legal 500 for ten consecutive
years. [GN]
GREENE PASTURES: Faces Suit Over Violation of Real Property Tax Law
-------------------------------------------------------------------
ARIELE B. SCHARFF, individually and on behalf of all others
similarly situated, Plaintiff v. GREENE PASTURES LLC, Defendant,
Case No. 508837/2022 (N.Y. Sup., Kings Cty., March 28, 2022)
alleges violation of the New York Real Property Tax Law.
According to the complaint, the Defendant is the owner-in-fee of
the apartment building located at 1003 Greene Avenue in Stuyvesant
Heights (the "Building"). The Plaintiff resides in Unit 3J in the
Building. The Building participates in the 421-a Program, which
requires landlords to register their units with the Division of
Housing and Community Renewal, ("DHCR"), and that those apartments
be treated as rent-stabilized.
The New York State Legislature enacted the Real Property Tax Law
421-a, which provides tax incentives for developers who construct
new, market-rate, multi-family housing.
Allegedly, the Defendant knowingly and willfully failed to comply
with the requirements of the 421-a Program by, among other things,
improperly registering its apartments with DHCR.
GREENE PASTURES LLC is engaged in the residential building rental
business. [BN]
The Plaintiff is represented by:
Lucas A. Ferrara, Esq.
Roger A. Sachar Jr., Esq.
NEWMAN FERRARA LLP
1250 Broadway, 27th Floor
New York, NY 10001
Telephone: (212) 619-5400
Email: lferrara@nfllp.com
rsachar@nfllp.com
HNTB CORPORATION: Morel Labor Suit Removed to S.D. California
-------------------------------------------------------------
The case styled MATTHEW MOREL, individually and on behalf of all
others similarly situated v. HNTB CORPORATION and DOES 1-50,
inclusive, Case No. 37-2022-00007029-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 March 28, 2022.
The Clerk of Court for the Southern District of California assigned
Case No. 3:22-cv-00408-AJB-AHG to the proceeding.
The case arises from the Defendant's alleged failure to reimburse
work expenses and unfair business practices in violation of the
California Labor Code and the California's Business and Professions
Code.
HNTB Corporation is an American infrastructure design firm,
headquartered in Kansas City, Missouri. [BN]
The Defendant is represented by:
Mark C. Tatum, Esq.
Laura M. Booth, Esq.
SHOOK, HARDY & BACON L.L.P.
Jamboree Center
5 Park Plaza, Suite 1600
Irvine, CA 92614
Telephone: (949) 475-1500
Facsimile: (949) 475-0016
E-mail: mtatum@shb.com
lbooth@shb.com
HOME CITY ICE: Court Certifies Class in Pansiera Suit
-----------------------------------------------------
In the class action lawsuit captioned as RICK PANSIERA, on behalf
of himself and others similarly-situated, v. THE HOME CITY ICE
COMPANY, Case No. 1:19-cv-01042-TSB (S.D. Ohio), the Hon. Judge
Timothy S. Black entered an order granting plaintiff's motion to
certify a class to pursue declaratory and injunctive relief only:
1. The Plaintiff's motion for class certification is granted
in part and denied in part, as follows:
a. For the purpose of seeking declaratory and injunctive
relief only, the Court hereby certifies the following
class:
"All persons in the United States who purchased an
underweight "7 lb." ice bag from HCI during the
applicable limitations period. Excluded from the
Nationwide Class are persons who made such purchase for
purpose of resale; the defendant, its officers,
directors, employees, legal representatives, successors,
assigns; any person or entity who has or who at any time
during the relevant class period had a controlling
interest in any Defendant; the Judges to whom this case
is assigned and any member of the Judges' immediate
family."
b. The Court denies the Plaintiff's motion for class
certification under Rule 23(b)(3).
Accordingly, Plaintiff's claims for monetary damages
cannot be maintained as a class action.
2. The Court appoints Rick Pansiera as class representative
and his counsel from the law firms of Vorys, Sater,
Seymore and Pease LLP and Santen and Hughes, LPA as class
counsel.
3. In coordination with the parties, the Court shall set a
status conference to discuss, inter alia, "appropriate
notice" to the class pursuant to Fed. R. Civ. P. 23(c)(2)
(A).
4. The Court denies Plaintiff's request for oral argument.
The Court said, "HCI's actions generally apply to the class. For
that reason, declaratory and injunctive relief -- if it is
warranted -- would uniformly benefit the class. Thus, Plaintiff is
entitled to class certification for declaratory and injunctive
relief under Rule 23(b)(2). To summarize the Court's class-oriented
determinations, Plaintiff is not entitled to have a class certified
for monetary damages under Rule 23(b)(3). This is because Plaintiff
has not proposed an ascertainable class. In turn, the Court has no
way to administer a Rule 23(b)(3) class. The Court could not, for
example, guarantee rights to those who would wish to opt-out of a
potential monetary settlement or sufficiently."
Accordingly, Plaintiff's motion for class certification will be
denied with respect to all monetary claims. The Court has
separately considered Plaintiff's request for a class that would
pursue declaratory and injunctive relief under Rule 23(b)(2). Here,
the Plaintiff is entitled to class certification. Plaintiff has
met the Rule 23(a) prerequisites and demonstrated that declaratory
and injunctive relief would uniformly benefit the proposed class,
the Court adds.
From the Court's view, the Plaintiff's request for class
certification for declaratory and injunctive relief applies only to
the proposed nationwide class. The Plaintiff specifically argues
the nationwide class's entitlement to certification for declaratory
and injunctive. But the Plaintiff only analyzes the Indiana
subclass's entitlement to class certification under Rule 23(b)(3),
and makes no mention of Rule 23(b)(2) or declaratory or injunctive
relief to which the subclass may be entitled. Thus, the Court will
certify a nationwide class only.
Home City Ice a Midwest based company that specializes in the
manufacturing and delivery of high quality ice. Through advanced
production and filtration.
A copy of the Court's order dated March 14, 2022 is available from
PacerMonitor.com at https://bit.ly/3uFHKQL at no extra charge.[CC]
HOME DEPOT: Deadline to File Class Cert Bids Reset to July 21
-------------------------------------------------------------
In the class action lawsuit captioned as Barragan, et al., v. Home
Depot U.S.A., Inc., et al., Case No. 3:19-cv-01766 (S.D. Cal.), the
Hon. Judge Andrew G. Schopler entered an order granting the
parties' joint motion to extend the class-certification deadline.
The deadline for class-certification motions limited to the third
cause of action is reset to July 21, 2022, the Court says.
The nature of suit states Other Labor Litigation.
Home Depot is a home improvement retailer in the United States,
supplying tools, construction products, appliances, and services.
The company is headquartered in incorporated Cobb County, Georgia,
with an Atlanta mailing address.[CC]
HOMOLOGY MEDICINES: Pomerantz Law Discloses Class Action
--------------------------------------------------------
Pomerantz LLP announces that a class action lawsuit has been filed
against Homology Medicines, Inc. ("Homology" or the "Company")
(NASDAQ: FIXX) and certain of its officers. The class action,
filed in the United States District Court for the Central District
of California, and docketed under 22-cv-01968, is on behalf of a
class consisting of all persons and entities other than Defendants
that purchased or otherwise acquired Homology securities between
June 10, 2019 and February 18, 2022, both dates inclusive (the
"Class Period"), seeking to recover damages caused by Defendants'
violations of the federal securities laws and to pursue remedies
under Sections 10(b) and 20(a) of the Securities Exchange Act of
1934 (the "Exchange Act") and Rule 10b-5 promulgated thereunder,
against the Company and certain of its top officials.
If you are a shareholder who purchased or otherwise acquired
Homology securities during the Class Period, you have until May 24,
2022 to ask the Court to appoint you as Lead Plaintiff for the
class. A copy of the Complaint can be obtained at
www.pomerantzlaw.com. To discuss this action, contact Robert S.
Willoughby at newaction@pomlaw.com or 888.476.6529 (or
888.4-POMLAW), toll-free, Ext. 7980. Those who inquire by e-mail
are encouraged to include their mailing address, telephone number,
and the number of shares purchased.
Homology, a genetic medicines company, focuses on transforming the
lives of patients suffering from rare genetic diseases. The
Company's lead product candidate is HMI-102, which is in Phase I/II
pheNIX clinical trial, a gene therapy for the treatment of
phenylketonuria (PKU) in adults (the "HMI-102 Trial").
On June 10, 2019, Homology issued a press release announcing that
it had commenced enrollment of the HMI-102 Trial.
The complaint alleges that throughout the Class Period, Defendants
made materially false and misleading statements regarding the
Company's business, operations, and compliance policies.
Specifically, Defendants made false and/or misleading statements
and/or failed to disclose that: (i) the Company had overstated
HMI-102's efficacy and risk mitigation; (ii) accordingly, it was
unlikely that the Company would be able to commercialize HMI-102 in
its present form; and (iii) as a result, the Company's public
statements were materially false and misleading at all relevant
times.
On July 21, 2020, Mariner Research ("Mariner") published a report
questioning statements by Homology and its officers about the
efficacy of HMI-102, the Company's lead product candidate for
treatment of phenylketonuria. Mariner focused on Homology's HMI-102
dose escalation pheNIX trial, concluding that the Company concealed
data showing HMI-102's lack of efficacy and indicating that the
program was unlikely to proceed to commercialization. Among other
evidence, Mariner cited an email from Homology's Chief
Communications Officer appearing to indicate the Company's
awareness that a HMI-102 high dose patient had adverted to the
adverse efficacy issue in a social media post during April 2020.
On this news, Homology's stock price fell $1.71 per share, or
10.38%, over the following three trading days, closing at $14.77
per share on July 24, 2020.
Then, on February 18, 2022, Homology issued a press release
disclosing that "the U.S. Food and Drug Administration has notified
the company that its pheNIX gene therapy trial of HMI-102 in adults
with phenylketonuria has been placed on clinical hold due to the
need to modify risk mitigation measures in the study in response to
observations of elevated liver function tests" and that "[t]he
Company expects to receive an official clinical hold letter within
30 days."
On this news, Homology's stock price fell $1.26 per share, or
32.64%, to close at $2.60 per share on February 22, 2022.
Pomerantz LLP, with offices in New York, Chicago, Los Angeles,
Paris, and Tel Aviv, is acknowledged as one of the premier firms in
the areas of corporate, securities, and antitrust class litigation.
Founded by the late Abraham L. Pomerantz, known as the dean of the
class action bar, Pomerantz pioneered the field of securities class
actions. Today, more than 85 years later, Pomerantz continues in
the tradition he established, fighting for the rights of the
victims of securities fraud, breaches of fiduciary duty, and
corporate misconduct. The Firm has recovered numerous
multimillion-dollar damages awards on behalf of class members. See
www.pomlaw.com [GN]
I.C. SYSTEM: $11.8K in Attys.' Fees & Costs Awarded in Hancock Suit
-------------------------------------------------------------------
In the case, ROXANNE HANCOCK, on behalf of herself and all others
similarly situated, Plaintiffs v. I.C. SYSTEM, INC.; AND JOHN DOES
1-25, Defendants, Case No. 21-CV-7085 (RA) (RWL), Judge Robert W.
Lehrburger of the U.S. District Court for the Southern District of
New York awarded the Plaintiff attorney's fees in the amount of
$11,297 and costs in the amount of $495.76.
I. Background
The decision addresses the Plaintiff's application for attorney's
fees and costs following acceptance of an offer of judgment in the
action brought pursuant to the Fair Debt Collection Protection Act,
15 U.S.C. Section 1692, et seq. ("FDCPA"). The Plaintiff filed this
case after having received a letter from Defendant I.C. System
("ICS") seeking to collect a debt of $59 owed to Spectrum for
unreturned equipment. Hancock claimed that she owed Spectrum an
amount less than $59 and that ICS' letter failed to properly inform
her of consequences of disputing the debt.
As revealed in discovery, Hancock had documentation showing that
she had returned the equipment to Spectrum before the account was
referred to ICS for collection. Although Hancock could have
provided the same documentation to ICS or Spectrum after receiving
ICS' letter but before filing suit, she did not do so.
Ms. Hancock filed her case as a class action on Aug. 22, 2021. ICS
answered the complaint, and the parties proceeded to discovery.
Hancock served interrogatories, document requests, and requests to
admit. A substantial number of the requests focused on class
discovery. Hancock also insisted on receiving class related
information from ICS as a condition to engage in meaningful
settlement negotiations.
On Jan. 18, 2022, ICS served an offer of judgment pursuant to Fed.
R. Civ. P. 68. Specifically, it offered to have judgment entered
against it in the amount of $1,050 "arising from the Plaintiff's
individual claims against the Defendant" and an "additional amount
for reasonable attorney's fees and taxable costs incurred by the
Plaintiff in an amount to be determined by agreement of the
parties, and if the parties cannot agree, by the Court upon Motion
by the Plaintiff."
Ms. Hancock accepted the offer on Jan. 26, 2022, and the Court
entered judgment the next day. The parties could not agree on the
amount of attorney's fees. Accordingly, the Plaintiff filed the
instant motion, seeking attorney's fees in the amount of
$16,004.32, which is now fully briefed. ICS asserts that a
reasonable attorney's fees award in the case should be $4,370.99.
The matter was referred to me for resolution of a non-dispositive
motion on Feb. 3, 2022.
II. Discussion
A. Hourly Rates
Judge Lehrburger begins with assessment of the hourly rates sought
by Hancock. Hancock was represented in the action by Jones, Wolf &
Kapasi, LLC and seeks reimbursement of fees for the work of two
attorneys from that firm: Joseph K. Jones, who billed at an hourly
rate of $575, and Benjamin J. Wolf, who billed at an hourly rate of
$475. The billing records submitted reflect no tasks performed by
other attorneys, paralegals, or administrative staff.
Judge Lehrburger finds reasonable hourly rates for the lodestar
calculation to be $450 for Jones and $400 for Wolf (who has less
experience than Jones).
B. Hours Worked
The time records submitted reflect that Jones and Wolf together
worked 32.28 hours on the case. Most of the work was performed by
Wolf, who expended 25.68 hours to Jones' 6.7 hours. Tasks included,
among others, drafting the complaint, reviewing and drafting
correspondence, drafting and responding to discovery requests, and
seeking a protective order. ICS asserts that the hours claimed
should be reduced by 50% because the matter is a "stock FDCPA case"
that used "generic, cut and paste requests."
Judge Lehrburger agrees with that characterization to some extent
in that most of the requests appear to be ones that could be used
for almost any FDCPA case and adapted simply by swapping out names
of the parties. Nonetheless, he has no basis to conclude that the
time spent, which overall is modest, was over-stated or
unreasonable.
C. Adjustment To Hours
Judge Lehrburger does find, however, that an adjustment of hours is
warranted. He agrees with ICS that a reduction should be made
because a substantial part of the case was geared to a class
action, which never came to fruition and for which no payment was
made as part of the offer of judgment. Hancock and her counsel
should not be rewarded for time spent on class-action work that
proved to be of little or no relevance. Taking into account the
adjustments to the hourly rates and the number of hours, the total
reasonable fee award is (5.7 × $450) + (21.83 × $400) = $11,297.
D. Costs
The Plaintiff seeks $495.76 in costs consisting of the court filing
fee, service of the complaint and summons, and postage. Those
expenses are routinely recoverable as litigation costs. ICS does
not challenge any cost amounts, and Judge Lehrburger finds them to
be recoverable. Accordingly, Hancock is awarded $495.76 in costs.
III. Conclusion
For the foregoing reasons, Judge Lehrburger awarded the Plaintiff
$11,297 in attorney's fees and $495.76 in costs, for a total award
of $11,792.76. To the extent not expressly discussed, he has
considered the parties' arguments and found them to be without
merit.
A full-text copy of the Court's March 18, 2022 Decision & Order is
available at https://tinyurl.com/y45aca67 from Leagle.com.
INGRID & ISABEL: CMP & Sched Order Entered in Cruz Class Suit
-------------------------------------------------------------
In the class action lawsuit captioned as SHAEL CRUZ, Individually,
and On Behalf of All Others Similarly Situated, v. INGRID & ISABEL,
LLC, Case No. 1:21-cv-09999-LJL (S.D.N.Y.), the Hon. Judge Lewis J.
Liman entered a case management plan and scheduling order as
follows:
-- Any motion to amend or to join April 5, 2022
additional parties shall be
filed no later than:
-- All fact discovery is to be July 6, 2022
completed no later than:
-- Initial requests for production April 5, 2022
of documents shall be served by:
-- Depositions shall be completed by: May 6, 2022
-- Requests to Admit shall be May 20, 2022
served no later than:
-- Any motion for summary judgment Sept. 12, 2022
must be filed no later than:
A copy of the Court's order dated March 14, 2022 is available from
PacerMonitor.com at https://bit.ly/38g810E at no extra charge.[CC]
The Plaintiff is represented by:
Joseph H. Mizrahi, Esq.
JOSEPH H. MIZRAHI LAW, P.C.
Telephone: (917) 299-6612
E-mail: JOSEPH@JMIZRAHILAW.COM
The Defendant is represented by:
Christopher Tom, Esq.
3315 Olde Winter Trl
Youngstown, OH 44514-2895
E-mail: christopher.d.tom@gmail.com
INMAR INC: Court Denies Bid for Summary Judgment in Mr. Dee's Suit
------------------------------------------------------------------
In the case, MR. DEE'S INC., RETAIL MARKETING SERVICES, INC., on
behalf of themselves and all others similarly situated, and
CONNECTICUT FOOD ASSOCIATION, Plaintiffs v. INMAR, INC., CAROLINA
MANUFACTURER'S SERVICES, INC., CAROLINA SERVICES, and CAROLINA
COUPON CLEARING, INC., Defendants, Case No. 1:19CV141 (M.D.N.C.),
Judge William L. Osteen, Jr., of the U.S. District Court for the
Middle District of North Carolina denied the Motion for Summary
Judgment filed by Defendants Inmar, Inc., Carolina Manufacturer's
Services, Inc., Carolina Services, and Carolina Coupon Clearing,
Inc.
I. Background
Plaintiff Mr. Dee's manufactures food products. It issues coupons
to customers and purchases coupon processing services. Plaintiffs
Retail Marketing Services, Inc. and Connecticut Food Association
are entities who purchase coupon processing services for retailers
and members.
Defendant Inmar sells coupon processing services to manufacturers.
Its subsidiary, Defendant Carolina Manufacturer's Services, Inc.
("CMS"), sells coupon processing services to manufacturers. Inmar's
subsidiaries, Defendants Carolina Coupon Clearing, Inc. ("CCC") and
Carolina Services ("CS"), sell coupon processing services to
retailers. Inmar's president during the relevant time period was
Robert Carter.
Non-party International Outsourcing Services, LLC ("IOS"), formerly
known as International Data, LLC, acted as a processor in the
coupon redemption process. IOS was initially a named party. In
November 2008, these proceedings were stayed on a motion by IOS
pending resolution of a criminal case against its former officers
and employees. IOS filed a Suggestion of Bankruptcy in 2009. IOS
was later dismissed from these proceedings.
The action was initially brought in the Eastern District of
Wisconsin in 2008. In 2019, the case was transferred to this
district. The Plaintiffs amended their Complaint three times. The
Defendants filed an Answer to the Third Amended Complaint.
On Aug. 2, 2021, the Defendants filed a Motion for Summary
Judgment, and accompanying brief, the Plaintiffs responded, and the
Defendants replied.
On April 11, 2001, Inmar and IOS entered into a series of related
agreements: (1) an Asset Purchase Agreement; (2) a Proprietary Data
Transfer Agreement; (3) a Coupon Sub-Processing Agreement; and (4)
a Joint Marketing Agreement. The Asset Purchase Agreement allowed
CMS to purchase all contracts for coupon processing between IOS
subsidiary Consumer Response Company and its manufacturer
customers. The Joint Marketing Agreement combined IOS and Inmar's
marketing efforts to solicit contracts with large mass
merchandisers. The Proprietary Data Transfer Agreement established
a "One-Count" program between IOS and CMS. Finally, the Coupon
Sub-Processing Agreement allowed CCC to "obtain an additional
flexible means of subprocessing coupons received by CCC from
certain of its Retail Stores in order to satisfy the Retail Stores'
needs and expectations during peak periods of usage of coupon
promotion." Under the Coupon Sub-Processing Agreement, IOS would
conduct the retail coupon processing services for CCC.
After these agreements, Inmar and IOS's fees increased. IOS' CEO
Balsiger maintained that IOS' fees were increasing prior to the
execution of these agreements. Inmar's president denies that there
were ever any discussions between IOS and Inmar about fixing
shipping fees. During IOS CEO Chris Balsiger's criminal trial, he
testified that he entered into a joint venture with Inmar "to head
off a price war on coupons" which "allowed them to escalate their
freight revenue." However, when deposed for the case, Balsiger
denied discussions about fixing shipping fees.
II. Analysis
The Defendants move for summary judgment, contending that there is
no basis in the record on which a jury could infer that Inmar and
IOS conspired to fix shipping fees. They emphasize that the case
rests entirely on circumstantial evidence, and that "antitrust law
limits the range of permissible inferences from ambiguous evidence
in a Section 1 case."
A. Market and Customer Allocation
Judge Osteen first addresses the Plaintiffs' argument that the
Defendants have failed to move for summary judgment on market and
customer allocation. The Plaintiffs argue that the Defendants "do
not seek summary judgment on, and fail to carry their initial
burden on, market and customer allocation, and other
anticompetitive restraints." In reply, the Defendants assert that
the Third Amended Complaint "is rife with allegations that the
Defendants conspired to fix prices" and "having continually
'narrowed' their claims over the 14-year pendency, it is
disingenuous for the Plaintiffs to seek to benefit from a
contention that the Defendants did not address the remnant of their
ever-shrinking case."
Judge Osteen opines that although the Defendants make passing
references to the Plaintiffs' allegation regarding market and
customer allocation, the Defendants "fail to develop any argument
or cite any authority in support of their request." Because a price
fixing agreement and a market allocation agreement are distinct
types of unlawful restraints on trade, the Defendants may be liable
for violating Section 1 of the Sherman Act because of a price
fixing agreement, a market or customer allocation agreement, or
both.
Given that the Defendants provided no argument to support the Court
granting summary judgment for them on the market and customer
allocation agreement allegations, it would be inappropriate for the
Court to find that issue no longer remains. Therefore, Judge Osteen
finds the Plaintiffs' allegation of a Section 1 violation because
of customer and market allocation agreements remains, and that
issue must be resolved at trial.
B. Price Fixing
Because the Defendants failed to properly move for summary judgment
on the issue of an anticompetitive agreement to allocate customers
and markets, Judge Osteen focuses the remainder of its analysis on
the Defendants' argument for summary judgment on allegations of
price fixing.
In determining whether a genuine dispute of material fact exists, a
court considers facts that could "be presented in a form that would
be admissible in evidence" at trial. It is true that Balsiger's
criminal trial transcripts would be inadmissible hearsay at a trial
in the case because the Plaintiffs likely could not show that
Balsiger is unavailable to testify, and even if he were
unavailable, the Defendants did not have "an opportunity and
similar motive to develop" Balsiger's testimony at his criminal
trial.
However, Judge Osteen sees no reason why the contents of Balsiger's
criminal trial testimony could not "be presented in a form that
would be admissible in evidence" at trial in the case. The
Plaintiffs presumably could subpoena Balsiger for live testimony or
take a trial deposition and introduce that testimony. For that
reason, Judge Osteen finds he may properly consider Balsiger's
criminal trial testimony in a manner similar to any other sworn
affidavit or declaration in analyzing whether to grant summary
judgment on a Sherman Act Section 1 claim based on price fixing.
First, Judge Osteen finds that Balsiger's testimony reflects a
clear intent on the part of IOS to fix prices but does not reflect
such intent on the part of Inmar. Although Balsiger's testimony
could be interpreted as evidence Inmar entered the agreement with
the intent to raise shipping fees, Judge Osteen declines at this
juncture to make such a finding; however, because the Court will
find that the Plaintiffs have established a genuine dispute of
material fact as to whether there is circumstantial evidence of a
conspiracy to fix prices, he need not determine whether there is
direct evidence of a price-fixing conspiracy.
Second, Judge Osteen finds (i) the Plaintiffs have offered evidence
of parallel increases in shipping fees after the alleged agreement
between IOS and Inmar; (ii) the Plaintiffs have sufficiently shown
that the market for coupon processing made it such that the
Defendants had a motive to enter a price fixing conspiracy; (iii)
the Plaintiffs have shown there is evidence that Defendants may
have acted contrary to their economic self-interest; and (iv) the
Plaintiffs have offered sufficient evidence tending to exclude the
possibility of independent action.
Finally, Judge Osteen finds that the Plaintiffs have offered
sufficient evidence to establish that genuine issues of material
fact exist as to whether the Defendants violated Section 1 of the
Sherman Act. The Plaintiffs have come forward with specific facts
showing that there was an agreement between Inmar and IOS to fix
prices, which created an unreasonable restraint on trade.
Therefore, the Defendants' motion for summary judgment is denied.
III. Conclusion
For the foregoing reasons, Judge Osteen denied the Defendants'
Motion for Summary Judgment.
A full-text copy of the Court's March 18, 2022 Memorandum Opinion &
Order is available at https://tinyurl.com/4cf6f6bn from
Leagle.com.
JP MORGAN: Court Refuses to Certify Rule 23 Class in Nypl Suit
--------------------------------------------------------------
In the case, JOHN NYPL, et al., Plaintiffs, v. JP MORGAN CHASE &
Co., et al., Defendants, Case No. 15 Civ. 9300 (LGS) (S.D.N.Y.),
Judge Lorna G. Schofield of the U.S. District Court for the
Southern District of New York issued an Opinion and Order:
1. denying the Plaintiffs' motion for Rule 23 class
certification;
2. granting in part and denying in part the Defendants' motion
to exclude the report and testimony of the Plaintiffs'
expert, Carl S. Saba; and
3. denying the Plaintiffs' motion to exclude the rebuttal
report and testimony of the Defendants' expert, Bruce A.
Strombom.
I. Background
The case concerns the impact of an alleged conspiracy among banks
to fix prices in the foreign exchange ("FX") market on consumers'
purchases of foreign currency with U.S. Dollars within the United
States.
The Plaintiffs, a group of individuals and businesses, allege that
they purchased foreign currency from Defendants Bank of America,
N.A., Bank of America Corporation, Barclays Capital, Inc., Barclays
PLC, Citibank, N.A., Citicorp, Citigroup, Inc., HSBC Bank (USA),
N.A., HSBC North American Holdings Inc., JP Morgan Chase & Co.,
JPMorgan Chase Bank, N.A., Royal Bank of Scotland, plc, and UBS AG
in the consumer retail market at manipulated rates.
The Plaintiffs allege that the Defendants conspired to manipulate
certain benchmark exchange rates that determined the retail prices
they paid for foreign currency. They base this allegation on plea
agreements and government orders involving certain Defendants.
Those plea agreements and the Plaintiffs' allegations focus on two
benchmarks: The WMR London closing fix ("the WMR fix") and the
European Central Bank fix (the "ECB fix").
The Defendants have presented uncontroverted evidence that they did
not calculate retail exchange rates for consumers, such as the
Plaintiffs, based on the WMR and ECB fix benchmarks. Instead, each
Defendant's rate was calculated by, or using data from, a
third-party.
The Plaintiffs' claims in the action are limited to transactions
"involving foreign currency purchased with U.S. Dollars and
physically received at the Defendants' retail branches within the
United States." Their claims do not include "wire transfers" or
"credit, debit and ATM card" transactions.
II. Discussion
The Plaintiffs seek to certify a nationwide class of "consumers and
businesses in the United States who directly purchased
supracompetitive foreign currency at Benchmark exchange rates from
Defendants and their co-conspirators for their own end use" from
Jan. 1, 2007, to Dec. 31, 2013.
A. Daubert Motions
The Plaintiffs and the Defendants have each submitted an expert
report in support of their respective positions on whether the
putative class should be certified. In sum, the Plaintiffs' expert
opines that causation and damages can be proved on a class-wide
basis, thereby supporting their argument that common issues
predominate as required for class certification under Rule
23(b)(3). The Defendants' expert critiques the Plaintiffs' expert
and opines that damages and the related issue of injury-in-fact
cannot be proved on a class-wide basis. Both the Plaintiffs and the
Defendants have filed a Daubert motion to exclude the opinions of
the other's expert.
1. Plaintiffs' Expert Carl S. Saba
The Defendants' motion to exclude the opinions of the Plaintiffs'
expert witness Carl S. Saba is granted in part and denied in part.
Saba offers two opinions in support of class certification. First,
Mr. Saba offers a causation opinion based on regression analyses --
that the FX Spot Market price, which Defendants allegedly
manipulated, closely correlates with, and directly impacted, the
end-user prices that class members paid on any given day for
foreign currency. This opinion is in support of the Plaintiff's
argument that causation and injury can be proved on a class-wide
basis. Because the regression analyses are based on data untethered
to the facts of this case and Plaintiffs offer no basis to justify
this shortcoming, the Saba report's regression analyses are not
considered.
Second, Mr. Saba opines that the aggregate amount of damages to
class members can be determined on a class-wide basis by
multiplying the overcharge Defendants caused by the volume of
affected commerce. Because Mr. Saba's opinion is helpful in framing
critical issues on this class certification motion -- namely
whether there is a viable methodology for Plaintiffs to use common,
class-wide proof to show injury-in-fact and damages -- his damages
opinion is not excluded. That does not mean that his opinion is
accepted as sufficient.
2. Defendants' Rebuttal Expert Dr. Bruce A. Strombom
The Plaintiffs' motion to exclude the testimony of the Defendants'
rebuttal expert witness Dr. Bruce A. Strombom is denied. Dr.
Strombom offers two relevant opinions -- first, that Mr. Saba fails
to establish that Plaintiff can use class-wide proof to show
causation and injury. Second, Dr. Strombom challenges Mr. Saba's
opinion that damages can be shown using class-wide proof for
several reasons. One of these is that Mr. Saba "fails to account
for netting and offsetting redemptions."
Judge Schofield opines that the Plaintiffs' argument that the
netting of damages is contrary to principles of antitrust law and
that Dr. Strombom is not qualified for asserting otherwise is
incorrect. That plaintiffs in an antitrust action may recover only
for their net injury is a common-sense and well-established
principle. The Plaintiffs' remaining arguments have no relation to
Dr. Strombom's report, Rule 702 or the Daubert standard. Hence, the
Plaintiffs' challenges to Dr. Strombom's opinions are without
merit, and their motion to exclude his opinions is denied.
B. Article III Standing
The Defendants argue that none of the four named Plaintiffs have
demonstrated Article III standing. Judge Schofield opines that
named Plaintiffs Lisa McCarthy and Valarie Jolly have sufficiently
shown for this stage of the litigation that they have Article III
standing to assert the two remaining causes of action -- price
fixing in violation of Section 1 of the Sherman Act and its
California counterpart, the Cartwright Act. Because only one named
plaintiff must have standing with respect to each claim, the
standing of Plaintiffs Rubinsohn and Nypl is not addressed. The
Court previously dismissed the California Unfair Competition Law
claim because Nypl, the only Plaintiff to assert that claim, lacks
standing to assert it.
C. Class Certification
The Plaintiffs seek to certify a class under Federal Rule of Civil
Procedure 23(b)(3) of all consumers and businesses in the United
States who directly purchased supracompetitive foreign currency at
Benchmark exchange rates from Defendants and their co-conspirators
for their own end use at least since Jan. 1, 2007, to Dec. 31,
2013.
Judge Schofield denied class certification because the Plaintiffs
have not shown that common questions will predominate over
individual questions, and because the proposed class is a
"fail-safe class." She finds that (i) the Plaintiffs cannot
establish that class members were injured on any particular day
without a day-by-day individualized analysis; (ii) the Plaintiffs
offer no method of proving on a generalized basis who was or was
not overcharged; (iii) the class the Plaintiffs propose is
indeterminate not only as to the days on which trader-based
manipulation occurred, but also the direction of manipulation on
those days; (iv) the Plaintiffs have offered no basis for using
common proof to calculate the net damages suffered by putative
class member; and (v) the Plaintiff has offered no means to
determine class membership based on common evidence or in some
other administratively feasible way.
III. Conclusion
For the foregoing reasons, Judge Schofield denied the Plaintiffs'
motion for Rule 23 class certification. She granted in part and
denied in part the Defendants' Daubert motion. She denied the
Plaintiffs' Daubert motion. The request for oral argument is denied
as moot. The Clerk of Court is directed to close the motions at
Dkt. Nos. 716, 731 and 745.
A full-text copy of the Court's March 18, 2022 Opinion & Order is
available at https://tinyurl.com/yckujmkh from Leagle.com.
JUUL LABS: Bassett Unified Sues Over Deceptive E-Cigarette Ads
--------------------------------------------------------------
BASSETT UNIFIED SCHOOL DISTRICT, on behalf of itself and all others
similarly situated, Plaintiff v. JUUL LABS, INC. F/K/A PAX LABS,
INC.; JAMES MONSEES; ADAM BOWEN; NICHOLAS PRITZKER; HOYOUNG HUH;
RIAZ VALANI; ALTRIA GROUP, INC.; ALTRIA CLIENT SERVICES LLC; ALTRIA
GROUP DISTRIBUTION COMPANY; and PHILIP MORRIS USA, INC.,
Defendants, Case No. 3:22-cv-01956-WHO (N.D. Cal., March 28, 2022)
is a class action against the Defendants for negligence, gross
negligence, and violations of the Public Nuisance Law and the
Racketeer Influenced and Corrupt Organizations Act.
According to the complaint, the Defendants used three tactics to
maintain market dominance in the cigarette industry: (1) product
design to maximize addiction, (2) mass deception, and (3) targeting
of youth. Defendants JUUL Labs and Adam Bowen designed an
e-cigarette device allegedly intended to create and sustain
addiction, but without the stigma associated with cigarettes and
promoted them to vulnerable young population. JUUL Labs and other
Defendants developed and implemented a marketing scheme to mislead
users into believing that JUUL products contained less nicotine
than they actually do and were healthy and safe. The Defendants
enticed newcomers to nicotine with kid-friendly flavors without
ensuring the flavoring additives were safe for inhalation. The
Defendants targeted the youth market by placing vaporized campaigns
on youth-oriented websites and media and using influencers and
affiliates to amplify their message to a teenage audience. The
Defendants have successfully caused more young people to start
using e-cigarettes, creating a youth e-cigarette epidemic and
public health crisis, says the suit.
Bassett Unified School District is a unified school district with
its offices located at 904 North Willow Avenue in La Puente,
California.
JUUL Labs, Inc., formerly known as Pax Labs, Inc., is an American
electronic cigarette company, with its principal place of business
in San Francisco, California.
Altria Group, Inc. is a producer of tobacco products, with its
principal place of business in Richmond, Virginia.
Philip Morris USA, Inc. is a wholly-owned subsidiary of Altria
Group, Inc., with its principal place of business in Richmond,
Virginia.
Altria Client Services LLC is a tobacco company, with its principal
place of business in Richmond, Virginia.
Altria Group Distribution Company is a tobacco company, with its
principal place of business in Richmond, Virginia. [BN]
The Plaintiff is represented by:
James Frantz, Esq.
William B. Shinoff, Esq.
FRANTZ LAW GROUP, APLC
402 W. Broadway, Ste. 860
San Diego, CA 92101
Telephone: (619) 233-5945
Facsimile: (619) 525-7672
E-mail: jpf@frantzlawgroup.com
wshinoff@frantzlawgroup.com
JUUL LABS: Causes Youth E-Cigarette Crisis, Solana Beach Claims
---------------------------------------------------------------
SOLANA BEACH SCHOOL DISTRICT, on behalf of itself and all others
similarly situated, Plaintiff v. JUUL LABS, INC. F/K/A PAX LABS,
INC.; JAMES MONSEES; ADAM BOWEN; NICHOLAS PRITZKER; HOYOUNG HUH;
RIAZ VALANI; ALTRIA GROUP, INC.; ALTRIA CLIENT SERVICES LLC; ALTRIA
GROUP DISTRIBUTION COMPANY; and PHILIP MORRIS USA, INC.,
Defendants, Case No. 3:22-cv-01960 (N.D. Cal., March 28, 2022) is a
class action against the Defendants for negligence, gross
negligence, and violations of the Public Nuisance Law and the
Racketeer Influenced and Corrupt Organizations Act.
According to the complaint, the Defendants used three tactics to
maintain market dominance in the cigarette industry: (1) product
design to maximize addiction, (2) mass deception, and (3) targeting
of youth. Defendants JUUL Labs and Adam Bowen designed an
e-cigarette device allegedly intended to create and sustain
addiction, but without the stigma associated with cigarettes and
promoted them to vulnerable young population. JUUL Labs and other
Defendants developed and implemented a marketing scheme to mislead
users into believing that JUUL products contained less nicotine
than they actually do and were healthy and safe. The Defendants
enticed newcomers to nicotine with kid-friendly flavors without
ensuring the flavoring additives were safe for inhalation. The
Defendants targeted the youth market by placing vaporized campaigns
on youth-oriented websites and media and using influencers and
affiliates to amplify their message to a teenage audience. The
Defendants have successfully caused more young people to start
using e-cigarettes, creating a youth e-cigarette epidemic and
public health crisis, says the suit.
Solana Beach School District is a unified school district with its
offices located at 309 North Rios Avenue in Solana Beach,
California.
JUUL Labs, Inc., formerly known as Pax Labs, Inc., is an American
electronic cigarette company, with its principal place of business
in San Francisco, California.
Altria Group, Inc. is a producer of tobacco products, with its
principal place of business in Richmond, Virginia.
Philip Morris USA, Inc. is a wholly-owned subsidiary of Altria
Group, Inc., with its principal place of business in Richmond,
Virginia.
Altria Client Services LLC is a tobacco company, with its principal
place of business in Richmond, Virginia.
Altria Group Distribution Company is a tobacco company, with its
principal place of business in Richmond, Virginia. [BN]
The Plaintiff is represented by:
James Frantz, Esq.
William B. Shinoff, Esq.
FRANTZ LAW GROUP, APLC
402 W. Broadway, Ste. 860
San Diego, CA 92101
Telephone: (619) 233-5945
Facsimile: (619) 525-7672
E-mail: jpf@frantzlawgroup.com
wshinoff@frantzlawgroup.com
JUUL LABS: Causes Youth E-Cigarette Crisis, Teton School Suit Says
------------------------------------------------------------------
TETON SCHOOL DISTRICT, on behalf of itself and all others similarly
situated, Plaintiff v. JUUL LABS, INC. F/K/A PAX LABS, INC.; JAMES
MONSEES; ADAM BOWEN; NICHOLAS PRITZKER; HOYOUNG HUH; RIAZ VALANI;
ALTRIA GROUP, INC.; ALTRIA CLIENT SERVICES LLC; ALTRIA GROUP
DISTRIBUTION COMPANY; and PHILIP MORRIS USA, INC., Defendants, Case
No. 3:22-cv-01918 (N.D. Cal., March 25, 2022) is a class action
against the Defendants for negligence, gross negligence, and
violations of the Public Nuisance Law and the Racketeer Influenced
and Corrupt Organizations Act.
According to the complaint, the Defendants used three tactics to
maintain market dominance in the cigarette industry: (1) product
design to maximize addiction, (2) mass deception, and (3) targeting
of youth. Defendants JUUL Labs and Adam Bowen designed an
e-cigarette device allegedly intended to create and sustain
addiction, but without the stigma associated with cigarettes and
promoted them to vulnerable young population. JUUL Labs and other
Defendants developed and implemented a marketing scheme to mislead
users into believing that JUUL products contained less nicotine
than they actually do and were healthy and safe. The Defendants
enticed newcomers to nicotine with kid-friendly flavors without
ensuring the flavoring additives were safe for inhalation. The
Defendants targeted the youth market by placing vaporized campaigns
on youth-oriented websites and media and using influencers and
affiliates to amplify their message to a teenage audience. The
Defendants have successfully caused more young people to start
using e-cigarettes, creating a youth e-cigarette epidemic and
public health crisis, says the suit.
Teton School District is a unified school district with its offices
located at 481 North Main Street in Driggs, Idaho.
JUUL Labs, Inc., formerly known as Pax Labs, Inc., is an American
electronic cigarette company, with its principal place of business
in San Francisco, California.
Altria Group, Inc. is a producer of tobacco products, with its
principal place of business in Richmond, Virginia.
Philip Morris USA, Inc. is a wholly-owned subsidiary of Altria
Group, Inc., with its principal place of business in Richmond,
Virginia.
Altria Client Services LLC is a tobacco company, with its principal
place of business in Richmond, Virginia.
Altria Group Distribution Company is a tobacco company, with its
principal place of business in Richmond, Virginia. [BN]
The Plaintiff is represented by:
James Frantz, Esq.
William B. Shinoff, Esq.
FRANTZ LAW GROUP, APLC
402 W. Broadway, Ste. 860
San Diego, CA 92101
Telephone: (619) 233-5945
Facsimile: (619) 525-7672
E-mail: jpf@frantzlawgroup.com
wshinoff@frantzlawgroup.com
JUUL LABS: E-Cigarette Ads Target Youth, Alameda Unified Suit Says
------------------------------------------------------------------
ALAMEDA UNIFIED SCHOOL DISTRICT, on behalf of itself and all others
similarly situated, Plaintiff v. JUUL LABS, INC. F/K/A PAX LABS,
INC.; JAMES MONSEES; ADAM BOWEN; NICHOLAS PRITZKER; HOYOUNG HUH;
RIAZ VALANI; ALTRIA GROUP, INC.; ALTRIA CLIENT SERVICES LLC; ALTRIA
GROUP DISTRIBUTION COMPANY; and PHILIP MORRIS USA, INC.,
Defendants, Case No. 3:22-cv-01958-WHO (N.D. Cal., March 28, 2022)
is a class action against the Defendants for negligence, gross
negligence, and violations of Public Nuisance Law and the Racketeer
Influenced and Corrupt Organizations Act.
According to the complaint, the Defendants used three tactics to
maintain market dominance in the cigarette industry: (1) product
design to maximize addiction, (2) mass deception, and (3) targeting
of youth. Defendants JUUL Labs and Adam Bowen designed an
e-cigarette device allegedly intended to create and sustain
addiction, but without the stigma associated with cigarettes and
promoted them to vulnerable young population. JUUL Labs and other
Defendants developed and implemented a marketing scheme to mislead
users into believing that JUUL products contained less nicotine
than they actually do and were healthy and safe. The Defendants
enticed newcomers to nicotine with kid-friendly flavors without
ensuring the flavoring additives were safe for inhalation. The
Defendants targeted the youth market by placing vaporized campaigns
on youth-oriented websites and media and using influencers and
affiliates to amplify their message to a teenage audience. The
Defendants have successfully caused more young people to start
using e-cigarettes, creating a youth e-cigarette epidemic and
public health crisis, says the suit.
Alameda Unified School District is a unified school district with
its offices located at 2060 Challenger Drive in Alameda,
California.
JUUL Labs, Inc., formerly known as Pax Labs, Inc., is an American
electronic cigarette company, with its principal place of business
in San Francisco, California.
Altria Group, Inc. is a producer of tobacco products, with its
principal place of business in Richmond, Virginia.
Philip Morris USA, Inc. is a wholly-owned subsidiary of Altria
Group, Inc., with its principal place of business in Richmond,
Virginia.
Altria Client Services LLC is a tobacco company, with its principal
place of business in Richmond, Virginia.
Altria Group Distribution Company is a tobacco company, with its
principal place of business in Richmond, Virginia. [BN]
The Plaintiff is represented by:
James Frantz, Esq.
William B. Shinoff, Esq.
FRANTZ LAW GROUP, APLC
402 W. Broadway, Ste. 860
San Diego, CA 92101
Telephone: (619) 233-5945
Facsimile: (619) 525-7672
E-mail: jpf@frantzlawgroup.com
wshinoff@frantzlawgroup.com
JUUL LABS: E-Cigarette Ads Target Youth, Marlington Local Suit Says
-------------------------------------------------------------------
MARLINGTON LOCAL SCHOOL DISTRICT, on behalf of itself and all
others similarly situated, Plaintiff v. JUUL LABS, INC. F/K/A PAX
LABS, INC.; JAMES MONSEES; ADAM BOWEN; NICHOLAS PRITZKER; HOYOUNG
HUH; RIAZ VALANI; ALTRIA GROUP, INC.; ALTRIA CLIENT SERVICES LLC;
ALTRIA GROUP DISTRIBUTION COMPANY; and PHILIP MORRIS USA, INC.,
Defendants, Case No. 3:22-cv-01915 (N.D. Cal., March 25, 2022) is a
class action against the Defendants for negligence, gross
negligence, and violations of Public Nuisance Law and the Racketeer
Influenced and Corrupt Organizations Act.
According to the complaint, the Defendants used three tactics to
maintain market dominance in the cigarette industry: (1) product
design to maximize addiction, (2) mass deception, and (3) targeting
of youth. Defendants JUUL Labs and Adam Bowen designed an
e-cigarette device allegedly intended to create and sustain
addiction, but without the stigma associated with cigarettes and
promoted them to vulnerable young population. JUUL Labs and other
Defendants developed and implemented a marketing scheme to mislead
users into believing that JUUL products contained less nicotine
than they actually do and were healthy and safe. The Defendants
enticed newcomers to nicotine with kid-friendly flavors without
ensuring the flavoring additives were safe for inhalation. The
Defendants targeted the youth market by placing vaporized campaigns
on youth-oriented websites and media and using influencers and
affiliates to amplify their message to a teenage audience. The
Defendants have successfully caused more young people to start
using e-cigarettes, creating a youth e-cigarette epidemic and
public health crisis, says the suit.
Marlington Local School District is a unified school district with
its offices located at 10320 Moulin Avenue in Alliance, Ohio.
JUUL Labs, Inc., formerly known as Pax Labs, Inc., is an American
electronic cigarette company, with its principal place of business
in San Francisco, California.
Altria Group, Inc. is a producer of tobacco products, with its
principal place of business in Richmond, Virginia.
Philip Morris USA, Inc. is a wholly-owned subsidiary of Altria
Group, Inc., with its principal place of business in Richmond,
Virginia.
Altria Client Services LLC is a tobacco company, with its principal
place of business in Richmond, Virginia.
Altria Group Distribution Company is a tobacco company, with its
principal place of business in Richmond, Virginia. [BN]
The Plaintiff is represented by:
James Frantz, Esq.
William B. Shinoff, Esq.
FRANTZ LAW GROUP, APLC
402 W. Broadway, Ste. 860
San Diego, CA 92101
Telephone: (619) 233-5945
Facsimile: (619) 525-7672
E-mail: jpf@frantzlawgroup.com
wshinoff@frantzlawgroup.com
JUUL LABS: Easton School Sues Over Deceptive E-Cigarette Ads
------------------------------------------------------------
EASTON SCHOOL DISTRICT, on behalf of itself and all others
similarly situated, Plaintiff v. JUUL LABS, INC. F/K/A PAX LABS,
INC.; JAMES MONSEES; ADAM BOWEN; NICHOLAS PRITZKER; HOYOUNG HUH;
RIAZ VALANI; ALTRIA GROUP, INC.; ALTRIA CLIENT SERVICES LLC; ALTRIA
GROUP DISTRIBUTION COMPANY; and PHILIP MORRIS USA, INC.,
Defendants, Case No. 3:22-cv-01911 (N.D. Cal., March 25, 2022) is a
class action against the Defendants for negligence, gross
negligence, and violations of the Public Nuisance Law and the
Racketeer Influenced and Corrupt Organizations Act.
According to the complaint, the Defendants used three tactics to
maintain market dominance in the cigarette industry: (1) product
design to maximize addiction, (2) mass deception, and (3) targeting
of youth. Defendants JUUL Labs and Adam Bowen designed an
e-cigarette device allegedly intended to create and sustain
addiction, but without the stigma associated with cigarettes and
promoted them to vulnerable young population. JUUL Labs and other
Defendants developed and implemented a marketing scheme to mislead
users into believing that JUUL products contained less nicotine
than they actually do and were healthy and safe. The Defendants
enticed newcomers to nicotine with kid-friendly flavors without
ensuring the flavoring additives were safe for inhalation. The
Defendants targeted the youth market by placing vaporized campaigns
on youth-oriented websites and media and using influencers and
affiliates to amplify their message to a teenage audience. The
Defendants have successfully caused more young people to start
using e-cigarettes, creating a youth e-cigarette epidemic and
public health crisis.
Easton School District is a unified school district with its
offices located at 1893 Railroad Street in Easton, Washington.
JUUL Labs, Inc., formerly known as Pax Labs, Inc., is an American
electronic cigarette company, with its principal place of business
in San Francisco, California.
Altria Group, Inc. is a producer of tobacco products, with its
principal place of business in Richmond, Virginia.
Philip Morris USA, Inc. is a wholly-owned subsidiary of Altria
Group, Inc., with its principal place of business in Richmond,
Virginia.
Altria Client Services LLC is a tobacco company, with its principal
place of business in Richmond, Virginia.
Altria Group Distribution Company is a tobacco company, with its
principal place of business in Richmond, Virginia. [BN]
The Plaintiff is represented by:
James Frantz, Esq.
William B. Shinoff, Esq.
FRANTZ LAW GROUP, APLC
402 W. Broadway, Ste. 860
San Diego, CA 92101
Telephone: (619) 233-5945
Facsimile: (619) 525-7672
E-mail: jpf@frantzlawgroup.com
wshinoff@frantzlawgroup.com
JUUL LABS: Faces Bliss School Suit Over Youth's E-Cigarette Ads
---------------------------------------------------------------
BLISS SCHOOL DISTRICT, on behalf of itself and all others similarly
situated, Plaintiff v. JUUL LABS, INC. F/K/A PAX LABS, INC.; JAMES
MONSEES; ADAM BOWEN; NICHOLAS PRITZKER; HOYOUNG HUH; RIAZ VALANI;
ALTRIA GROUP, INC.; ALTRIA CLIENT SERVICES LLC; ALTRIA GROUP
DISTRIBUTION COMPANY; and PHILIP MORRIS USA, INC., Defendants, Case
No. 3:22-cv-01919 (N.D. Cal., March 25, 2022) is a class action
against the Defendants for negligence, gross negligence, and
violations of the Public Nuisance Law and the Racketeer Influenced
and Corrupt Organizations Act.
According to the complaint, the Defendants used three tactics to
maintain market dominance in the cigarette industry: (1) product
design to maximize addiction, (2) mass deception, and (3) targeting
of youth. Defendants JUUL Labs and Adam Bowen designed an
e-cigarette device allegedly intended to create and sustain
addiction, but without the stigma associated with cigarettes and
promoted them to vulnerable young population. JUUL Labs and other
Defendants developed and implemented a marketing scheme to mislead
users into believing that JUUL products contained less nicotine
than they actually do and were healthy and safe. The Defendants
enticed newcomers to nicotine with kid-friendly flavors without
ensuring the flavoring additives were safe for inhalation. The
Defendants targeted the youth market by placing vaporized campaigns
on youth-oriented websites and media and using influencers and
affiliates to amplify their message to a teenage audience. The
Defendants have successfully caused more young people to start
using e-cigarettes, creating a youth e-cigarette epidemic and
public health crisis.
Bliss School District is a unified school district with its offices
located at 601 East Highway 30 in Bliss, Idaho.
JUUL Labs, Inc., formerly known as Pax Labs, Inc., is an American
electronic cigarette company, with its principal place of business
in San Francisco, California.
Altria Group, Inc. is a producer of tobacco products, with its
principal place of business in Richmond, Virginia.
Philip Morris USA, Inc. is a wholly-owned subsidiary of Altria
Group, Inc., with its principal place of business in Richmond,
Virginia.
Altria Client Services LLC is a tobacco company, with its principal
place of business in Richmond, Virginia.
Altria Group Distribution Company is a tobacco company, with its
principal place of business in Richmond, Virginia. [BN]
The Plaintiff is represented by:
James Frantz, Esq.
William B. Shinoff, Esq.
FRANTZ LAW GROUP, APLC
402 W. Broadway, Ste. 860
San Diego, CA 92101
Telephone: (619) 233-5945
Facsimile: (619) 525-7672
E-mail: jpf@frantzlawgroup.com
wshinoff@frantzlawgroup.com
JUUL LABS: Faces Clayton Suit Over Youth E-Cigarette Epidemic
-------------------------------------------------------------
CLAYTON VALLEY CHARTER HIGH SCHOOL, on behalf of itself and all
others similarly situated, Plaintiff v. JUUL LABS, INC. F/K/A PAX
LABS, INC.; JAMES MONSEES; ADAM BOWEN; NICHOLAS PRITZKER; HOYOUNG
HUH; RIAZ VALANI; ALTRIA GROUP, INC.; ALTRIA CLIENT SERVICES LLC;
ALTRIA GROUP DISTRIBUTION COMPANY; and PHILIP MORRIS USA, INC.,
Defendants, Case No. 3:22-cv-01966 (N.D. Cal., March 28, 2022) is a
class action against the Defendants for negligence, gross
negligence, and violations of the Public Nuisance Law and the
Racketeer Influenced and Corrupt Organizations Act.
According to the complaint, the Defendants used three tactics to
maintain market dominance in the cigarette industry: (1) product
design to maximize addiction, (2) mass deception, and (3) targeting
of youth. Defendants JUUL Labs and Adam Bowen designed an
e-cigarette device allegedly intended to create and sustain
addiction, but without the stigma associated with cigarettes and
promoted them to vulnerable young population. JUUL Labs and other
Defendants developed and implemented a marketing scheme to mislead
users into believing that JUUL products contained less nicotine
than they actually do and were healthy and safe. The Defendants
enticed newcomers to nicotine with kid-friendly flavors without
ensuring the flavoring additives were safe for inhalation. The
Defendants targeted the youth market by placing vaporized campaigns
on youth-oriented websites and media and using influencers and
affiliates to amplify their message to a teenage audience. The
Defendants have successfully caused more young people to start
using e-cigarettes, creating a youth e-cigarette epidemic and
public health crisis, says the suit.
Clayton Valley Charter High School is a unified school district
with its offices located at 1101 Alberta Way in Concord,
California.
JUUL Labs, Inc., formerly known as Pax Labs, Inc., is an American
electronic cigarette company, with its principal place of business
in San Francisco, California.
Altria Group, Inc. is a producer of tobacco products, with its
principal place of business in Richmond, Virginia.
Philip Morris USA, Inc. is a wholly-owned subsidiary of Altria
Group, Inc., with its principal place of business in Richmond,
Virginia.
Altria Client Services LLC is a tobacco company, with its principal
place of business in Richmond, Virginia.
Altria Group Distribution Company is a tobacco company, with its
principal place of business in Richmond, Virginia. [BN]
The Plaintiff is represented by:
James Frantz, Esq.
William B. Shinoff, Esq.
FRANTZ LAW GROUP, APLC
402 W. Broadway, Ste. 860
San Diego, CA 92101
Telephone: (619) 233-5945
Facsimile: (619) 525-7672
E-mail: jpf@frantzlawgroup.com
wshinoff@frantzlawgroup.com
JUUL LABS: Faces South Summit Suit Over Youth E-Cigarette Epidemic
------------------------------------------------------------------
SOUTH SUMMIT SCHOOL DISTRICT, on behalf of itself and all others
similarly situated, Plaintiff v. JUUL LABS, INC. F/K/A PAX LABS,
INC.; JAMES MONSEES; ADAM BOWEN; NICHOLAS PRITZKER; HOYOUNG HUH;
RIAZ VALANI; ALTRIA GROUP, INC.; ALTRIA CLIENT SERVICES LLC; ALTRIA
GROUP DISTRIBUTION COMPANY; and PHILIP MORRIS USA, INC.,
Defendants, Case No. 3:22-cv-01909 (N.D. Cal., March 25, 2022) is a
class action against the Defendants for negligence, gross
negligence, and violations of Public Nuisance Law and the Racketeer
Influenced and Corrupt Organizations Act.
According to the complaint, the Defendants used three tactics to
maintain market dominance in the cigarette industry: (1) product
design to maximize addiction, (2) mass deception, and (3) targeting
of youth. Defendants JUUL Labs and Adam Bowen designed an
e-cigarette device allegedly intended to create and sustain
addiction, but without the stigma associated with cigarettes and
promoted them to vulnerable young population. JUUL Labs and other
Defendants developed and implemented a marketing scheme to mislead
users into believing that JUUL products contained less nicotine
than they actually do and were healthy and safe. The Defendants
enticed newcomers to nicotine with kid-friendly flavors without
ensuring the flavoring additives were safe for inhalation. The
Defendants targeted the youth market by placing vaporized campaigns
on youth-oriented websites and media and using influencers and
affiliates to amplify their message to a teenage audience. The
Defendants have successfully caused more young people to start
using e-cigarettes, creating a youth e-cigarette epidemic and
public health crisis, says the suit.
South Summit School District is a unified school district with its
offices located at 285 East 400 South in Kamas, Utah.
JUUL Labs, Inc., formerly known as Pax Labs, Inc., is an American
electronic cigarette company, with its principal place of business
in San Francisco, California.
Altria Group, Inc. is a producer of tobacco products, with its
principal place of business in Richmond, Virginia.
Philip Morris USA, Inc. is a wholly-owned subsidiary of Altria
Group, Inc., with its principal place of business in Richmond,
Virginia.
Altria Client Services LLC is a tobacco company, with its principal
place of business in Richmond, Virginia.
Altria Group Distribution Company is a tobacco company, with its
principal place of business in Richmond, Virginia. [BN]
The Plaintiff is represented by:
James Frantz, Esq.
William B. Shinoff, Esq.
FRANTZ LAW GROUP, APLC
402 W. Broadway, Ste. 860
San Diego, CA 92101
Telephone: (619) 233-5945
Facsimile: (619) 525-7672
E-mail: jpf@frantzlawgroup.com
wshinoff@frantzlawgroup.com
JUUL LABS: Manton Consolidated Sues Over Youth's E-Cigarette Crisis
-------------------------------------------------------------------
MANTON CONSOLIDATED SCHOOLS, on behalf of itself and all others
similarly situated, Plaintiff v. JUUL LABS, INC. F/K/A PAX LABS,
INC.; JAMES MONSEES; ADAM BOWEN; NICHOLAS PRITZKER; HOYOUNG HUH;
RIAZ VALANI; ALTRIA GROUP, INC.; ALTRIA CLIENT SERVICES LLC; ALTRIA
GROUP DISTRIBUTION COMPANY; and PHILIP MORRIS USA, INC.,
Defendants, Case No. 3:22-cv-01964 (N.D. Cal., March 28, 2022) is a
class action against the Defendants for negligence, gross
negligence, and violations of the Public Nuisance Law and the
Racketeer Influenced and Corrupt Organizations Act.
According to the complaint, the Defendants used three tactics to
maintain market dominance in the cigarette industry: (1) product
design to maximize addiction, (2) mass deception, and (3) targeting
of youth. Defendants JUUL Labs and Adam Bowen designed an
e-cigarette device allegedly intended to create and sustain
addiction, but without the stigma associated with cigarettes and
promoted them to vulnerable young population. JUUL Labs and other
Defendants developed and implemented a marketing scheme to mislead
users into believing that JUUL products contained less nicotine
than they actually do and were healthy and safe. The Defendants
enticed newcomers to nicotine with kid-friendly flavors without
ensuring the flavoring additives were safe for inhalation. The
Defendants targeted the youth market by placing vaporized campaigns
on youth-oriented websites and media and using influencers and
affiliates to amplify their message to a teenage audience. The
Defendants have successfully caused more young people to start
using e-cigarettes, creating a youth e-cigarette epidemic and
public health crisis, says the suit.
Manton Consolidated Schools is a unified school district with its
offices located at 105 5th Street in Manton, Michigan.
JUUL Labs, Inc., formerly known as Pax Labs, Inc., is an American
electronic cigarette company, with its principal place of business
in San Francisco, California.
Altria Group, Inc. is a producer of tobacco products, with its
principal place of business in Richmond, Virginia.
Philip Morris USA, Inc. is a wholly-owned subsidiary of Altria
Group, Inc., with its principal place of business in Richmond,
Virginia.
Altria Client Services LLC is a tobacco company, with its principal
place of business in Richmond, Virginia.
Altria Group Distribution Company is a tobacco company, with its
principal place of business in Richmond, Virginia. [BN]
The Plaintiff is represented by:
James Frantz, Esq.
William B. Shinoff, Esq.
FRANTZ LAW GROUP, APLC
402 W. Broadway, Ste. 860
San Diego, CA 92101
Telephone: (619) 233-5945
Facsimile: (619) 525-7672
E-mail: jpf@frantzlawgroup.com
wshinoff@frantzlawgroup.com
JUUL LABS: Markets E-Cigarette to Youth, Juab School Suit Claims
----------------------------------------------------------------
JUAB SCHOOL DISTRICT, on behalf of itself and all others similarly
situated, Plaintiff v. JUUL LABS, INC. F/K/A PAX LABS, INC.; JAMES
MONSEES; ADAM BOWEN; NICHOLAS PRITZKER; HOYOUNG HUH; RIAZ VALANI;
ALTRIA GROUP, INC.; ALTRIA CLIENT SERVICES LLC; ALTRIA GROUP
DISTRIBUTION COMPANY; and PHILIP MORRIS USA, INC., Defendants, Case
No. 3:22-cv-01910 (N.D. Cal., March 25, 2022) is a class action
against the Defendants for negligence, gross negligence, and
violations of the Public Nuisance Law and the Racketeer Influenced
and Corrupt Organizations Act.
According to the complaint, the Defendants used three tactics to
maintain market dominance in the cigarette industry: (1) product
design to maximize addiction, (2) mass deception, and (3) targeting
of youth. Defendants JUUL Labs and Adam Bowen designed an
e-cigarette device allegedly intended to create and sustain
addiction, but without the stigma associated with cigarettes and
promoted them to vulnerable young population. JUUL Labs and other
Defendants developed and implemented a marketing scheme to mislead
users into believing that JUUL products contained less nicotine
than they actually do and were healthy and safe. The Defendants
enticed newcomers to nicotine with kid-friendly flavors without
ensuring the flavoring additives were safe for inhalation. The
Defendants targeted the youth market by placing vaporized campaigns
on youth-oriented websites and media and using influencers and
affiliates to amplify their message to a teenage audience. The
Defendants have successfully caused more young people to start
using e-cigarettes, creating a youth e-cigarette epidemic and
public health crisis.
Juab School District is a free public charter school with its
offices located at 346 East 600 North in Nephi, Utah.
JUUL Labs, Inc., formerly known as Pax Labs, Inc., is an American
electronic cigarette company, with its principal place of business
in San Francisco, California.
Altria Group, Inc. is a producer of tobacco products, with its
principal place of business in Richmond, Virginia.
Philip Morris USA, Inc. is a wholly-owned subsidiary of Altria
Group, Inc., with its principal place of business in Richmond,
Virginia.
Altria Client Services LLC is a tobacco company, with its principal
place of business in Richmond, Virginia.
Altria Group Distribution Company is a tobacco company, with its
principal place of business in Richmond, Virginia. [BN]
The Plaintiff is represented by:
James Frantz, Esq.
William B. Shinoff, Esq.
FRANTZ LAW GROUP, APLC
402 W. Broadway, Ste. 860
San Diego, CA 92101
Telephone: (619) 233-5945
Facsimile: (619) 525-7672
E-mail: jpf@frantzlawgroup.com
wshinoff@frantzlawgroup.com
JUUL LABS: Markets E-Cigarette to Youth, Manchester Community Says
------------------------------------------------------------------
MANCHESTER COMMUNITY SCHOOLS, on behalf of itself and all others
similarly situated, Plaintiff v. JUUL LABS, INC. F/K/A PAX LABS,
INC.; JAMES MONSEES; ADAM BOWEN; NICHOLAS PRITZKER; HOYOUNG HUH;
RIAZ VALANI; ALTRIA GROUP, INC.; ALTRIA CLIENT SERVICES LLC; ALTRIA
GROUP DISTRIBUTION COMPANY; and PHILIP MORRIS USA, INC.,
Defendants, Case No. 3:22-cv-01959-WHO (N.D. Cal., March 28, 2022)
is a class action against the Defendants for negligence, gross
negligence, and violations of Public Nuisance Law and the Racketeer
Influenced and Corrupt Organizations Act.
According to the complaint, the Defendants used three tactics to
maintain market dominance in the cigarette industry: (1) product
design to maximize addiction, (2) mass deception, and (3) targeting
of youth. Defendants JUUL Labs and Adam Bowen designed an
e-cigarette device allegedly intended to create and sustain
addiction, but without the stigma associated with cigarettes and
promoted them to vulnerable young population. JUUL Labs and other
Defendants developed and implemented a marketing scheme to mislead
users into believing that JUUL products contained less nicotine
than they actually do and were healthy and safe. The Defendants
enticed newcomers to nicotine with kid-friendly flavors without
ensuring the flavoring additives were safe for inhalation. The
Defendants targeted the youth market by placing vaporized campaigns
on youth-oriented websites and media and using influencers and
affiliates to amplify their message to a teenage audience. The
Defendants have successfully caused more young people to start
using e-cigarettes, creating a youth e-cigarette epidemic and
public health crisis, says the suit.
Manchester Community Schools is a unified school district with its
offices located at 710 East Main Street in Manchester, Michigan.
JUUL Labs, Inc., formerly known as Pax Labs, Inc., is an American
electronic cigarette company, with its principal place of business
in San Francisco, California.
Altria Group, Inc. is a producer of tobacco products, with its
principal place of business in Richmond, Virginia.
Philip Morris USA, Inc. is a wholly-owned subsidiary of Altria
Group, Inc., with its principal place of business in Richmond,
Virginia.
Altria Client Services LLC is a tobacco company, with its principal
place of business in Richmond, Virginia.
Altria Group Distribution Company is a tobacco company, with its
principal place of business in Richmond, Virginia. [BN]
The Plaintiff is represented by:
James Frantz, Esq.
William B. Shinoff, Esq.
FRANTZ LAW GROUP, APLC
402 W. Broadway, Ste. 860
San Diego, CA 92101
Telephone: (619) 233-5945
Facsimile: (619) 525-7672
E-mail: jpf@frantzlawgroup.com
wshinoff@frantzlawgroup.com
JUUL LABS: Menominee Area Sues Over Youth's E-Cigarette Addiction
-----------------------------------------------------------------
MENOMINEE AREA PUBLIC SCHOOLS, on behalf of itself and all others
similarly situated, Plaintiff v. JUUL LABS, INC. F/K/A PAX LABS,
INC.; JAMES MONSEES; ADAM BOWEN; NICHOLAS PRITZKER; HOYOUNG HUH;
RIAZ VALANI; ALTRIA GROUP, INC.; ALTRIA CLIENT SERVICES LLC; ALTRIA
GROUP DISTRIBUTION COMPANY; and PHILIP MORRIS USA, INC.,
Defendants, Case No. 3:22-cv-01965 (N.D. Cal., March 28, 2022) is a
class action against the Defendants for negligence, gross
negligence, and violations of the Public Nuisance Law and the
Racketeer Influenced and Corrupt Organizations Act.
According to the complaint, the Defendants used three tactics to
maintain market dominance in the cigarette industry: (1) product
design to maximize addiction, (2) mass deception, and (3) targeting
of youth. Defendants JUUL Labs and Adam Bowen designed an
e-cigarette device allegedly intended to create and sustain
addiction, but without the stigma associated with cigarettes and
promoted them to vulnerable young population. JUUL Labs and other
Defendants developed and implemented a marketing scheme to mislead
users into believing that JUUL products contained less nicotine
than they actually do and were healthy and safe. The Defendants
enticed newcomers to nicotine with kid-friendly flavors without
ensuring the flavoring additives were safe for inhalation. The
Defendants targeted the youth market by placing vaporized campaigns
on youth-oriented websites and media and using influencers and
affiliates to amplify their message to a teenage audience. The
Defendants have successfully caused more young people to start
using e-cigarettes, creating a youth e-cigarette epidemic and
public health crisis, says the suit.
Menominee Area Public Schools is a unified school district with its
offices located at 1230 13th Street in Menominee, Michigan.
JUUL Labs, Inc., formerly known as Pax Labs, Inc., is an American
electronic cigarette company, with its principal place of business
in San Francisco, California.
Altria Group, Inc. is a producer of tobacco products, with its
principal place of business in Richmond, Virginia.
Philip Morris USA, Inc. is a wholly-owned subsidiary of Altria
Group, Inc., with its principal place of business in Richmond,
Virginia.
Altria Client Services LLC is a tobacco company, with its principal
place of business in Richmond, Virginia.
Altria Group Distribution Company is a tobacco company, with its
principal place of business in Richmond, Virginia. [BN]
The Plaintiff is represented by:
James Frantz, Esq.
William B. Shinoff, Esq.
FRANTZ LAW GROUP, APLC
402 W. Broadway, Ste. 860
San Diego, CA 92101
Telephone: (619) 233-5945
Facsimile: (619) 525-7672
E-mail: jpf@frantzlawgroup.com
wshinoff@frantzlawgroup.com
JUUL LABS: Minidoka School Sues Over Youth E-Cigarette Campaign
---------------------------------------------------------------
MINIDOKA SCHOOL DISTRICT, on behalf of itself and all others
similarly situated, Plaintiff v. JUUL LABS, INC. F/K/A PAX LABS,
INC.; JAMES MONSEES; ADAM BOWEN; NICHOLAS PRITZKER; HOYOUNG HUH;
RIAZ VALANI; ALTRIA GROUP, INC.; ALTRIA CLIENT SERVICES LLC; ALTRIA
GROUP DISTRIBUTION COMPANY; and PHILIP MORRIS USA, INC.,
Defendants, Case No. 3:22-cv-01917-WHO (N.D. Cal., March 25, 2022)
is a class action against the Defendants for negligence, gross
negligence, and violations of the Public Nuisance Law and the
Racketeer Influenced and Corrupt Organizations Act.
According to the complaint, the Defendants used three tactics to
maintain market dominance in the cigarette industry: (1) product
design to maximize addiction, (2) mass deception, and (3) targeting
of youth. Defendants JUUL Labs and Adam Bowen designed an
e-cigarette device allegedly intended to create and sustain
addiction, but without the stigma associated with cigarettes and
promoted them to vulnerable young population. JUUL Labs and other
Defendants developed and implemented a marketing scheme to mislead
users into believing that JUUL products contained less nicotine
than they actually do and were healthy and safe. The Defendants
enticed newcomers to nicotine with kid-friendly flavors without
ensuring the flavoring additives were safe for inhalation. The
Defendants targeted the youth market by placing vaporized campaigns
on youth-oriented websites and media and using influencers and
affiliates to amplify their message to a teenage audience. The
Defendants have successfully caused more young people to start
using e-cigarettes, creating a youth e-cigarette epidemic and
public health crisis, says the suit.
Minidoka School District is a unified school district with its
offices located at 310 10th Street in Rupert, Idaho.
JUUL Labs, Inc., formerly known as Pax Labs, Inc., is an American
electronic cigarette company, with its principal place of business
in San Francisco, California.
Altria Group, Inc. is a producer of tobacco products, with its
principal place of business in Richmond, Virginia.
Philip Morris USA, Inc. is a wholly-owned subsidiary of Altria
Group, Inc., with its principal place of business in Richmond,
Virginia.
Altria Client Services LLC is a tobacco company, with its principal
place of business in Richmond, Virginia.
Altria Group Distribution Company is a tobacco company, with its
principal place of business in Richmond, Virginia. [BN]
The Plaintiff is represented by:
James Frantz, Esq.
William B. Shinoff, Esq.
FRANTZ LAW GROUP, APLC
402 W. Broadway, Ste. 860
San Diego, CA 92101
Telephone: (619) 233-5945
Facsimile: (619) 525-7672
E-mail: jpf@frantzlawgroup.com
wshinoff@frantzlawgroup.com
JUUL LABS: Ogdensburg City Sues Over E-Cigarette Crisis in N.Y.
---------------------------------------------------------------
OGDENSBURG CITY SCHOOL DISTRICT, on behalf of itself and all others
similarly situated, Plaintiff v. JUUL LABS, INC. F/K/A PAX LABS,
INC.; JAMES MONSEES; ADAM BOWEN; NICHOLAS PRITZKER; HOYOUNG HUH;
RIAZ VALANI; ALTRIA GROUP, INC.; ALTRIA CLIENT SERVICES LLC; ALTRIA
GROUP DISTRIBUTION COMPANY; and PHILIP MORRIS USA, INC.,
Defendants, Case No. 3:22-cv-01953 (N.D. Cal., March 28, 2022) is a
class action against the Defendants for negligence, gross
negligence, and violations of the Public Nuisance Law and the
Racketeer Influenced and Corrupt Organizations Act.
According to the complaint, the Defendants used three tactics to
maintain market dominance in the cigarette industry: (1) product
design to maximize addiction, (2) mass deception, and (3) targeting
of youth. Defendants JUUL Labs and Adam Bowen designed an
e-cigarette device allegedly intended to create and sustain
addiction, but without the stigma associated with cigarettes and
promoted them to vulnerable young population. JUUL Labs and other
Defendants developed and implemented a marketing scheme to mislead
users into believing that JUUL products contained less nicotine
than they actually do and were healthy and safe. The Defendants
enticed newcomers to nicotine with kid-friendly flavors without
ensuring the flavoring additives were safe for inhalation. The
Defendants targeted the youth market by placing vaporized campaigns
on youth-oriented websites and media and using influencers and
affiliates to amplify their message to a teenage audience. The
Defendants have successfully caused more young people to start
using e-cigarettes, creating a youth e-cigarette epidemic and
public health crisis, says the suit.
Ogdensburg City School District is a unified school district with
its offices located at 1100 State Street in Ogdensburg, New York.
JUUL Labs, Inc., formerly known as Pax Labs, Inc., is an American
electronic cigarette company, with its principal place of business
in San Francisco, California.
Altria Group, Inc. is a producer of tobacco products, with its
principal place of business in Richmond, Virginia.
Philip Morris USA, Inc. is a wholly-owned subsidiary of Altria
Group, Inc., with its principal place of business in Richmond,
Virginia.
Altria Client Services LLC is a tobacco company, with its principal
place of business in Richmond, Virginia.
Altria Group Distribution Company is a tobacco company, with its
principal place of business in Richmond, Virginia. [BN]
The Plaintiff is represented by:
James Frantz, Esq.
William B. Shinoff, Esq.
FRANTZ LAW GROUP, APLC
402 W. Broadway, Ste. 860
San Diego, CA 92101
Telephone: (619) 233-5945
Facsimile: (619) 525-7672
E-mail: jpf@frantzlawgroup.com
wshinoff@frantzlawgroup.com
JUUL LABS: Promotes E-Cigarette Use Among Youth, Weber School Says
------------------------------------------------------------------
WEBER SCHOOL DISTRICT, on behalf of itself and all others similarly
situated, Plaintiff v. JUUL LABS, INC. F/K/A PAX LABS, INC.; JAMES
MONSEES; ADAM BOWEN; NICHOLAS PRITZKER; HOYOUNG HUH; RIAZ VALANI;
ALTRIA GROUP, INC.; ALTRIA CLIENT SERVICES LLC; ALTRIA GROUP
DISTRIBUTION COMPANY; and PHILIP MORRIS USA, INC., Defendants, Case
No. 3:22-cv-01962 (N.D. Cal., March 28, 2022) is a class action
against the Defendants for negligence, gross negligence, and
violations of the Public Nuisance Law and the Racketeer Influenced
and Corrupt Organizations Act.
According to the complaint, the Defendants used three tactics to
maintain market dominance in the cigarette industry: (1) product
design to maximize addiction, (2) mass deception, and (3) targeting
of youth. Defendants JUUL Labs and Adam Bowen designed an
e-cigarette device allegedly intended to create and sustain
addiction, but without the stigma associated with cigarettes and
promoted them to vulnerable young population. JUUL Labs and other
Defendants developed and implemented a marketing scheme to mislead
users into believing that JUUL products contained less nicotine
than they actually do and were healthy and safe. The Defendants
enticed newcomers to nicotine with kid-friendly flavors without
ensuring the flavoring additives were safe for inhalation. The
Defendants targeted the youth market by placing vaporized campaigns
on youth-oriented websites and media and using influencers and
affiliates to amplify their message to a teenage audience. The
Defendants have successfully caused more young people to start
using e-cigarettes, creating a youth e-cigarette epidemic and
public health crisis, says the suit.
Weber School District is a unified school district with its offices
located at 5320 Adams Avenue Parkway in Ogden, Utah.
JUUL Labs, Inc., formerly known as Pax Labs, Inc., is an American
electronic cigarette company, with its principal place of business
in San Francisco, California.
Altria Group, Inc. is a producer of tobacco products, with its
principal place of business in Richmond, Virginia.
Philip Morris USA, Inc. is a wholly-owned subsidiary of Altria
Group, Inc., with its principal place of business in Richmond,
Virginia.
Altria Client Services LLC is a tobacco company, with its principal
place of business in Richmond, Virginia.
Altria Group Distribution Company is a tobacco company, with its
principal place of business in Richmond, Virginia. [BN]
The Plaintiff is represented by:
James Frantz, Esq.
William B. Shinoff, Esq.
FRANTZ LAW GROUP, APLC
402 W. Broadway, Ste. 860
San Diego, CA 92101
Telephone: (619) 233-5945
Facsimile: (619) 525-7672
E-mail: jpf@frantzlawgroup.com
wshinoff@frantzlawgroup.com
JUUL LABS: River Valley Sues Over E-Cigarette's Risks to Youth
--------------------------------------------------------------
RIVER VALLEY SCHOOL DISTRICT, on behalf of itself and all others
similarly situated, Plaintiff v. JUUL LABS, INC. F/K/A PAX LABS,
INC.; JAMES MONSEES; ADAM BOWEN; NICHOLAS PRITZKER; HOYOUNG HUH;
RIAZ VALANI; ALTRIA GROUP, INC.; ALTRIA CLIENT SERVICES LLC; ALTRIA
GROUP DISTRIBUTION COMPANY; and PHILIP MORRIS USA, INC.,
Defendants, Case No. 3:22-cv-01952 (N.D. Cal., March 28, 2022) is a
class action against the Defendants for negligence, gross
negligence, and violations of the Public Nuisance Law and the
Racketeer Influenced and Corrupt Organizations Act.
According to the complaint, the Defendants used three tactics to
maintain market dominance in the cigarette industry: (1) product
design to maximize addiction, (2) mass deception, and (3) targeting
of youth. Defendants JUUL Labs and Adam Bowen designed an
e-cigarette device allegedly intended to create and sustain
addiction, but without the stigma associated with cigarettes and
promoted them to vulnerable young population. JUUL Labs and other
Defendants developed and implemented a marketing scheme to mislead
users into believing that JUUL products contained less nicotine
than they actually do and were healthy and safe. The Defendants
enticed newcomers to nicotine with kid-friendly flavors without
ensuring the flavoring additives were safe for inhalation. The
Defendants targeted the youth market by placing vaporized campaigns
on youth-oriented websites and media and using influencers and
affiliates to amplify their message to a teenage audience. The
Defendants have successfully caused more young people to start
using e-cigarettes, creating a youth e-cigarette epidemic and
public health crisis, says the suit.
River Valley School District is a unified school district with its
offices located at 15480 Three Oaks Road in Three Oaks, Michigan.
JUUL Labs, Inc., formerly known as Pax Labs, Inc., is an American
electronic cigarette company, with its principal place of business
in San Francisco, California.
Altria Group, Inc. is a producer of tobacco products, with its
principal place of business in Richmond, Virginia.
Philip Morris USA, Inc. is a wholly-owned subsidiary of Altria
Group, Inc., with its principal place of business in Richmond,
Virginia.
Altria Client Services LLC is a tobacco company, with its principal
place of business in Richmond, Virginia.
Altria Group Distribution Company is a tobacco company, with its
principal place of business in Richmond, Virginia. [BN]
The Plaintiff is represented by:
James Frantz, Esq.
William B. Shinoff, Esq.
FRANTZ LAW GROUP, APLC
402 W. Broadway, Ste. 860
San Diego, CA 92101
Telephone: (619) 233-5945
Facsimile: (619) 525-7672
E-mail: jpf@frantzlawgroup.com
wshinoff@frantzlawgroup.com
JUUL LABS: Silver Consolidated Sues Over E-Cigarette Crisis in N.M.
-------------------------------------------------------------------
SILVER CONSOLIDATED SCHOOLS, on behalf of itself and all others
similarly situated, Plaintiff v. JUUL LABS, INC. F/K/A PAX LABS,
INC.; JAMES MONSEES; ADAM BOWEN; NICHOLAS PRITZKER; HOYOUNG HUH;
RIAZ VALANI; ALTRIA GROUP, INC.; ALTRIA CLIENT SERVICES LLC; ALTRIA
GROUP DISTRIBUTION COMPANY; and PHILIP MORRIS USA, INC.,
Defendants, Case No. 3:22-cv-01913 (N.D. Cal., March 25, 2022) is a
class action against the Defendants for negligence, gross
negligence, and violations of Public Nuisance Law and the Racketeer
Influenced and Corrupt Organizations Act.
According to the complaint, the Defendants used three tactics to
maintain market dominance in the cigarette industry: (1) product
design to maximize addiction, (2) mass deception, and (3) targeting
of youth. Defendants JUUL Labs and Adam Bowen designed an
e-cigarette device allegedly intended to create and sustain
addiction, but without the stigma associated with cigarettes and
promoted them to vulnerable young population. JUUL Labs and other
Defendants developed and implemented a marketing scheme to mislead
users into believing that JUUL products contained less nicotine
than they actually do and were healthy and safe. The Defendants
enticed newcomers to nicotine with kid-friendly flavors without
ensuring the flavoring additives were safe for inhalation. The
Defendants targeted the youth market by placing vaporized campaigns
on youth-oriented websites and media and using influencers and
affiliates to amplify their message to a teenage audience. The
Defendants have successfully caused more young people to start
using e-cigarettes, creating a youth e-cigarette epidemic and
public health crisis, says the suit.
Silver Consolidated Schools is a unified school district with its
offices located at 2810 North Swan Street in Silver City, New
Mexico.
JUUL Labs, Inc., formerly known as Pax Labs, Inc., is an American
electronic cigarette company, with its principal place of business
in San Francisco, California.
Altria Group, Inc. is a producer of tobacco products, with its
principal place of business in Richmond, Virginia.
Philip Morris USA, Inc. is a wholly-owned subsidiary of Altria
Group, Inc., with its principal place of business in Richmond,
Virginia.
Altria Client Services LLC is a tobacco company, with its principal
place of business in Richmond, Virginia.
Altria Group Distribution Company is a tobacco company, with its
principal place of business in Richmond, Virginia. [BN]
The Plaintiff is represented by:
James Frantz, Esq.
William B. Shinoff, Esq.
FRANTZ LAW GROUP, APLC
402 W. Broadway, Ste. 860
San Diego, CA 92101
Telephone: (619) 233-5945
Facsimile: (619) 525-7672
E-mail: jpf@frantzlawgroup.com
wshinoff@frantzlawgroup.com
KELLER WILLIAMS: St. John Seeks Leave to File Confidential Info
---------------------------------------------------------------
In the class action lawsuit captioned as DANNA ST JOHN AND LUIS
PENUELA, individually and on behalf of all others similarly
situated, v. KELLER WILLIAMS REALTY, INC., Case No.
6:19-cv-01347-PGB-DCI (M.D. Fla.), Plaintiff Danna St. John
requests leave to file third parties' confidential information
pursuant to Local Rule 1.11 and the parties' stipulated and signed
confidentiality agreement.
The third party declarations include extensive discussion of
proprietary business information, including client lists. If made
public, this information will provide competitors an unfair
advantage and could harm the parties' relationships with their
respective clients that have been publicly identified. "The
likelihood of damage to the parties' relationships with their
customers and unfair competition from their competitors if the
information is made public is great.
The information to be sealed is not related to "public officials or
public concerns," and there is no "less onerous" alternative to
sealing the information that will insure its contents remain
confidential while allowing the Court to review the information to
make decisions on the merits of the parties' other pending
motions."
Keller Williams is an American technology and international real
estate franchise with headquarters in Austin, Texas.
A copy of the Plaintiffs' motion dated March 14, 2022 is available
from PacerMonitor.com at https://bit.ly/3ITSyzO at no extra
charge.[CC]
The Plaintiffs are represented by:
Avi R. Kaufman, Esq.
Rachel E. Kaufman, Esq.
KAUFMAN P.A.
237 South Dixie Highway, 4 th Floor
Coral Gables, FL 33133
Telephone: (305) 469-5881
E-mail: kaufman@kaufmanpa.com
rachel@kaufmanpa.com
- and -
Stefan Coleman, Esq.
LAW OFFICES OF STEFAN COLEMAN, P.A.
201 S. Biscayne Blvd, 28th Floor
Miami, FL 33131
Telephone: (877) 333-9427
Facsimile: (888) 498-8946
E-mail: law@stefancoleman.com
KIRKLAND'S INC: Faces Miles Class Suit in California Court
-----------------------------------------------------------
Kirkland's, Inc. disclosed in its Form 10-K Report for the fiscal
year ended January 29, 2022, filed with the Securities and Exchange
Commission on March 25, 2022, that the company was named as a
defendant in a putative class action filed in May 2018 in the
Superior Court of California captioned "Miles v. Kirkland's Stores,
Inc." The case has been removed to United States District Court for
the Central District of California.
The complaint alleges, on behalf of Miles and all other hourly
Kirkland's employees in California, various wage and hour
violations and seeks unpaid wages, statutory and civil penalties,
monetary damages and injunctive relief. Kirkland's denies the
material allegations in the complaint and believes that its
employment policies are generally compliant with California law.
The court held a hearing on the class certification motion on
January 14, 2022, and denied the plaintiff's motion to certify in
its entirety.
In addition, the court set a case management conference for April
15, 2022, at which time the Court will set trial and related dates.
Kirkland's, Inc. is a retailer of home furnishings based in
Tennessee.
KIRKLAND'S INC: Gennock Receipt Dispute Ongoing in Pennsylvania
---------------------------------------------------------------
Kirkland's, Inc. disclosed in its Form 10-K Report for the fiscal
year ended January 29, 2022, filed with the Securities and Exchange
Commission on March 25, 2022, that the company was named as a
defendant in a putative class action filed in April 2017 in the
United States District Court for the Western District of
Pennsylvania captioned "Gennock v. Kirkland's, Inc."
The complaint alleged that the company, in violation of federal
law, published more than the last five digits of a credit or debit
card number on customers' receipts and sought statutory and
punitive damages and attorneys' fees and costs. On October 21,
2019, the District Court dismissed the matter and ruled that the
plaintiffs did not have standing based on the Third Circuit's
recent decision in "Kamal v. J. Crew Group, Inc."
Following the dismissal in federal court, on October 25, 2019, the
plaintiffs filed a Praecipe to Transfer the case to Pennsylvania
state court, and on August 20, 2020, the court ruled that the
plaintiffs have standing. On October 16, 2020, the Superior Court
affirmed the trial court's ruling in an unpublished order.
On December 29, 2021, the Pennsylvania Supreme Court granted the
company's Petition for Allowance of Appeal and vacated the Superior
Court's order. Specifically, the Supreme Court remanded the case to
the Superior Court to provide its rationale for the denial of the
company's Petition for Allowance to Appeal.
Kirkland's, Inc. is a retailer of home furnishings based in
Tennessee.
LEXUS OF MANHATTAN: Watson Seeks to Certify TCPA Classes
--------------------------------------------------------
In the class action lawsuit captioned as BRIAN WATSON, DANIEL
SAMARGHITAN, ANNMARIE GREENE f/k/a ANNMARIE MOHAMMED, JOSE ESPINAL,
LYMELL JACKSON, individually, and on behalf of all others similarly
situated, v. LEXUS OF MANHATTAN, Case No. 1:20-cv-04572-LGS
(S.D.N.Y.), the Plaintiffs ask the Court to enter order certifying
the following Classes:
-- Automatic Telephone Dialing System (ATDS) Class:
"All Honda of Manhattan customers within the United States
that were sent any text messages from Lexus of Manhattan,
using the Zipwhip texting platform, stating "Can I text you
regarding maintenance of your Honda vehicle" or a similar
variant thereof, to non-business wireless telephone
numbers, within four years of the filing of this action;"
-- National Do Not Call Registry (NDNCR) Class:
"All Honda of Manhattan customers within the United States
that were sent two or more text messages from Lexus of
Manhattan within a 12 month period, using the Zipwhip
texting platform, stating "Can I text you regarding
maintenance of your Honda vehicle" or a similar variant
thereof, to non-business wireless telephone numbers, whose
telephone numbers were registered on the National Do Not
Call List more than thirty-two days before the first
message was sent, within four years of the filing of this
action;" and
-- Internal Do Not Call (IDNC) Class:
"All Honda of Manhattan customers within the United States
that were sent any text messages from Lexus of Manhattan,
using the Zipwhip texting platform, stating "Can I text you
regarding maintenance of your Honda vehicle" or a similar
variant thereof, to non-business wireless telephone
numbers, while Lexus failed to institute procedures to
maintain a list of persons who requested not to receive
telemarketing calls, within four years of the filing of
this action."
The action arises from the Defendant's violation of the Telephone
Consumer Protection Act ("TCPA"). The Plaintiffs filed an initial
Complaint on June 18, 2020 alleging that the Defendant violated
various provisions of the TCPA by sending text solicitations to
customers of Honda of Manhattan.
The Plaintiffs seek certification of a 23(b)(3) statutory damage
class.
The factual "core" of this action is the common, systematic and
uniform conduct of the Defendant. Defendant uses an automated
telephone dialing system to send unsolicited text messages to
individuals like the Plaintiffs. Many of these individuals are on
the Do Not Call Registry like the Plaintiffs. In other words, the
claim is common, Defendant's actions are common, and the method of
calculating penalties and damages will be common. Consequently, the
commonality requirement of Rule 23(a)(3) is satisfied.
Each of the Plaintiffs received these messages while Defendant did
not maintain procedures concerning an internal Do Not Call
database. Each of the Plaintiffs received these messages despite
being registered on the Do Not Call database for more than 32 days.
Plaintiffs and each Class Member's claims stem from the same
alleged practices and course of conduct by the Defendant and are
all based upon the same legal theories.
Lexus of Manhattan sells and services LEXUS vehicles in the greater
New York City area.
A copy of the Plaintiffs' motion to certify class dated March 14,
2022 is available from PacerMonitor.com at https://bit.ly/3IVr64W
at no extra charge.[CC]
The Plaintiff is represented by:
Daniel Zemel, Esq.
Elizabeth Apostola, Esq.
ZEMEL LAW LLC
660 Broadway
Paterson, New Jersey 07514
Telephone: (862) 227-3106
E-mail: dz@zemellawllc.com
ea@zemellawllc.com
LIDDLE & LIDDLE: Final OK of Class Settlement in Perchlak Sought
----------------------------------------------------------------
In the class action lawsuit captioned as Robert Perchlak, on behalf
of himself and all others similarly situated, v. Liddle & Liddle, A
Professional Corporation, Case No. 2:19-cv-09461-JFW-AFM (C.D.
Cal.), the Parties ask the Court to enter an order granting final
certification of the Class settlement purposes, as set forth in the
Agreement, and final approval of the Agreement, pursuant to Rule 23
of the Federal Rules of Civil Procedure.
After notifying the class members, the claims administrator
received 47 claims: 46 timely and valid, and one untimely. If final
approval is granted, eligible class members will receive a pro rata
portion of $4,652.29 -- approximately $98.98-$101.13.
No class member objected and none requested exclusion. The Court
should approve the Plaintiff's award of $2,000 under the Agreement
in recognition of his service to the class. The Agreement is fair,
reasonable, and adequate, in light of the class recovering more
than could be achieved through further litigation.
The Defendant is a law firm that represents landlords in
residential evictions, by sending three-day notices to pay rent or
quit. The Defendant sent one such notice to Plaintiff on August 7,
2019. The Plaintiff alleges that Defendant violated 15 U.S.C.
section 1692g(a)(2) because the Three Day Notice failed to
effectively convey the name of the creditor to whom the alleged
debt was owed, and Defendant failed to provide Plaintiff with the
same in writing within five days thereafter.
On July 16, 2021, the Court conditionally certified the Class and
granted preliminary approval of the class settlement for claims
under the Fair Debt Collection Practices Act ("FDCPA"). Any Class
member wishing to submit a claim, object to the settlement, or opt
out of the settlement, was required to do so on or before February
14, 2022.
The Defendant has tendered $16,652.29 to Class Counsel,
representing the amounts to be paid under the Agreement to
Plaintiff, the Eligible Class Members, and JND Legal Administration
("JND") -- the class action claims administrator being used in this
case.
A copy of the Parties' motion dated March 14, 2022 is available
from PacerMonitor.com at https://bit.ly/3NEhPSu at no extra
charge.[CC]
The Plaintiff is represented by:
Russell S. Thompson, IV, Esq.
THOMPSON CONSUMER LAW GROUP, PC
11445 E Via Linda, Ste. 2 No. 492
Scottsdale, AZ 85259
Telephone: (602) 388-8898
Facsimile: (866) 317-2674
E-mail: rthompson@ThompsonConsumerLaw.com
The Defendant is represented by:
Vikram Sohal, Esq.
NEMECEK & COLE
16255 Ventura Blvd, 300
Encino, CA 91436
Telephone: (818) 788-9500
Facsimile: (818) 501-0328
E-mail: vsohal@nemecek-cole.com
LINDSAY ENTERTAINMENT: Loses Bid to Decertify Class in Tassy Suit
-----------------------------------------------------------------
In the class action lawsuit captioned as GLORIA TASSY, individually
& on behalf of all similarly situated, v. LINDSAY ENTERTAINMENT
ENTERPRISES, INC., Case No. 3:16-cv-00077-RGJ-RSE (W.D. Ky.), the
Hon. Judge Rebecca Grady Jennings entered an order:
1. denying the Defendant's motion to decertify class;
2. granting the Plaintiffs' motion for partial summary
judgment as to whether they are considered employees under
the Fair Labor Standards Act (FLSA);
3. granting the Plaintiffs' motion for partial summary
judgment regarding the applicable statute of limitations
under the FLSA; and
4. granting the Plaintiffs' motion for Partial Summary
Judgment regarding liquidated damages under the FLSA.
Lindsey is a private company financials.
A copy of the Court's order dated March 15, 2022 is available from
PacerMonitor.com at https://bit.ly/3tWrg7K at no extra charge.[CC]
LOUISIANA: $100-Million Settlement in Flooding Class Suit Reached
-----------------------------------------------------------------
Jeff Palermo at louisianaradionetwork.com reports that Louisiana is
closing in on reaching a 100-million dollar settlement on a
class-action lawsuit that dates back to 1983 when 1,200 home and
business owners in Tangipahoa Parish sued the state over flooding
caused by the construction of Interstate 12.
"We've worked on this for several years, negotiating a resolution
that we thought was reasonable and fair, we are not comfortable
that we've reached that number and we are proposing to the
Legislature that we satisfy this obligation that the state has and
put this to rest," said Commissioner of Administration Jay
Dardenne.
The state already has 21-million dollars set aside to pay for the
settlement and Dardenne says they need the Legislature to allocate
45-million dollars this year and another 35-million dollars next
year to satisfy the settlement.
"So there had been some piecemeal attempts to put a little money
towards this settlement, but this is a comprehensive settlement
that will satisfy the judgment and end it once and for all, but the
Legislature will have to agree with this," said Dardenne.
About a third of the 1,200 plaintiffs in the class action have died
waiting for this lawsuit to be resolved. Dardenne says the money
will go to their heirs.
"A lot of these businesses have closed, a lot of folks are deceased
but their heirs are going to be entitled to receive what the
deceased individuals otherwise would have gotten, that will be a
process and it will take some time and it will be involved," said
Dardenne. [GN]
MAPLEBEAR INC: Court Grants Arbitration Bid in Levine Class Suit
----------------------------------------------------------------
In the case, STEPHEN LEVINE, individually and on behalf of all
others similarly situated, Plaintiff v. MAPLEBEAR, INC. (d/b/a
INSTACART), Defendant, Civil Action No. 21-cv-11617-AK (D. Mass.),
Judge Angel Kelley of the U.S. District Court for the Distrct of
Massachusetts granted the Defendant's Motion to Compel Individual
Arbitration and Stay the Action.
I. Introduction
Plaintiff Levine, a delivery driver who worked for Defendant
Instacart in 2019 and 2020, brought the putative class action in
Suffolk County Superior Court, alleging the Defendant has willfully
misclassified its delivery drivers as independent contractors,
rather than employees, in violation of Massachusetts law. The
Plaintiff argues that the misclassification has deprived him of
employee benefits, such as a minimum hourly wage, reimbursement for
expenses incurred while working for the Defendant, and earned sick
time.
The Defendant timely removed the action and then filed a Motion to
Compel Individual Arbitration and Stay the Action and a memorandum
in support thereof.
II. Background
The Defendant provides on-demand grocery shopping and same-day
grocery delivery services to customers via a mobile phone
application and website. Customers use the Instacart platform to
connect with full-service shoppers and delivery drivers engaged by
the Defendant. These drivers shop for and deliver groceries and
other items the customer orders from retailers. According to the
Defendant, deliveries are primarily local. In 2021, drivers
traveled an average of 7 miles for intrastate deliveries and 10.5
miles for interstate deliveries. Additionally, 99.8% of all
Instacart driver deliveries in the United States have been entirely
intrastate in the past three years. The Plaintiff worked as a
driver for the Defendant from approximately July 2019 to July 2020.
All drivers, including the Plaintiff, must review and sign an
"Independent Contractor Agreement" when applying to be an Instacart
driver. The Agreement contains an arbitration provision requiring
drivers to arbitrate disputes with the Defendant on an individual
basis, including disputes related to their classification as
independent contractors. Applicants are able to sign the Agreement
by applying a pre-populated signature to the signature box or by
using a finger to sign in the signature box. The Plaintiff signed
the Agreement on July 3, 2019.
Drivers have a 30-day window to opt out of the arbitration
provision by notifying Instacart in writing. The Plaintiff never
opted out of the arbitration provision after signing the Agreement
in July 2019. He then signed two updated versions of the Agreement,
using the same process described above, in January and December
2020. Although the Plaintiff opted out of the arbitration
provisions when he signed the updated 2020 Agreements, the 2020
Agreements informed drivers that "if they agreed to a previous
arbitration agreement with Instacart and opt out of this
Arbitration Provision, they remain bound by that prior arbitration
agreement and must arbitrate any and all claims or disputes covered
by that prior arbitration agreement, regardless of whether those
claims or disputes arise after the date they execute this
Agreement."
The parties dispute the enforceability of the arbitration provision
as it applies to the Plaintiff's claims. The Plaintiff alleges
Defendant improperly classifies its drivers as independent
contractors and consequently does not reimburse drivers for
expenses incurred while working for Instacart, including vehicle
maintenance, gas, insurance, and phone and data expenses. H ealso
claims drivers are paid by the delivery and do not receive an
hourly wage or paid sick time. The Defendant argues that these
claims are governed by the Agreement, and the Plaintiff must
arbitrate his claims on an individual basis.
III. Discussion
The Plaintiff contends that the arbitration provision is not
enforceable, as he is a transportation worker exempt from
arbitration under the Federal Arbitration Act ("FAA"), 9 U.S.C.
Section 1, and Massachusetts law prohibits class action waivers as
a matter of public policy. The FAA's Section 1 "transportation
workers exemption" provides that the FAA "shall not apply 'to
contracts of employment of seamen, railroad employees, or any other
class of workers engaged in foreign or interstate commerce.'" The
Defendant argues that collateral estoppel bars the Plaintiff from
litigating that issue here and, regardless, the Plaintiff is not
subject to the transportation workers exemption.
A. Collateral Estoppel Does Not Apply
The Defendant points to Immediato v. Postmates, Inc., No.
20-cv-12308-RGS, 2021 WL 828381 (D. Mass. Mar. 4, 2021), to argue
that collateral estoppel prevents the Plaintiff, who is also a
named plaintiff in Immediato, from litigating whether the
transportation workers exemption applies in the case. In
particular, it claims the Plaintiff "actually litigated the issue
of Section 1's application to workers who deliver food and other
items from local retailers," and the Immediato court's resolution
of this issue was "essential" and "sufficiently final" to have
preclusive effect under Massachusetts law.
The Plaintiff responds that collateral estoppel does not apply
because Instacart and Postmates are separate parties and are not in
privity with one another. He also contends that the facts at issue
here and in Immediato are distinguishable.
Judge Kelley says, the critical question is whether the issue in
Immediato is identical to the issue in the case. She finds that the
facts in the case and in Immediato are, admittedly, very similar.
Postmates, like Instacart, uses an online and mobile platform to
connect customers with drivers who deliver goods from a "variety of
local merchants. The plaintiffs in Immediato, like the Plaintiff,
signed arbitration agreements and later brought suit alleging they
were improperly classified as independent contractors rather than
employees. The court in Immediato found that the FAA's
transportation workers exemption did not apply. Still, the issue in
Immediato is not identical to the issue in the case.
Contrary to the Defendant's assertion, Jduge Kelley finds that the
issue is not simply "whether local delivery drivers of groceries
and other retail goods qualify as transportation workers under
Section 1 of the FAA." Rather, the issue in Immediato was whether
Postmates drivers are subject to the transportation workers
exemption such that the defendant there could compel arbitration.
Postmates employees may complete more interstate trips, pick up
different kinds of goods from a greater variety of merchants, and
be bound by slightly different agreements than Instacart drivers.
As such, whether the Plaintiff is subject to the FAA's
transportation workers exemption as an Instacart driver -- as
opposed to a Postmates driver -- presents a slightly different
inquiry, and collateral estoppel does not apply.
B. The Federal Arbitration Act's Transportation Workers Exemption
Does Not Apply
The Plaintiff contends that Instacart drivers are transportation
workers engaged in interstate commerce, and he therefore is exempt
from the FAA pursuant to Section 1 and cannot be compelled to
arbitrate. The Defendant argues that Instacart drivers are not
engaged in interstate commerce and therefore the transportation
workers exemption does not apply.
Judge Kelley holds that Instacart does not contract for or control
the interstate journey of the goods that drivers deliver locally;
rather, the suppliers, distributors, grocery stores, and merchants
facilitate the interstate journey of the goods. Instacart drivers
merely contract with customers as "part of the driver's normal
local service" to take goods "from the finish of the goods'
interstate journey" to the Instacart customer.
Moreover, the "class of workers" -- Instacart drivers -- "as a
whole is not engaged in interstate commerce at all." As such,
Instacart drivers "are among a class of workers engaged primarily
in local intrastate transportation, some of whom infrequently find
themselves crossing state lines, and are thus fundamentally unlike
seamen and railroad employees when it comes to their engagement in
interstate commerce. To conclude the Plaintiff is a transportation
worker engaged in interstate commerce would be too broad a reading
of Section 1.
C. The FAA Requires Plaintiff to Arbitrate His Claims on an
Individual Basis
The FAA provides that arbitration agreements "shall be valid,
irrevocable, and enforceable, save upon such grounds as exist at
law or in equity for the revocation of any contract." A party
seeking to compel arbitration pursuant to the FAA usually must show
that (1) a valid agreement to arbitrate exists; (2) the movant is
entitled to invoke the arbitration clause; (3) the other party is
bound by that clause; and (4) the claims asserted come within the
clause's scope.
Because the arbitration provision clearly and unmistakably
delegates questions regarding the scope of the provision to the
arbitrator, Judge Kelley need only determine whether a valid
agreement to arbitrate exists as a matter of state law. She finds
that the Plaintiff signed the agreement, thereby assenting to its
terms and entering a binding and valid agreement. Because the
Agreement provides that parties may bring claims against the other
only in their individual capacities, and may not bring, pursue or
act as a plaintiff, class representative, or class member in any
purported class or collective proceeding or action other than on an
individual basis, the Plaintiff may arbitrate only his individual
claims.
D. The Court Will Stay the Case and Will Not Grant Interlocutory
Review
The Plaintiff argues that the Court should certify its order
granting the Motion for interlocutory review pursuant to 28 U.S.C.
Section 1292(b) or, in the alternative, dismiss the action and
thereby allow for immediate appeal.
Neither action is necessary, Judge Kelley holds. She says, the case
does not involve "a controlling question of law as to which there
is substantial ground for difference of opinion," such that
"immediate appeal from the order may materially advance the
ultimate termination of the litigation." The First Circuit has
clearly established a framework for examining issues of the type
discussed in the case. Interlocutory review is therefore
unnecessary. Further, the FAA provides that the Court "shall on
application of one of the parties stay the trial of the action
until such arbitration has been had in accordance with the terms of
the agreement." Judge Kelley therefore will not dismiss the
action.
III. Conclusion
For the foregoing reasons, Judge Kelley granted the Defendant's
Motion to Compel Individual Arbitration and Stay the Action. The
Clerk will stay the case pending arbitration.
A full-text copy of the Court's March 18, 2022 Memorandum & Order
is available at https://tinyurl.com/5e2cemks from Leagle.com.
MATTERPORT INC: Stemmelin Loses Bid for Class Certification
-----------------------------------------------------------
In the class action lawsuit captioned as JOHN STEMMELIN v.
MATTERPORT, INC., et al., Case No. 3:20-cv-04168-WHA (N.D. Cal.),
the Hon. Judge William Alsup entered an order denying plaintiff's
motion to certify a national class and an Illinois class of those
who enrolled in defendants' 3D camera partner program.
-- Illinois Class:
"All persons in Illinois who purchased Matterport's Pro,
Pro2, or 6 Pro2 Lite 3D Cameras and Matterport's "Cloud
Service Plan," and became a Matterport Service Partner
("MSP") since December 2, 2016.
-- National Class:
"All persons in the United States who purchased
Matterport's Pro, Pro2, or Pro2 Lite 3D Cameras and
Matterport's "Cloud Service Plan," and became a Matterport
Service Partner ("MSP") within the applicable limitations
period."
The Court says that the order did not rely on any of the material
Stemmelin objected to, which he filed in contravention of Civil
Local Rule 7-3. The objections are accordingly denied as moot.
Matterport also filed its objections to Stemmelin's filings in
support of his reply brief in contravention of Civil Local Rule
7-3. In addition, this order did not rely on any of the material
cited in Matterport's objections to plaintiff's reply briefing and
supporting documentation. That objection is also accordingly denied
as moot.
Stemmelin asserts claims pursuant to ICFA and BOSL on behalf of the
Illinois class, and asserts the remaining, non-Illinois state-law
claims on behalf of the national class. This order follows full
briefing and oral argument (held telephonically due to the COVID-19
pandemic).
Matterport markets 3D cameras that create 3D models of real-world
places, which have many potential applications, including in
connection with real estate sales." Supporting these cameras,
Matterport also offers services such as software for
three-dimensional image manipulation and cloud storage.
The Plaintiff John Stemmelin of Illinois saw Matterport's ads for
the MSP program around January 2017 and purchased his first camera
in February. In May, he applied for the MSP program. After many
hours learning to use the cameras and attempting to start his own
3D scanning business, Stemmelin had spent more than $22,000 but had
little to show for it. Allegedly, behind Matterport's façade
lurked several problems. Stemmelin lists several misrepresentations
and omissions Matterport purportedly used to deceive consumers: (1)
the Matterport 3D camera is easy to use, and it is easy to learn
and perform 3D scanning; (2) Matterport will provide the training
materials MSPs need to learn to operate the 3D camera and perform
3D scans; (3) the MSP program is a lucrative business opportunity
and MSPs will recoup their initial investment within a matter of
months; (4) Matterport will provide MSPs with pre-qualified local
leads from businesses and individuals who are serious about
purchasing 3D scanning services; and (5) Matterport will provide
the tools and resources to 15 ensure the success of the MSP's
business.
Stemmelin brought this lawsuit in June 2020, alleging violations,
among other claims, unfair and false advertising laws as well as
numerous states' business opportunity laws on behalf of a putative
class of the deceived. A November 2020 order granted defendants'
motion to dismiss.
A copy of the Court's order dated March 14, 2022 is available from
PacerMonitor.com at https://bit.ly/3JUvB11 at no extra charge.[CC]
MAXUM INDEMNITY: Consolidation of Henry and Gaudet Suits Denied
---------------------------------------------------------------
In the case, BRANDON HENRY, JR., ET AL. v. MAXUM INDEMNITY COMPANY,
ET AL. SECTION "D" (1), Civil Action No. 20-2995-WBV-JVM, No. c/w
20-2997-WBV-JVM., c/w 20-2998-WBV-JVM (E.D. La.), Judge Wendy B.
Vitter of the U.S. District Court for the Eastern District of
Louisiana denied the Motion to Consolidate Three Henry Lawsuits
With the Gaudet Lawsuit, filed by Landmark American Insurance Co.
and Capitol Specialty Insurance Corp.
I. Background
The consolidated matter arises from the BP Deepwater Horizon oil
spill that occurred on April 20, 2010. Three separate lawsuits were
filed regarding the alleged actions and inactions of certain
attorneys and law firms while representing the interests of the
plaintiffs in the Deepwater Horizon Economic and Property Damage
Settlement Program (the "BP Settlement Program"), in which members
of the Economic and Property Damages Settlement Class ("BP Class")
made claims to be compensated for their subsistence losses caused
by the BP oil spill.
The Plaintiffs in each lawsuit allege that they were solicited by
Howard L. Nations, APC, Howard L. Nations, Cindy L. Nations, The
Nicks Law Firm, LLC, Shantrell Nicks, Rueb & Motta, APLC, The Rueb
Law Firm, APLC, Joseph A. Motta, Attorney at Law, APLC, Joseph A.
Motta, and Gregory D. Rueb (collectively, the "Attorney
Defendants"), to file BP Subsistence Claims stemming from the BP
oil spill. The Plaintiffs further allege that the Attorney
Defendants filed a claim on behalf of each plaintiff, received a
DHECC Incompleteness Notice, Denial Notice FWA Notice, or Appeal
Denial regarding each Plaintiff's BP Subsistence Claim, submitted
amended claim forms for each plaintiff that were patently
incorrect, inaccurate, and false, and that, due to those actions,
each plaintiff's BP Subsistence Claim was denied.
As a result, the Plaintiffs sued the Attorney Defendants for breach
of contract, legal malpractice, and fraud, and later named several
professional liability insurers as additional defendants. The three
cases were removed to the Court and consolidated at the request of
the parties (the "Henry matter").
Landmark and Capitol Specialty, two of the professional liability
insurers, filed the instant Motion, seeking to consolidate the case
with Civil Action No. 19-10356, Deborah A. Gaudet, et al. v. Howard
L. Nations, APC, et al. (the "Gaudet matter"), which is also
pending before the Court. Landmark and Capitol Specialty assert
that the Plaintiffs in the Henry and Gaudet matters have both sued
the Attorney Defendants based on their alleged representation of
the Plaintiffs in connection with their BP Subsistence Claims.
Landmark and Capitol Specialty allege that the cases should be
consolidated for discovery and trial purposes under Fed. R. Civ. P.
42 because: (1) the four lawsuits are all pending before this
Court; (2) the four lawsuits involve plaintiffs who are making
similar claims against the same Attorney Defendants; (3)
consolidation will not result in or risk causing confusion or
prejudice to the trier of fact; (4) confusion or prejudice will
likely occur if the lawsuits are not consolidated; (5) the claims
asserted in the four lawsuits arise out of the same or similar
factual allegations; (6) there is a material risk of inconsistent
adjudications if the common questions of law and facts relating to
liability and damages are separately tried; (7) consolidation will
conserve judicial resources and serve and promote the interests of
judicial efficiency and economy; and (8) consolidating the four
lawsuits should materially mitigate and reduce the parties' costs,
expenses, and fees that would otherwise result if the two lawsuits
proceed through the remainder of the discovery process and trial
twice.
They also assert that the Henry and Gaudet matters "involve
interrelated factual issues on which a jury will need to be
educated, and which will involve a significant overlap in
witnesses" and exhibits. Relying upon the Court's ruling granting
consolidation in Pride Centric Resources, Inc. v. LaPorte, Landmark
and Capitol Specialty seem to suggest that the facts in the Henry
and Gaudet matter are inextricably intertwined, such that
consolidation would promote the interests of judicial efficiency
and economy.
The Plaintiffs oppose consolidation, asserting that while the cases
are pending before the same Court and involve some common parties
and basic facts, the risk of juror confusion greatly outweighs any
benefit of consolidation. They point out that the Henry plaintiffs
were excluded from the Gaudet matter, which was originally filed as
a class action, because the Gaudet plaintiffs allege that their BP
Subsistence Claims were denied because they were either: (1) never
filed; (2) untimely filed; or (3) filed without the required
documentation.
In contrast, the Henry plaintiffs allege that their BP Subsistence
Claims were filed and denied post-review, due to distinct acts of
malpractice and contractual breaches during post-review
consideration. Distinguishing the Pride case relied upon by
Landmark and Capitol Specialty, the Plaintiffs claim that the Henry
and Gaudet matters do not rely upon each other's facts, and that a
finding of malpractice for a Gaudet plaintiff has no bearing on any
Henry plaintiff, and vice versa.
The Plaintiffs further assert that consolidating the two cases
could cause juror confusion because the jury would be required to
hear evidence on the entire prereview process for BP Subsistence
Claims as to the Gaudet plaintiffs, as well as evidence on the
entire post-review process for the Henry plaintiffs. They maintain
that while there is some overlap of basic facts, the Gaudet trial
will focus on the pre-review phase because that is where the
alleged malpractice occurred, while the Henry trial will focus on
the post-review phase because that is where the alleged malpractice
occurred in that case. Finally, the Plaintiffs assert that
consolidation for discovery purposes would likewise be
inappropriate because the cases are in different stages of
preparedness for trial. According to them, there has been extensive
discovery in the Gaudet matter and only limited discovery in the
Henry matter. As a result, they argue that the Motion to
Consolidate should be denied.
The Nations Defendants also oppose consolidation, asserting that it
may lead to jury confusion and, more importantly, that Capitol
Specialty seeks consolidation to avoid providing coverage,
including a defense and indemnity in the Henry matter to its
insureds, the Nations Defendants. They explain that their policy
with Capitol Specialty provides $3 million of coverage for the
policy period of Jan. 25, 2020 to Jan. 25, 2021, and provides
coverage "on a claims made and reported basis and applies only to
claims first made against the insured during the policy period."
They claim that Capitol Specialty's apparent plan is to seek and
obtain consolidation and then assert that the very act of
consolidation is evidence that it need not provide any coverage for
the Henry matter.
The Nations Defendants argue that extensive differences between the
Gaudet and Henry matters unmistakably show that coverage for the
Henry matter rests with Capitol Specialty. Like Plaintiffs, the
Nations Defendants point out that the Gaudet plaintiffs contend
that their BP Subsistence Claims were not considered because they
were never filed, filed too late, or filed with insufficient
documentation, whereas the Henry plaintiffs assert that their BP
Subsistence Claims were considered by the DHECC, but were denied
based upon the way the Attorney Defendants handled their claims and
appeals. While the Nations Defendants do not oppose consolidation
for discovery purposes, they oppose consolidation for trial
purposes due to the risk of jury confusion.
In response to the Plaintiffs' Opposition brief, Landmark and
Capitol Specialty assert that the Plaintiffs admitted that the
evidence is cumulative and will overlap in the Henry and Gaudet
matters, and contend that any risk of jury confusion can be
addressed with jury instructions and a special verdict form. Then,
for the first time, they contest the Court's decision to try the
Henry matter in several sets or flights on the issue of liability
and damages, asserting that conducting three or four flights of
separate trials would be costly, time constraining, and result in
duplicative litigation and proceedings.
Citing Seventh Amendment concerns regarding similar facts and
issues being adjudicated by different juries in separate trials,
Landmark and Capitol Specialty contend that these constitutional
concerns and the interests of judicial efficiency and economy will
be best served by consolidating the Henry and Gaudet matters and
conducting a single trial. Alternatively, if the Court denies
consolidation, Landmark and Capitol Specialty ask the Court to
consider scheduling the Gaudet matter for trial before the first
set of Henry plaintiffs, since the Gaudet matter was filed over a
year before the Henry matter and "no material discovery has been
undertaken" in the Henry matter.
In response to the Nations Defendants' Opposition brief, and their
assertion that the Henry and Gaudet matters are factually distinct
based upon when the alleged legal malpractice occurred in each
case, Landmark and Capitol Specialty contend that, "This single
factor does not preclude consolidation." Landmark and Capitol
Specialty assert that every Gaudet and Henry plaintiff has alleged
that: (1) they suffered economic damages resulting from the BP oil
spill; (2) they were solicited by the Attorney Defendants based on
those damages; and (3) they subsequently began the claims-filing
process with the Attorney Defendants through the DHECC to recover
for those damages. They maintain that, under the Court's precedent,
"consolidation is clearly favored." They contend that this is
apparent by "the complete lack of analysis or supporting caselaw in
the Nations Defendants' Opposition, which simply concludes that the
similarities between the Gaudet lawsuit and the three Henry
lawsuits do not meet the criteria for consolidation outlined by the
Fifth Circuit." Landmark and Capitol Specialty do not address the
Nations Defendants' allegation that Capitol Specialty's arguments
for consolidation are pretextual and that it seeks consolidation in
an attempt to avoid providing coverage to the Nations Defendants in
the Henry matter.
II. Analysis
While there are some overlapping facts between the Henry and Gaudet
matters, Judge Vitter, exercising broad discretion, finds that
consolidation is not appropriate under Fed. R. Civ. P. 42(a). While
the two actions are pending before the Court and involve many of
the same defendants, she agrees with the Plaintiffs and the Nations
Defendants that there is a significant risk of jury confusion if
the cases are consolidated, based upon the distinct facts of each
case.
Judge Vitter finds that presenting the jury with information
regarding the pre-review process for the Gaudet plaintiffs and the
post-review process for the Henry plaintiffs is likely to cause
juror confusion, and that consolidation will not reduce the time or
cost of trying the cases separately. She further finds that the
parties appear to agree that the Henry and Gaudet matters are at
different stages of preparedness for trial, asserting that
extensive discovery has taken place in the Gaudet matter, but that
there has been only "limited discovery" or "no material discovery"
in the Henry matter.
Finally, Judge Vitter notes that Landmark and Capitol Specialty
failed to address in their Reply brief the Nations Defendants'
allegation that Capitol Specialty's assertions that consolidation
would promote judicial efficiency and economy are pretextual and
that Capitol Specialty seeks consolidation to avoid providing
coverage to its insureds, the Nations Defendants, in the Henry
matter. She is troubled by both the allegations of the Nations
Defendants and the silence of Capitol Specialty on this point.
Nonetheless, Judge Vitter need not address these allegations in the
Order, as she finds that a majority of the five factors considered
by courts in the Circuit in determining whether to grant
consolidation weigh against consolidation in the case.
III. Conclusion
For the foregoing reasons, Judge Vitter denied the Motion to
Consolidate Three Henry Lawsuits With the Gaudet Lawsuit.
A full-text copy of the Court's March 18, 2022 Order & Reasons is
available at https://tinyurl.com/yjcvppe2 from Leagle.com.
MAYFIELD CONSUMER: Johnson Class Suit Removed to W.D. Kentucky
--------------------------------------------------------------
The case styled ELIJAH JOHNSON, WILLIAM ALIFF, MATTHEW BARBER, MARY
SMITH, HALEY CONDER, MCKAYLA EMERY, MATTHEW RILEE VALIANT, and JOHN
LAWSON, individually and on behalf of all others similarly situated
v. MAYFIELD CONSUMER PRODUCTS, LLC, Case No. 22-CI-00040, was
removed from the Circuit Court of Grant County, Kentucky, to the
U.S. District Court for the Western District of Kentucky on March
25, 2022.
The Clerk of Court for the Western District of Kentucky assigned
Case No. 5:22-cv-00044-TBR to the proceeding.
The case arises from the Plaintiffs' physical, mental and/or
emotional injuries and/or death as a result of the December 10,
2021 tornado striking and demolishing the Defendant's place of
business.
Mayfield Consumer Products, LLC is a consumer products manufacturer
based in Mayfield, Kentucky. [BN]
The Defendant is represented by:
Russell B. Morgan, Esq.
Edmund S. Sauer, Esq.
BRADLEY ARANT BOULT CUMMINGS LLP
Roundabout Plaza
1600 Division Street, Suite 700
Nashville, TN 37203
Telephone: (615) 252-2311
Facsimile: (615) 252-6311
E-mail: rmorgan@bradley.com
esauer@bradley.com
- and –
Megan U'Sellis, Esq.
FISHER & PHILLIPS LLP
220 West Main Street, Suite 1700
Louisville, KY 40202
Telephone: (502) 561-3963
E-mail: musellis@fisherphillips.com
MCDONALD'S CORP: Food Contains Unsafe Chemicals, Clark Suit Says
----------------------------------------------------------------
LARRY CLARK, individually and on behalf of all others similarly
situated, Plaintiff v. MCDONALD'S CORPORATION, Defendant, Case
3:22-cv-00628-NJR (S.D. Ill., Mar. 28, 2022) alleges that certain
food products of the Defendant contain unsafe per- and
polyfluoroalkyl substances (PFAS).
The Plaintiff alleges in the complaint that each time an American
buys a Big Mac, they are exposed to high levels of PFAS. PFAS are a
group of synthetic chemicals known to be harmful to both the
environment and humans. PFAS are known as "forever chemicals"
because the carbon-fluorine bonds in PFAS are extremely strong and
thus are not appreciably degraded under environmental conditions.
The continued use of PFAS is, by their nature, unsustainable,
because it will necessarily lead to a greater concentration of PFAS
in the environment. In some case, PFAS will survive over 1000
years.
The Defendant allegedly represents that the products are safe and
effective for their intended use, and reasonable consumers expect
that products marketed and sold to be ingested will not contain
dangerous, synthetic chemicals like PFAS. Contrary to the
Defendant's representations, the products are not safe because they
contain PFAS, which have a negative impact on the health of
humans.
McDonald'S Corporation franchises and operates fast-food
restaurants in the global restaurant industry. The Company's
restaurants serves a variety of value-priced menu products in
countries around the world. [BN]
The Plaintiff is represented by:
Steffan T. Keeton, Esq.
The KEETON FIRM LLC
100 S Commons, Ste. 102
Pittsburgh PA 15212
Telephone: (888) 412-5291
Email: stkeeton@keetonfirm.com
MEDLINE INDUSTRIES: Ponce Labor Suit Removed to C.D. California
---------------------------------------------------------------
The case styled MARIBEL PONCE, individually and on behalf of all
others similarly situated v. MEDLINE INDUSTRIES INC.; MEDLINE
INDUSTRIES, LP; and DOES 1 through 100, inclusive, Case No.
CVRI2104267, was removed from the Superior Court of the State of
California for the County of Riverside to the U.S. District Court
for the Central District of California on March 25, 2022.
The Clerk of Court for the Central District of California assigned
Case No. 5:22-cv-00531-AB-MRW 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 regular and overtime wages, failure
to provide meal periods or compensation in lieu thereof, failure to
provide rest periods or compensation in lieu thereof, failure to
pay wages of terminated or resigned employees, knowing and
intentional failure to comply with itemized employee wage statement
provisions, unfair competition, and violation of Labor Board
Section 2699.
Medline Industries, LP, formerly known as Medline Industries, Inc.,
is an American healthcare company, with its principal place of
business in Northfield, Illinois. [BN]
The Defendant is represented by:
Steven A. Groode, Esq.
Jannine E. Kranz, Esq.
LITTLER MENDELSON, P.C.
2049 Century Park East, 5th Floor
Los Angeles, CA 90067-3107
Telephone: (310) 553-0308
Facsimile: (800) 715-1330
E-mail: sgroode@littler.com
jkranz@littler.com
METROPOLITAN TOWER: Hearing on Class Cert Bid Reset to June 15
--------------------------------------------------------------
In the class action lawsuit captioned as Pitt v. Metropolitan Tower
Life Insurance Company, Case No. 3:20-cv-00694 (S.D. Cal.), the
Hon. Judge Jinsook Ohta entered an order resetting the hearing on
the pending motion to certify class, motion for summary judgment,
and motion for partial summary judgment for June 15, 2022.
Metropolitan Tower operates as an insurance company.
The nature of suit states Contract -- Insurance.[CC]
NATIONWIDE MUTUAL: Court Denies Bid to Dismiss Sweeney ERISA Suit
-----------------------------------------------------------------
In the case, RYAN SWEENEY, ET AL., Plaintiffs v. NATIONWIDE MUTUAL
INSURANCE COMPANY, ET AL., Defendants, Case No. 2:20-CV-1569 (S.D.
Ohio), Judge James L. Graham of the U.S. District Court for the
Southern District of Ohio, Eastern Division:
(i) granted in part the Plaintiffs' motion to exclude; and
(ii) denied the Defendants' motion to dismiss.
I. Background
Plaintiffs Ryan Sweeney and Bryan Marshall bring the putative class
action asserting violations of the Employment Retirement Security
Act of 1974, as amended, ("ERISA"), 29 U.S.C. 1001, et seq.
At the center of the Plaintiffs' lawsuit is the Nationwide Savings
Plan. The Plan is a tax-qualified defined contribution pension plan
available to eligible employees of Nationwide Mutual and
subsidiaries of Nationwide Mutual with U.S.-based employees. The
Plan is sponsored by Nationwide Mutual Insurance and managed by the
Benefits Investment Committee ("BIC"). The BIC is comprised of
employees of Nationwide and its affiliates (collectively "the BIC
Defendants").
The Plan is intended to encourage saving and provide retirement
income for Nationwide employees, former employees, and their
beneficiaries. Plan participants do so by making tax-deferred
contributions which are matched by their employer. This money is
allocated to a Plan participant's individual account. Plan
participants have some control over how the assets in their
individual accounts are invested. They can choose among the fund
options selected by the BIC.
The most popular Plan investment option is the Guaranteed
Investment Fund. The Guaranteed Investment Fund is a
benefit-responsive group annuity contract between the Plan and
Nationwide Life Insurance Co. Nationwide Life is owned by
Nationwide Financial Services, Inc., an indirect subsidiary of
Nationwide Mutual. Contributions to the Guaranteed Investment Fund
are transferred to and maintained in Nationwide Life's general
account. Nationwide Life invests the assets in its general
account.
The Plan is credited a percentage of its investment in the
Guaranteed Investment Fund as the assumed growth on investment.
This percentage is called a crediting rate. The crediting rate is
set annually by Nationwide Mutual through Nationwide Life.
Nationwide Life provides custodial, actuarial, investment, and
accounting services to the Plan related to the Guaranteed
Investment Fund. In return, Nationwide Life compensates itself by
reducing the credit otherwise owed to the Plan. The amount of
compensation is not dictated by contract. Instead, Nationwide
Mutual determines the amount of compensation it will earn.
Nationwide Life is also compensated for the opportunity cost of
having to set aside money to meet its contracted-for guaranteed
obligations. This opportunity cost charge is 10.33%.
The Defendants hired Callan, an investment consulting firm, to
examine the Guaranteed Investment Fund. Callan noted that "fees are
an important component of the analysis of any investment product"
but that "our analysis has no line of sight to the spread of the
Guaranteed Fund." Callan concluded that "the Plan could eliminate
the Guaranteed Investment Fund."
The Plaintiffs filed the present putative class action on Jan. 26,
2020. They then filed an amended complaint on Oct. 5, 2020.
The putative class consists of the participants and beneficiaries
of the Plan from March 26, 2014 through the date of judgment. The
Plaintiffs' amended complaint alleges that four provisions of ERISA
were violated: (1) the fiduciary duties listed in 29 U.S.C. Section
1104 (Claim I); (2) the prohibited transactions listed in 29 U.S.C.
Section 1106(a) (Claim II); (3) the prohibited transactions listed
in 29 U.S.C. Section 1106(b) (Claim III); and (4) the prohibition
of assets of the plan inuring to the benefit of the employer in 29
U.S.C. Section 1103(c) (Claim IV).
As for Claim I, the Plaintiffs allege that the BIC Defendants
breached fiduciary duties by: (i) maintaining the Guaranteed
Investment Fund on unreasonable terms considering the Guaranteed
Investment] Fund's performance relative to those realized by other
investors in Nationwide Life's general account; Nationwide Mutual's
obligation and failure to pay expenses associated with the
Guaranteed Investment Fund; and their inherent conflict; (ii)
failing to seek reimbursement of expenses from Nationwide Mutual
associated with the Guaranteed Investment Fund; and (iii)
permitting prohibited transfers of Plan assets to Nationwide Life,
from which Nationwide Mutual profited.
The Plaintiffs allege that Nationwide Mutual breached its fiduciary
duties by: (i) failing to reimburse the expenses associated with
the Guaranteed Investment Fund as required by the Plan Document;
(ii) dealing with the Savings on terms that were beneficial to
Nationwide Mutual at the expense of employees' retirement savings;
and (iii) earning compensation that was prohibited by ERISA's
prohibition against self-dealing.
As for Claim II, the Plaintiffs allege that the BIC Defendants,
Nationwide Life, and Nationwide Mutual engaged in transactions
between the Plan and a party in interest in violation of 29 U.S.C.
Section 1106(a) by causing the Plan to transfer Plan assets to
Nationwide Life's general account, by causing the Plan to benefit
Nationwide Life by permitting Nationwide Life to use Plan assets to
earn compensation and support its business operations, by causing
the Plan to continue, authorize, and renew the service agreement
with Nationwide Life, and by causing the Plan to transfer assets to
Nationwide Life that were used to compensate Nationwide Mutual and
support Nationwide Mutual's business.
As for Claim III, the Plaintiffs allege that the BIC defendants,
Nationwide Life, and Nationwide Mutual engaged in transactions
between the Plan and a fiduciary in violation of 29 U.S.C. Section
1106(b) by making decisions on the investment of Plan assets in
self-interested ways and Nationwide Mutual's receipt of
compensation through Nationwide Life in connection with the
Guaranteed Investment Fund.
As for Claim IV, the Plaintiffs allege that the BIC, Nationwide
Life, and Nationwide Mutual had plan assets inure to the benefit of
Nationwide Life and Nationwide Mutual, employers of employees in
the Plan, in violation of 29 U.S.C. Section 1103(c).
The Defendants filed a motion to dismiss all of the Plaintiffs'
claims on Nov. 5, 2020. Attached to their motion to dismiss are
declarations of Dustin M. Koenig and John M. Towarnicky. The
declaration of Dustin M. Koenig contained a copy of the group
annuity contract at issue in this case, a copy of the enrollment
guide provided to employees eligible to participate in the Plan,
copies of annual disclosures, and a copy of an excerpt from
Nationwide Life's Annual Statement filed for the year ended Dec.
31, 2019.
On Dec. 11, 2020, the Plaintiffs filed a response to Defendants'
motion to dismiss and a motion to exclude. In their motion to
exclude, the Plaintiffs request the Court to exclude from
consideration all exhibits attached to the Defendants' motion to
dismiss except for the copy of the group annuity contract.
The Defendants filed a reply to their motion to dismiss and a
response to the Plaintiffs' motion to exclude on Jan. 8, 2021. They
withdrew Towarnicky's declaration and, in their reply brief,
attached the Callan Report, disclosures provided by Nationwide Life
to the Plan, and the Plan as amended and restated on Jan. 1, 2019.
The reply brief also directed the Court's attention to a website
called MissionSquare Plus Fund.
The Plaintiffs filed their reply to the Motion to Exclude on Jan.
22, 2021, requesting that the Court also excludes the exhibits
attached to the Defendants' reply brief.
II. Discussion
A. Motion to Exclude
The Defendants want the Court to consider seven documents: (1) the
group annuity contract; (2) the enrollment guide provided to
employees eligible to participate in the Plan; (3) Annual
disclosures provided by Nationwide Life to the Plan pursuant to 29
C.F.R. Section 2550.401c-1(c)(4) for the periods of May 1, 2013 to
April 30, 2020; (4) an excerpt from Nationwide Life's statutory
annual statement filed with state departments of insurance for the
year ended December 31, 2019; (5) the Callan report; (6) documents
related to initial and separate disclosures provided by Nationwide
Life to the Plan pursuant to 29 C.F.R. Section 2550.401c-1(c)(3),
and (7) the Plan as amended and restated on Jan. 1, 2019.
The Plaintiffs additionally ask the Court to decline to consider
the Callan Report and the Plan as amended and restated Jan. 1, 2019
because the Defendants presented those documents in their reply
brief to their motion to dismiss.
Judge Graham will consider the group annuity contract, the Callan
report, the Plan as amended and restated Jan. 1, 2019, and the
annual statement filed with the state departments of insurance in
deciding the Defendants' motion to dismiss.
B. Motion to Dismiss
The Defendants move for dismissal on three grounds: (1) the alleged
violations involving plan assets are meritless because the assets
in Nationwide Life's general fund were not plan assets; (2) the
Plaintiffs inadequately pleaded a claim of wrongful and excessive
compensation; and (3) the defense in 29 U.S.C. Section 1108(b)(5)
defeats the alleged violations of 29 U.S.C. Section 1106(a) and
(b).
1. The Existence of Plan Assets
The Defendants first argue that several of the Plaintiffs' claims
fail because the assets paid by the Plan and placed into Nationwide
Life's general account, as well as the proceeds earned on those
assets, do not constitute plan assets for purposes of ERISA. More
specifically, they move for dismissal of the portions of Claim I
which allege breaches of the duty of prudence and loyalty as well
as the portions which allege self-dealing; the prohibited
transactions claim in Claim III; and the anti-inurement claim in
Claim IV.
The safe harbor applies only if certain conditions are met. First,
the insurer must have made certain initial disclosures. Second, the
insurer must make certain annual disclosures. Third, where the
Transition Policy is issued by an issuer wholly owned by the
employer that maintains the employee benefit plan, the statutory
immunity from the prohibited transactions rules set forth in 29
U.S.C. 1108(b)(5) must apply. Finally, the policy must have certain
termination procedures.
The Defendants attempt to show that they satisfy these conditions
by attaching documents to their motion to dismiss and reply brief.
Judge Graham opines that it is inappropriate for the Court to
consider the disclosures at this stage. He cannot now determine
whether the Defendants are entitled to the safe harbor and does not
reach the issue of what, if any, impact the safe harbor has on the
Plaintiffs' claims.
2. Pleading Adequacy of Fiduciary Duty Claim
The Defendants moved to dismiss parts of Claim I, asserting that
the complaint fails to adequately plead a breach of fiduciary duty
related to excessive compensation under 29 U.S.C. Section
1104(a)(1)(A)-(B). The three specific allegations within Claim I on
which Defendants move are: (1) that the BIC breached its fiduciary
duties by "permitting prohibited transfers of Plan assets to
Nationwide Life, from which Nationwide profited;" (2) that
Nationwide Mutual breached its fiduciary duties by "dealing with
the Plan on terms that were beneficial to Nationwide Mutual at the
expense of employees' retirement savings;" and (3) that Nationwide
Mutual breached its fiduciary duties by "earning compensation that
was prohibited by ERISA's prohibition against self-dealing."
Two issues are implicated by the Defendants' argument: (1) the
construction of Claim I and (2) the pleading requirements for Claim
I.
Judge Graham is persuaded by the Plaintiffs' interpretation of its
amended complaint. The at-issue assertions in Claim I are general
allegations that the BIC and Nationwide Life breached their
fiduciary duties by making decisions in a self-interested manner.
Therefore, Judge Graham construes the at-issue portions of Claim I
as asserting (1) that BIC permitted transfers of Plan assets to
Nationwide Life with the intention of profiting Nationwide Mutual;
(2) that Nationwide Mutual's dealings with the Plan were intended
to benefit Nationwide Mutual; and (3) that Nationwide Mutual earned
compensation which resulted from its self-interested actions.
Moreover, Judge Graham holds that the Defendants correctly assert
that where a claim of disloyalty is premised on a claim of
imprudence, the disloyalty claim fails if the imprudence claim is
inadequately pled. But the at-issue portions of Claim I center
around allegations of self-dealing, not necessarily allegations
that Defendants acted otherwise imprudently. The Plaintiffs assert
that the structure of control was such that the BIC and Nationwide
Life, the two entities which created the Guaranteed Investment
Fund, are under the influence of Nationwide Mutual. The Plaintiffs
believe that this structure resulted in the Defendants making
self-interested decisions, such as setting crediting rates lower
than those offered to unaffiliated plans. The Plaintiffs further
support their belief by claiming that when the BIC hired Callan, an
investment consultant, to provide fee benchmarking for the
Guaranteed Investment Fund, they failed to provide the consultant
all of the necessary information. This is enough to adequately
plead a breach of fiduciary duty claim.
C. Pleading Adequacy of Prohibited Transactions Claims
The Plaintiffs assert in Claims II and III that the Defendants
engaged in transactions prohibited by 29 U.S.C. Section 1106(a) and
(b). The Defendants posit that the Plaintiffs' allegations are
insufficient because the affirmative defense in 29 U.S.C. Section
1108(b)(5) applies and provides an exemption to those prohibited
transactions. In other words, they take the position that because
an affirmative defense exists, the Plaintiffs had the duty of
pleading adequate facts to show that the affirmative defense does
not apply.
The Defendants are wrong, Judge Graham opines. Courts may grant
motions to dismiss "where the undisputed facts conclusively
establish an affirmative defense as a matter of law." 29 U.S.C.
Section 1108(b)(5) requires, among other things, that the plan pay
no more than adequate consideration to the insurer. The Plaintiffs'
amended complaint does not assert facts which conclusively
establish that the Plan pays no more than adequate consideration.
Therefore, the Defendants have not shown that Claims II and III
fail as a matter of law.
III. Conclusion
For these reasons, Judge Graham granted in part the Plaintiffs'
motion to exclude and denied the Defendants' motion to dismiss.
A full-text copy of the Court's March 18, 2022 Opinion & Order is
available at https://tinyurl.com/efchu5kz from Leagle.com.
NEW HAMPSHIRE: Ct. Approves Discovery Plan in G.K. Suit
-------------------------------------------------------
In the class action lawsuit captioned as G.K., by their next
friend, Katherine Cooper, et al., v. Christopher Sununu, Governor
of New Hampshire, et al., Case No. 1:21-cv-00004-PB (D.N.H.), the
Hon. Judge Andrea K. Johnstone entered an order approving the
parties proposed discovery plan, submitted on January 25, 2022,
with the following changes:
-- Close of Fact Discovery: December 15, 2022
-- Deadline for Motion for Class December 15, 2022
Certification:
-- Substitution of Proposed Class November 1, 2022
Representatives:
The Court said, "Depositions Each side shall take a maximum of 15
depositions, exclusive of depositions of third parties, experts,
and depositions conducted pursuant to Fed. R. Civ. P. 30(b)(6). The
plaintiffs may also serve successive 30(b)(6) notices regarding
discrete topics, but no such notices can be served later than 30
days before the close of discovery. The parties shall meet and
confer regarding the duration of any deposition taken pursuant to
Rule 30(b)(6)."
A copy of the Court's order dated March 11, 2022 is available from
PacerMonitor.com at https://bit.ly/3uExatt at no extra charge.[CC]
NEW YORK: Bid to Decertify Class Tossed in Betances Suit
--------------------------------------------------------
In the class action lawsuit captioned as PAUL BETANCES, et al., v.
BRIAN FISCHER, in his capacity as Commissioner of the New York
State Department of Correctional Services (DOCS), and in his
individual capacity, et al., Case No. 1:11-cv-03200-RWL (S.D.N.Y.),
the Hon. Judge Robert W. Lehrburger entered an order denying the
Defendants' motion to decertify the class at this juncture.
The Court has considered the Defendants' arguments and finds them
to be without merit. Within fourteen days of entry of this
decision, the parties shall file a joint letter setting forth (1) a
schedule for completing notice to the class, (2) a schedule for
filing any outstanding pre-trial materials required by this Court's
individual rules, (3) a description of any remaining pre-trial in
limine issues that have not been resolved, and (4) dates during the
third quarter of 2022 when the parties are not available for
trial.
The District Court previously certified the class and found
Defendants personally liable; the Second Circuit affirmed and
remanded the case to determine the appropriate remedies. The
parties consented to jurisdiction before this Court for the
remainder of proceedings.
Paul Betances, Lloyd A. Barnes, and Gabriel Velez -- individually
and on behalf of others similarly situated -- bring this class
action against Brian Fischer, Anthony J. Annucci, and Terence Tracy
for violations of their civil rights.
A copy of the Court's order dated March 14, 2022 is available from
PacerMonitor.com at https://bit.ly/3JToVA7 at no extra charge.[CC]
NEXTGEN LEADS: Faces Weiss Suit Over Telephone Marketing Practices
------------------------------------------------------------------
MELINDA WEISS, individually, and on behalf of all others similarly
situated v. NEXTGEN LEADS, LLC, a California company, Case No.
3:22-cv-00404-DMS-AGS (S.D. Cal., March 28, 2022) alleges that
NextGen Leads made unsolicited telemarketing calls and sent a text
message advertisement to Plaintiff's residential telephone number
that is listed on the National Do Not Call Registry.
NextGen leads generates potential customers for its insurance
company clients. To generate leads, NextGen Leads makes
telemarketing calls to consumers who have never had a relationship
with them and who have never consented to receive their calls, says
the suit.[BN]
The Plaintiff is represented by:
Rachel E. Kaufman, Esq.
KAUFMAN P.A.
237 South Dixie Highway, 4th Floor
Coral Gables, FL 33133
Telephone: (305) 469-5881
E-mail: rachel@kaufmanpa.com
NIELSEN HOLDINGS: Court Junks as Moot Gordon Bid to Certify Class
-----------------------------------------------------------------
In the class action lawsuit captioned as Gordon v. Nielsen Holdings
PLC, et al., Case No. 1:18-cv-07143 (S.D.N.Y.), the Hon. Judge
Jesse M. Furman entered an order denying as moot motion to certify
class.
The motion is denied as moot in light of motion to approve / Notice
of Plaintiffs' Motion for Preliminary Approval of Class Action
Settlement.
The nature of suit states Other Statutes –
Securities/Commodities/Exchange.
Nielsen is an American information, data and market measurement
firm. Nielsen operates in over 100 countries and employs
approximately 44,000 people worldwide.[CC]
NIKE INC: Seeks to File Under Seal Portions of Class Cert. Bid
--------------------------------------------------------------
In the class action lawsuit captioned as KELLY CAHILL, SARA
JOHNSTON, LINDSAY ELIZABETH, and HEATHER HENDER, individually and
on behalf of similarly situated, v. NIKE, INC., an Oregon
Corporation, Case No. 3:18-cv-01477-JR (D. Or.), Nike moves the
Court for an order to file under seal limited unredacted portions
of Plaintiffs' motion for Class Certification and select documents
filed in support thereof pursuant to Section 4 of the Protective
Order on file in this case.
Nike seeks to redact portions of the Motion and supporting exhibits
to the extent they reveal the names of former and current Nike
employees that appear in the context of internal complaints as the
complainants, subjects or witnesses. The parties have reached an
agreement on this topic except with regard to three former
employees who were the subjects of complaints and allegations
regarding sexual harassment and gender discrimination. The proposed
redactions in question are narrowly tailored to prevent the
unauthorized dissemination of sensitive personal information.
Good cause exists to permit Nike to file the following categories
of information under seal: (1) the names of any individuals
(complainants, subjects and witnesses) named in the context of
allegations regarding sexual harassment or gender discrimination at
Nike; (2) briefing and declarations filed in relation to
Plaintiffs' motion to compel Nike's privileged pay equity,
promotion and compensation analyses that reflect confidential legal
strategy; and (3) Nike's confidential and proprietary compensation
information, including Nike's compensation structure as well as pay
shortfall conclusions derived from Attorneys' Eyes Only ("AEO")
compensation data of current and former Nike employees who are not
parties to the litigation. Mindful of the requirement that parties
should take a judicious approach to filing under seal, Nike has
gone to great lengths to ensure that the overwhelming majority of
Plaintiffs' Motion and supporting evidence is un-redacted and open
to the public. The limited material Nike seeks to seal is content
Nike produced to Plaintiffs in discovery, which contains
confidential, proprietary business information and/or confidential,
private information about non-parties to this litigation.
Nike does not share the content it seeks to seal externally and
only disseminates it internally where there exists a business
need-to-know. Indeed, Nike restricts access and keeps this
information confidential because, if publicly disclosed, it would
impinge upon non-parties' privacy rights or present competitors an
unfair business advantage regarding Nike's compensation structure,
practices and data. Keeping this information confidential through
sealing is the only way to avoid these harms. Nike's narrowly
tailored motion to seal certain confidential materials, therefore,
meets the applicable legal standard and should be granted.
Nike and Plaintiffs had several meet and confer communications
regarding proposed redactions to Plaintiffs' Motion and supporting
documents, including a phone call on January 18, 2022, and several
emails exchanged between January 11, 2022 and February 22, 2022.
Unable to reach agreement, on February 23, 2022, Plaintiffs
requested, in writing, to unseal their class certification filings
pursuant to Paragraph 4 of the Protective Order. Nike and
Plaintiffs then continued to meet and confer via email and
telephone about Nike's proposed redactions in hopes of avoiding
unnecessary motion practice.
A copy of the Defendant's motion dated March 15, 2022 is available
from PacerMonitor.com at https://bit.ly/3NDon3s at no extra
charge.[CC]
The Defendant is represented by:
Amy Joseph Pedersen, Esq.
STOEL RIVES LLP
760 SW Ninth Avenue, Suite 300
Portland, OR 97205
Telephone: (503) 224-3380
Facsimile: (503) 220-2480
E-mail: amy.joseph.pedersen@stoel.com
- and -
Daniel Prince, Esq.
Zach P. Hutton, Esq.
Felicia A. Davis, Esq.
Laura Zabele, Esq.
PAUL HASTINGS LLP
515 South Flower Street, 25th Floor
Los Angeles, CA 90071
Telephone: (213) 683-6000
Facsimile: (213) 627-0705
E-mail: danielprince@paulhastings.com
zachhutton@paulhastings.com
feliciadavis@paulhastings.com
laurazabele@paulhastings.com
NORMANDY, MO: Davis Seeks Certification of Class Action
-------------------------------------------------------
In the class action lawsuit captioned as ANGELA DAVIS; QUINTON M.
THOMAS; ROELIF EARL CARTER; and MEREDITH WALKER, v. CITY OF
NORMANDY, Case No. 4:18-cv-01514-RLW (E.D. Mo.), the Plaintiffs ask
the Court to enter an order certifying the lawsuit as a class
action, for settlement purposes only, pursuant to Rule 23 of the
Federal Rules of Civil Procedure.
The Plaintiffs and Defendant have negotiated a Settlement Agreement
which will fully resolve Plaintiffs' claims under the Due Process
and Equal Protection clauses of the Fourteenth Amendment to the
United States Constitution. The Agreement negotiated between the
parties provides that, in order to facilitate a full and final
settlement of Plaintiffs' claims, the parties shall seek to have
this lawsuit certified as a class action pursuant to Rule 23(b)(3)
of the Federal Rules of Civil Procedure.
The parties agree that three Settlement Classes should be defined
as follows:
Jailed Class: All persons who, between September 10, 2013,
and May 12, 2021, were ARRESTED or INCARCERATED by or on
behalf of Defendant City of Normandy (as identified by the
Plaintiffs' Expert Witness Dr. William Rogers or the Claims
Administrator during the course of the Litigation);
Paid Fines Class: All persons who, between September 10,
2013, and May 12, 2021, PAID a fine, fee, cost, surcharge, or
other monetary sum to Defendant City of Normandy; and
Warrant Class: All persons who were the subject of an ARREST
WARRANT issued between September 10, 2013, and May 12, 2021,
by the Defendant City of Normandy.
For settlement purposes only, the Parties agree that this action
meets the requirements of Rule 23(a)(1)-(4), Rule 23(b)(2), and
Rule 23(b)(3) of the Federal Rules of Civil Procedure.
A copy of the Parties motion to certify class dated March 15, 2022
is available from PacerMonitor.com at https://bit.ly/3uG2Oqq at no
extra charge.[CC]
The Plaintiff is represented by:
John M. Waldron, Esq.
Blake A. Strode, Esq.
John M. Waldron, Esq.
Maureen G.V. Hanlon, Esq.
ARCHCITY DEFENDERS, INC.
440 North 4th Street, Ste. 390
Saint Louis, MO 63102
Telephone: (855) 724-2489
Facsimile: (314) 925-1307
E-mail: jwaldron@archcitydefenders.org
- and -
S. Zachary Fayne, Esq.
ARNOLD & PORTER KAYE SCHOLER LLP
Three Embarcadero Center, 10th Floor
San Francisco, CA 94111
Telephone: (415) 471-3114
Facsimile: (415) 471-3400
E-mail: Zachary.fayne@arnoldporter.com
The Attorneys for the Defendant, are:
Jason S. Retter, Esq.
Blake D. Hill, Esq.
Michelle Stallings, Esq.
HELLMICH, HILL & RETTER, LLC
1049 N. Clay Ave.
Kirkwood, MO 63122
Telephone: (314) 646-1110
E-mail: jason@hellmichhillretter.com
NOVARTIS: Direct Purchasers Seek to Certify Class
-------------------------------------------------
In the class action lawsuit captioned as re Novartis and Par
Antitrust Litigation, Case No. 1:18-cv-04361-AKH (S.D.N.Y.), the
Direct Purchaser Class Plaintiffs (DPPs) move the Court pursuant to
the Federal Rules of Civil Procedure for an order:
1. certifying the following class (the Direct Purchaser
Class):
"All persons or entities in the United States, including
its territories, possessions, and the Commonwealth of
Puerto Rico, who purchased Exforge directly from Novartis,
or who purchased a generic version of Exforge directly
from Par, at any time during the Class Period from
September 21, 2012, until March 30, 2015;"
Excluded from the Class are Defendants and their officers,
directors, management and employees, predecessors,
subsidiaries and affiliates, and all federal governmental
entities.
2. appointing Drogueria Betances, LLC, Rochester Drug Co-
Operative, Inc., FWK Holdings, LLC, and KPH Healthcare
Services, Inc. a/k/a Kinney Drugs, Inc. as representatives
of the Direct Purchaser Class; and
3. confirmign Garwin Gerstein & Fisher LLP as Lead Counsel
for the Direct Purchaser Class;
The DPPs include Drogueria Betances, LLC, Rochester Drug
Co-Operative, Inc., FWK Holdings, LLC, and KPH Healthcare Services,
Inc. a/k/a Kinney Drugs, Inc.
A copy of the Court's order Plaintiffs' motion to certify class
dated March 15, 2022 is available from PacerMonitor.com at
https://bit.ly/3IVxI39 at no extra charge.[CC]
The Attorneys for Plaintiff Rochester Drug Co-Operative, Inc. and
the Direct Purchaser Class, are:
Kristyn Fields, Esq.
Peter Kohn, Esq.
Joseph T. Lukens, Esq.
FARUQI & FARUQI, LLP
685 Third Ave., Floor 26
New York, NY 10017
Telephone: (212) 983-9330
Facsimile: (212) 983-9331
E-mail: kfields@faruqilaw.com
pkohn@faruqilaw.com
jlukens@faruqilaw.com
- and -
David F. Sorensen, Esq.
Caitlin G. Coslett, Esq.
BERGER MONTAGUE PC
1818 Market Street, Suite 3600
Philadelphia, PA 19103
Telephone: (215) 875-3000
E-mail: dsorensen@bm.net
ccoslett@bm.net
The Attorneys for the Plaintiff FWK Holdings, LLC and the Direct
Purchaser Class, are:
Robert N. Kaplan
Matthew P. McCahill
Ralph E. Labaton
KAPLAN FOX & KILSHEIMER, LLP
850 Third Avenue, 14th Floor
New York, NY 10022
Telephone: (212) 687-1980
Facsimile: (212) 687-7714
E-mail: rkaplan@kaplanfox.com
mmccahill@kaplanfox.com
rlabaton@kaplanfox.com
- and -
Joseph M. Vanek, Esq.
David P. Germaine, Esq.
SPERLING & SLATER, P.C.
55 W. Monroe, Suite 3200
Chicago, IL 60603
Telephone: (312) 641-3200
Facsimile: (312) 641-6492
E-mail: jvanek@sperling-law.com
dgermaine@sperling-law.
The Attorneys for Plaintiff KPH Healthcare Services, Inc., a/k/a
Kinney Drugs, Inc. and the Direct Purchaser Class, are:
Michael L. Roberts, Esq.
ROBERTS LAW FIRM, P.A.
20 Rahling Circle
Little Rock, AR 72223
Telephone: (501) 821-5575
Facsimile: (501) 821-4474
E-mail:L mikeroberts@robertslawfirm.us
The Attorneys for Plaintiff Drogueria Betances, LLC Interim Lead
Counsel for the Direct Purchaser Class, are:
Bruce E. Gerstein, Esq.
Joseph Opper, Esq.
Dan Litvin, Esq.
Deborah A. Elman, Esq.
GARWIN GERSTEIN & FISHER LLP
88 Pine Street, 10th Floor
New York, NY 10005
Telephone: (212) 398-0055
Facsimile: (212) 764-6620
E-mail: bgerstein@garwingerstein.com
jopper@garwingerstein.com
dlitvin@garwingerstein.com
delman@garwingerstein.com
The Attorneys for Plaintiff Drogueria Betances, LLC and the Direct
Purchaser Class, are:
David Raphael, Esq.
Erin Leger, Esq.
Susan Segura, Esq.
SMITH SEGURA RAPHAEL & LEGER, LLP
221 Ansley Boulevard
Alexandria, LA 71303
Telephone: (318) 445-4480
Facsimile: (318) 487-1741
E-mail: draphael@ssrllp.com
eleger@ssrllp.com
ssegura@ssrllp.com
- and -
Stuart Des Roches, Esq.
Andrew Kelly, Esq.
Dan Chiorean, Esq.
ODOM & DES ROCHES
Poydras Center
650 Poydras Street, Suite 2020
New Orleans, LA 70130
Telephone: (504) 522-0077
Facsimile: (504) 522-0078
E-mail: stuart@odrlaw.com
akelly@odrlaw.com
dchiorean@odrlaw.com
- and -
Russell A. Chorush,Esq.
HEIM PAYNE & CHORUSH LLP
1111 Bagby, Suite 2100
Houston, TX 77002
Telephone: (713) 221-2000
Facsimile: (713) 221-2021
E-mail: rchorush@hpcllp.com
mjones@hpcllp.com
NUVE MIGUEL: Must File Opposition to Class Cert Bid by May 2
------------------------------------------------------------
In the class action lawsuit captioned as Margarito Hernandez
Santos, on behalf of himself, FLSA Collective Plaintiffs, and the
Class v. Nuve Miguel Corp. d/b/a Key Foods and Luis H. Urgiles,
Case No. 1:21-cv-01335-JPO-RWL (S.D.N.Y.), the Hon. Judge Robert W.
Lehrburger entered an order that:
-- the Defendants' opposition to May 2, 2022
the Plaintiff's motion for
class certification shall be
filed by;
-- The Defendants' reply shall be May 16, 2022
filed by:
His Deputy Clerk will reach out to the parties to schedule a
settlement conference, Judge Lehrburger says.
A copy of the Court's order dated March 15, 2022 is available from
PacerMonitor.com at https://bit.ly/3NDZTaf at no extra charge.[CC]
The Defendants are represented by:
Joseph Dimitrov, Esq.
LITCHFIELD CAVO LLP
420 Lexington Avenue, Suite 2104
New York, NY 10170
Telephone: (212) 818-0590
Facsimile: (212) 434-0105
NYC HARLEM: Initial Approval of Settlement in Medina Sought
-----------------------------------------------------------
In the class action lawsuit captioned as MARISOL MEDINA,
individually and on behalf of all others similarly situated, v. NYC
HARLEM FOODS INC, BRONX 163 FOODS INC., BRONX MARKET FOODS INC, NYC
143 FOODS INC, NYC 96 FOODS INC, NYC 89 FOODS INC, NYC PARK FOODS
INC, NYC 125 FOODS INC, NYC 159 FOODS INC, NYC 155 FOODS INC,
SUNNYSIDE BK QSR INC, NYC 116 BK QSR INC, NYC 116 FOODS INC, NYC
121 FOODS INC, NYC 114 FOODS INC, BRONX PROSPECT FOODS INC., NYC
145 FOODS INC., NYC LENOX FOODS INC., NYC 178 FOODS INC., BRONX 138
FOODS INC., RV EASTCHESTER FOODS INC., NYC 148 FOODS INC., NYC
LEXINGTON FOODS INC., NYC 161 FOODS INC., BRONX 170 FOODS INC.,
ANDHRA FOODS INC., SOMYA FOODS, INC., RVN FOODS INC., and SRINIVASA
RAO TUMMALAPENTA, individually, Case No. 1:21-cv-01321-VSB
(S.D.N.Y.), the Plaintiff asks the Court to enter an order granting
preliminary approval of the proposed settlement, certification of
the settlement class, appointment of Plaintiffs' Counsel as class
counsel, and approval of Plaintiff's notice of proposed settlement
of class action lawsuit, together with such other and further
relief as the Court deems necessary and proper.
The Defendants purchase and resell produce and other grocery
items.
A copy of the Plaintiff's motion to certify class dated March 14,
2022 is available from PacerMonitor.com at https://bit.ly/36IzI1J
at no extra charge.[CC]
The Plaintiff is represented by:
James Bouklas, Esq.
357 Veterans Memorial Highway
Commack, NY 11725
Telephone: (516) 742-4949
E-mail: james@bglawny.com
OAK PARK: Ricker Seeks Unpaid OT, Regular Wages Under FLSA, WWPCL
-----------------------------------------------------------------
NAUSIA RICKER, on behalf of herself and all others similarly
situated v. OAK PARK PLACE OF OAK CREEK, LLC and OAK PARK PLACE AL
1 HOLDING, LLC, Case No. 2:22-cv-00383 (E.D. Wisc., March 28, 2022)
is a collective and class action brought pursuant to the Fair
Labor Standards Act of 1938 (FLSA), and Wisconsin's Wage Payment
and Collection Laws (WWPCL) for unpaid overtime compensation,
unpaid straight time (regular) and/or agreed upon wages, liquidated
damages, costs, attorneys' fees, declaratory and/or injunctive
relief, and/or any such other relief the Court may deem
appropriate.
The Defendants allegedly operated an unlawful compensation system
that deprived and failed to compensate the Plaintiff and all other
current and former hourly-paid, non-exempt employees for all hours
worked and work performed each workweek, including at an overtime
rate of pay for each hour worked in excess of 40 hours in a
workweek, by shaving time (via electronic timeclock rounding) from
Plaintiff's and all other hourly-paid, non-exempt employees' weekly
timesheets for pre-shift and post-shift hours worked and/or work
performed, to the detriment of said employees and to the benefit of
Defendants, in violation of the FLSA and WWPCL.
In approximately May 2020, the Defendants hired the Plaintiff as an
hourly-paid, non-employee in the position of Med Passer / Personal
Care Worker.
During the entirety of Plaintiff's employment with Defendants,
Defendants compensated the Plaintiff on an hourly basis and/or with
an hourly rate of pay.
During the entirety of Plaintiff's employment with Defendants,
Plaintiff was a non-exempt employee for purposes of the FLSA and
WWPCL.
The Plaintiff brings this action on behalf of herself and all other
similarly situated employees as authorized under the FLSA, 29
U.S.C. section 216(b). The similarly situated employees include:
"All hourly-paid, non-exempt employees employed by the
Defendants within the three years immediately preceding the
filing of this Complaint who have not been compensated for all
hours worked in excess of 40 hours in a workweek at the proper,
correct, and/or lawful overtime rate of pay."
Oak Park Place Oak Creek is a senior care facility in Oak Creek,
Wisconsin.[BN]
The Plaintiff is represented by:
James A. Walcheske, Esq.
Scott S. Luzi, Esq.
David M. Potteiger, Esq.
WALCHESKE & LUZI, LLC
235 N. Executive Drive, Suite 240
Brookfield, WI 53005
Telephone: (262) 780-1953
Facsimile: (262) 565-6469
E-Mail: jwalcheske@walcheskeluzi.com
sluzi@walcheskeluzi.com
dpotteiger@walcheskeluzi.com
OBI SEAFOODS: Bid to Extend Deadlines Tossed without Prejudice
--------------------------------------------------------------
In the class action lawsuit captioned as MARIJA PAUNOVIC and DUSAN
PAUNOVIC, individually and on behalf of all others similarly
situated, v. OBI SEAFOODS LLC and OCEAN BEAUTY SEAFOODS LLC, Case
No. 2:21-cv-00884-MJP (W.D. Wash.), the Hon. Judge Marsha J.
Pechman entered an order denying without prejudice Parties'
stipulated motion to extend deadlines:
The Parties ask the Court to extend the deadline for Plaintiffs'
motion for class certification to a date 60 days after the Court
rules on their pending motion for conditional certification. The
Parties also ask that all related deadlines and the trial date be
similarly extended. As good cause, the Parties suggest that they
are currently disputing the "degree and scope" of additional
class-related discovery and that more time is needed to resolve the
dispute and complete discovery before the class certification
motion is filed.
The Court finds this explanation insufficient to justify a 60-day
extension of the motion for class certification deadline or any
other case deadlines or the trial date. The Parties have not
identified what specific discovery is needed, what the dispute
between the parties is, why the dispute cannot be quickly resolved,
why the discovery cannot be obtained before the class certification
motion is due, or how much more time is needed to obtain the
discovery sought. No discovery related motion has been filed, and
the Court is without sufficient record to consider what extension,
if any, might be appropriate, and what impact that may have on the
existing case schedule. On this thin record, the Court denies the
Stipulated Motion without prejudice to a renewed motion that
provides far greater clarity than what has been provided.
The Court separately notes that it has taken the Motion for
Conditional Certification under advisement and intends to issue its
order within 30 days of the Motion's noting date of February 25,
2022. The clerk is ordered to provide copies of this order to all
counsel.
OBI Seafoods was created by merging the Alaska salmon and Gulf of
Alaska groundfish operations.
A copy of the Court's order dated March 11, 2022 is available from
PacerMonitor.com at https://bit.ly/3JQ1uHU at no extra charge.[CC]
OBI SEAFOODS: Deadline to File Class Status Bid Extended to May 24
------------------------------------------------------------------
In the class action lawsuit captioned as MARIJA PAUNOVIC and DUSAN
PAUNOVIC, individually and on behalf of all others similarly
situated, v. OBI SEAFOODS LLC, an Alaska corporation, and OCEAN
BEAUTY SEAFOODS LLC, an Alaska corporation, Case No.
2:21-cv-00884-MJP (W.D. Wash.), the Parties agree and stipulate,
subject to the Court's approval, to an extension as follows:
Current New
Deadline Deadline
-- Deadline for Plaintiffs March 25, 2022 May 24, 2022
to File their Motion
for Class Certification:
-- Deadline for Defendants' April 22, 2022 June 21, 2022
Response to the Motion
for Class Certification:
-- Deadline for Plaintiffs' May 6, 2022 July 5, 2022
Reply to the Motion
for Class Certification:
-- Deadline for Discovery June 8, 2022 July 15, 2022
Related Motions:
-- Deadline for Discovery: July 8, 2022 Aug. 31, 2022
A copy of the Parties' motion dated March 16, 2022 is available
from PacerMonitor.com at https://bit.ly/3vbSk2v at no extra
charge.[CC]
The Plaintiffs are represented by:
Toby J. Marshall, Esq.
Ryan Tack-Hooper, Esq.
TERRELL MARSHALL LAW GROUP PLLC
936 North 34th Street, Suite 300
Seattle, WA 98103-8869
Telephone: (206) 816-6603
Facsimile: (206) 319-5450
E-mail: tmarshall@terrellmarshall.com
rtack-hooper@terrellmarshall.com
- and -
Tamara Kenworthey, Esq.
KENWORTHEY LAW
137 Fifth Avenue, 9th Floor
New York, NY 10010
Telephone: (718) 344-5746
E-mail: tkenworthey@kenwortheylaw.com
The Defendants are represented by:
Renea I. Saade, Esq.
Douglas E. Smith, Esq.
LITTLER MENDELSON P.C.
500 L Street, Suite 201
Anchorage, AL 99501
Telephone: (907) 561-1214
Facsimile: (907) 561-1215
E-mail: rsaade@littler.com
desmith@littler.com
OMEGA HEALTHCARE: Setzer, Holtzman Seek to Certify Class
--------------------------------------------------------
In the class action lawsuit re: Omega Healthcare Investors, Inc.
Securities Litigation, Case No. 1:17-cv-08983-NRB (S.D.N.Y.), the
Lead Plaintiff Royce Setzer and Additional Plaintiff Earl Holtzman
ask the Court to enter an order:
1. Certifying this Action as a class action for a class
consisting of:
"All purchasers of Omega Healthcare Investors, Inc.
securities between May 3, 2017, through October 31, 2017,
both dates inclusive, excluding Defendants, officers and
directors of Omega, members of their immediate families
and their legal representatives, heirs, successors or
assigns, and any entity in which Defendants have or had a
controlling interest;"
2. Appointing Plaintiffs as Class Representatives for the
Class;
3. Appointing The Rosen Law Firm, P.A. as Class Counsel; and
4. Granting such other and further relief as the Court deems
necessary and proper.
Omega Healthcare is a real estate investment trust (REIT).
A copy of the Plaintiff's motion dated March 16, 2022 is available
from PacerMonitor.com at https://bit.ly/3K6PYIp at no extra
charge.[CC]
The Lead Plaintiff is represented by:
Jacob A. Goldberg, Esq.
Gonen Haklay, Esq.
Leah Heifetz-Li, Esq.
THE ROSEN LAW FIRM, P.A.
101 Greenwood Avenue, Suite 440
Jenkintown, PA 19046
Telephone: (215) 600-2817
Facsimile: (212) 202-3827
E-mail: jgoldberg@rosenlegal.com
ghaklay@rosenlegal.com
lheifetz@rosenlegal.com
- and -
Phillip Kim, Esq.
Laurence M. Rosen, Esq.
275 Madison Avenue, 34th Floor
New York, NY 10016
Telephone: (212) 686-1060
Facsimile: (212) 202-3827
E-mail: lrosen@rosenlegal.com
pkim@rosenlegal.com
OPHTHOTECH CORP: Settlement in Micholle Suit Gets Initial Nod
-------------------------------------------------------------
In the class action lawsuit captioned as FRANK MICHOLLE,
individually and on behalf of all others similarly situated, and
SHEET METAL WORKERS' PENSION PLAN OF SOUTHERN CALIFORNIA, ARIZONA
AND NEVADA, v. OPHTHOTECH CORPORATION, DAVID R. GUYER, AND SAMIR
PATEL, Case No. 1:17-cv-01758-VSB (S.D.N.Y.), the Hon. Judge Vernon
S. Broderick entered an order granting the Plaintiffs' unopposed
motion for preliminary approval of class action settlement,
certification of the class, and approval of notice to the class.
The Court said, "The parties submitted a proposed order setting
forth the settlement procedure and schedule; however, because this
motion has been pending for a while, the schedule in the proposed
order has become out of date. Accordingly, the parties shall file
an updated proposed order on or before March 25, 2022. Further, the
previous unopposed motion for class certification, is hereby denied
without prejudice to be refiled should I later deny final approval
to the settlement. The Clerk of Court is respectfully directed to
close the open motions on the docket."
-- Settlement Class:
"all Persons who purchased or acquired Ophthotech common
stock during the [period between March 2, 2015 through
December 12, 2016, inclusive];"
Excluded from the Class are: (i) Defendants; (ii) members
of the immediate family of each Defendant; (iii) any person
who was an officer or director of Ophthotech during the
Class Period; (iv) any entity in which any Defendant has or
had a controlling interest; (v) any corporate parent and/or
affiliate of Ophthotech; and (vi) the legal
representatives, heirs, successors-in-interest, or assigns
of any such excluded Person;
Also excluded from the Class is any Person who would
otherwise be a Member of the Class but who validly and
timely requests exclusion in accordance with the
requirements set by the Court.
Ophthotech, a biopharmaceutical company, develops novel
therapeutics to treat diseases of the back of the eye, including
age-related macular degeneration (AMD).
A copy of the Court's order dated March 14, 2022 is available from
PacerMonitor.com at https://bit.ly/3tRXTDy at no extra charge.[CC]
The Plaintiffs are represented by:
David Avi Rosenfeld, Esq.
Christopher Thomas Gilroy, Esq.
Ellen Anne Gusikoff Stewart, Esq.
Erin Whitney Boardman, Esq.
Philip Thomas Merenda, III, Esq.
Ashley M. Price, Esq.
Darryl J. Alvarado, Esq.
ROBBINS GELLER RUDMAN & DOWD LLP
- and -
Shannon Lee Hopkins, Esq.
Levi & Korsinsky, LLP
Stamford, CT
The Defendants are represented by:
Fraser Lee Hunter, Jr., Esq.
Jeremy Todd Adler, Esq.
Michael G. Bongiorno, Esq.
WILMER CUTLER PICKERING
HALE & DORR LLP
New York, NY
PERKIOMEN VALLEY: Must File Bid to Dismiss Suit by April 12
-----------------------------------------------------------
In the class action lawsuit captioned as DOE 1, et al., v.
PERKIOMEN VALLEY SCHOOL DISTRICT, et al., Case No. 2:22-cv-00287-WB
(E.D. Pa.), the Hon. Judge Wendy Beetlestone entered an scheduling
order as follows:
1. The Defendants shall file a Motion April 12, 2022
to Dismiss on or before:
2. The Plaintiffs shall file their April 30, 2022
response to the Defendants' Motion
to Dismiss on or before:
3. All fact discovery shall be Sept. 14, 2022
completed on or before:
4. Any expert reports are due Oct. 14, 2022
no later than:
5. Any discovery depositions of Dec. 22, 2022
expert witnesses shall be
completed by
6. If the parties do not plan Jan. 20, 2023
on filing Daubert motions,
they shall so report to the
Court (Chambers) on or before:
7. Any Daubert motions shall be Jan. 20, 2023
filed and served on or before:
8. Any responses to Daubert motions Feb. 3, 2023
shall be filed and served on
or before:
9. Any reply briefs regarding Feb. 10, 2023.
Daubert motions shall be
filed and served on or before:
10. Any motions for summary judgment April 10, 2023
shall be filed and served
on or before:
11. Responses to motions for summary May 2, 2023
judgment shall be filed and
served on or before:
12. The Plaintiffs shall file and July 10, 2023
serve their opening class
certification brief on:
The Plaintiffs include are JOHN DOE 1 and JANE DOE 1, in their own
Capacity and as parents of CHILD DOE 1, JOHN DOE 2 and JANE DOE 2,
in their own Capacity as parents of CHILD DOE 2, JANE DOE 3, in her
own capacity and as parent of CHILD DOE 3 on on behalf of similarly
situated.
The Defendants include PERKIOMEN VALLEY SCHOOL DISTRICT, a
Pennsylvania governmental entity, JASON SAYLOR, MATTHEW DORR, ROWAN
KEENAN, DON FOUNTAIN, KIM MARES, REENA KOLAR, SARAH EVANS-BROCKETT,
LAURA WHITE and TAMMY CAMPLI, all Individual elected offices sued
in their official capacity as members of the BOARD OF SCHOOL
DIRECTORS OF THE PERKIOMEN VALLEY SCHOOL DISTRICT, a Pennsylvania
elected legislative body.
The Perkiomen Valley School District is a school district based in
central Montgomery County, Pennsylvania.
A copy of the Court's order dated March 15, 2022 is available from
PacerMonitor.com at https://bit.ly/372k2WQ at no extra charge.[CC]
RENT-A-DAUGHTER: Anderson Seeks Conditional Status of Collective
----------------------------------------------------------------
In the class action lawsuit captioned as KIM ANDERSON, on behalf of
herself and others similarly situated, v. RENT-A-DAUGHTER CORP., et
al., Case No. 1:22-cv-00143-BM (N.D. Ohio), the Plaintiff asks the
Court to enter an order pursuant to the Fair Labor Standards Act
(FLSA):
(a) Conditionally certifying this case as a collective action
under the FLSA on behalf of Representative Plaintiff and
others similarly situated;
(b) Directing that notice be sent by United States mail,
email, and text message to the following:
"All current and former non-exempt caregivers employed by
Defendants from January 27, 2019, to the present who
worked 40 or more hours in any workweek during this
period of time;"
(c) Approving the proposed Notice and Consent to Join form;
(d) Directing Defendants to provide within 14 days an
electronic spreadsheet in Microsoft Excel or comma-
delimited format a Roster of all individuals that fit the
definition above that includes their full names, dates of
employment, last known home addresses, personal email
addresses, and phone numbers;
(e) Directing Defendants to provide a Declaration that the
produced Roster fully complies with the Court’s Order;
and
(f) Directing that duplicate copies of the Notice may be sent
in the event new, updated, or corrected mailing
addresses, email addresses, or phone numbers are found
for any potential opt-in plaintiff.
Rent-a-Daughter provides Home Health Care services.
A copy of the Plaintiff's motion to certify class dated March 14,
2022 is available from PacerMonitor.com at https://bit.ly/3NEhJdA
at no extra charge.[CC]
The Plaintiff is represented by:
Robi J. Baishnab, Esq.
NILGES DRAHER LLC
1360 E. 9 th St., Suite 808
Cleveland, OH 44114
Telephone: (216) 230-2955
Facsimile: (330) 754-1430
E-mail: rbaishnab@ohlaborlaw.com
- and -
Hans A. Nilges, Esq.
7034 Braucher Street, N.W., Suite B
North Canton, OH 44720
Telephone: (330) 470-4428
Facsimile: (330) 754-1430
E-mail: hans@ohlaborlaw.com
RIVIAN AUTOMOTIVE: Bernstein Liebhard Reminds of May 6 Deadline
---------------------------------------------------------------
Bernstein Liebhard LLP, a nationally acclaimed investor rights law
firm, reminds investors of the deadline to file a lead plaintiff
motion in a securities class action lawsuit that has been filed on
behalf of investors who purchased or acquired the common stock of
Rivian Automotive, Inc. ("Rivian" or the "Company") between
November 10, 2021 and March 10, 2022, inclusive, including those
investors who acquired Rivian securities pursuant to and/or
traceable to the Company's November 10, 2021 Initial Public
Offering ("IPO" or the "Offering") of 153 million Rivian shares at
$78 per share (the "Class Period"). The lawsuit was filed in the
United States District Court for the Central District of California
and alleges violations of the Securities Exchange Acts of 1933 and
1934.
Rivian, an electric vehicle ("EV") company, unveiled its first
consumer EVs, the R1T electric pickup truck and the R1S electric
SUV, in 2018. According to the Registration Statement filed in
connection with the IPO, the "R1T and R1S introduce our brand to
the world and will serve as our flagship vehicles as we continue to
expand our offerings."
R1T sales began in September 2021 and R1S sales were planned to
begin in December 2021. As of October 31, 2021, Rivian reported
"approximately 55,400 R1T and R1S preorders in the United States
and Canada from customers who paid a cancellable and fully
refundable deposit of $1,000." At the time of its IPO, Rivian
planned to produce approximately 1,200 R1Ts and 25 R1Ss by the end
of 2021. Based on Rivian's production forecast, the Company
expected to fill its 55,400 R1T and R1S backlog by the end of 2023.
Rivian's success depended on customers ultimately completing their
purchases once Rivian's EVs became available. Preorders for the R1T
and R1S had grown to approximately 71,000 by December 15, 2021.
On March 1, 2022, Rivian announced that it was raising the prices
of its R1T pickup and R1S SUV by 17% and 20%, respectively - and
that these new prices would apply to nearly all preorders. As of
March 1, Rivian had only produced and sold roughly 1,000 vehicles.
As a result, Rivian's share price fell almost 10%, closing at
$61.91 on March 1, 2022. Since the IPO, the price of Rivian's stock
has fallen over 45%, closing as low as $42.28 per share on March 7,
2022.
If you wish to serve as lead plaintiff, you must move the Court no
later than May 6, 2022. A lead plaintiff is a representative party
acting on behalf of other class members in directing the
litigation. Your ability to share in any recovery doesn't require
that you serve as lead plaintiff. If you choose to take no action,
you may remain an absent class member.
If you purchased RIVN common stock, and/or would like to discuss
your legal rights and options please visit Rivian Automotive, Inc.
Shareholder Class Action Lawsuit or contact Peter Allocco at (212)
951-2030 or pallocco@bernlieb.com.
Since 1993, Bernstein Liebhard LLP has recovered over $3.5 billion
for its clients. In addition to representing individual investors,
the Firm has been retained by some of the largest public and
private pension funds in the country to monitor their assets and
pursue litigation on their behalf. As a result of its success
litigating hundreds of lawsuits and class actions, the Firm has
been named to The National Law Journal's "Plaintiffs' Hot List"
thirteen times and listed in The Legal 500 for ten consecutive
years.
ATTORNEY ADVERTISING. (c) 2022 Bernstein Liebhard LLP. The law firm
responsible for this advertisement is Bernstein Liebhard LLP, 10
East 40th Street, New York, New York 10016, (212) 779-1414. Prior
results do not guarantee or predict a similar outcome with respect
to any future matter. [GN]
ROBINHOOD MARKETS: Briefing Sched Entered in "Order Flow" Suit
--------------------------------------------------------------
In the class action lawsuit re Robinhood Order Flow Litigation,
Case No. 4:20-cv-09328-YGR (N.D. Cal.), the Hon. Judge entered an
order that the briefing schedule and hearing of the Defendants'
motion to deny class certification is as follows:
1. The Plaintiffs' opposition Aug. 20, 2021
shall be due:
2. The Defendants' reply shall Sept. 24, 2021
be due:
3. The hearing is set for: Oct. 19, 2021
Robinhood is an American financial services company headquartered
in Menlo Park, California, known for pioneering commission-free
trades of stocks, exchange-traded funds and cryptocurrencies via a
mobile app introduced in March 2015.
A copy of the Court's order dated March 15, 2022 is available from
PacerMonitor.com at https://bit.ly/3uPfrzH at no extra charge.[CC]
The Plaintiff is represented by:
The Attorneys for the Defendants Robinhood Markets, Inc.; Robinhood
Financial LLC; and robinhood securities, LLC, are:
C. Brandon Wisoff, Esq.
Russell Taylor, Esq.
FARELLA BRAUN + MARTEL LLP
235 Montgomery Street, 17th Floor
San Francisco, CA 94104
Telephone: (415) 954-4400
Facsimile: (415) 954-4480
E-mail: bwisoff@fbm.com
rtaylor@fbm.com
- and -
Maeve L. O'Connor, Esq.
Elliot Greenfield, Esq.
Brandon Fetzer, Esq.
Debevoise & Plimpton LLP
919 Third Avenue
New York, New York 10022
Telephone: (212) 909-6000
E-mail: mloconnor@debevoise.com
egreenfield@debevoise.com
bfetzer@debevoise.com
ROSARIO LLC: Roman Seeks OT Wages for Restaurant Staff Under FLSA
-----------------------------------------------------------------
RODOLFO ROMAN, individually and on behalf of all others similarly
situated v. ROSARIO, LLC d/b/a ROSARIO'S DELI and ROSARIO DIMARCO,
Case No. 1:22-cv-01715 (March 28, 2022) seeks equitable and legal
relief for the Defendants' violations of the Fair Labor Standards
Act of 1938 and the New York Labor Law.
The FLSA Collective Plaintiffs consist of no less than five
similarly situated employees employed by the Defendants, who work
or worked in excess of 40 hours per week and are victims of the
Defendants' common policies and practices that have violated their
rights under the FLSA by willfully denying them overtime wages.
The Plaintiff worked for the Defendants as a cook and counter
helper from in or around January 2001 until in or around September
9, 2021.
As a cook and counter helper, the Plaintiff's primary job duties
included assisting customers, cooking food, washing dishes,
cleaning, and preparing catering orders.
Rosario's Deli is a deli and convenience store that sells
made-to-order and ready-to-eat food products and other goods.[BN]
The Plaintiff is represented by:
Eliseo Cabrera, Esq.
KATZ MELINGER PLLC
370 Lexington Avenue, Suite 1512
New York, NY 10017
Telephone: (212) 460-0047
Facsimile: (212) 428-6811
E-mail: edcabrera@katzmelinger.com
RUSSELECTRIC INC: Sued Over Mismanagement of Retirement Fund
------------------------------------------------------------
RITA BOWERS, MICHELE GEAR-COLE, FLORENCE LORENZANO, AND REGINALD
TERCY, individually and on behalf of the Russelectric Inc. Employee
Stock Ownership Plan, Plaintiffs v. JOHN H. RUSSELL, SUZANNE E.
RUSSELL, AND LISA J. RUSSELL, individually and as trustees of the
Russelectric Stockholder Trusts and the RUSSELECTRIC STOCK PROCEEDS
TRUSTS AND DENISE D. WYATT, DENNIS J. LONG, ARGENT TRUST COMPANY,
Defendants, Case No. 1:22-cv-10457 (D. Mass., Mar. 25, 2022) is an
action by the Plaintiff on behalf of PlaintiffRusselectric Inc.
Employee Stock Ownership Plan (the "Plan" or the "ESOP"), alleges
violation of the Employee Retirement Income Security Act of 1974.
According to the Plaintiffs in the complaint, the Defendants
orchestrated the unlawful redemption of Russelectric employees'
retirement benefits for less than fair market value in violation of
ERISA.
The Russell family sparred over ownership of its namesake company,
Russelectric Inc. (the "company" or "Russelectric"), near the end
of founder and sole shareholder Raymond Russell's life. In the
fray, the founder conveyed 30% of his Russelectric stock, through
the ESOP, to Russelectric employees as a retirement benefit. Yet
most of the value of that stake was never enjoyed by ESOP
participants. After the founder died, the company, at the direction
and for the benefit of the founder's heirs, reclaimed the ESOP's
shares and terminated the Plan. When the heirs sold the company to
a multinational conglomerate a few years later, the heirs received
more than three times the price paid to redeem the ESOP's shares.
Allegedly, the ESOP redemption terms provided a price adjustment
for participants to receive the higher re-sale price -- but only
with respect to Russelectric shares that had been allocated to
their individual accounts prior to the Plan's termination. The rest
of the ESOP's shares -- around two-thirds of the ESOP's total stake
in the company -- were held in an unallocated account on the
termination date and received no such consideration.
Argent Trust Company is located in Nashville, TN, United States and
is part of the Other Financial Investment Activities Industry.[BN]
The Plaintiffs are represented by:
Jason M. Leviton, Esq.
BLOCK & LEVITON, LLP
260 Franklin Street, Suite 1860
Boston, MA 02110
Telephone: (617) 398-5600
Email: jason@blockesq.com
- and -
Paul J. Lukas, Esq.
Brock J. Specht, Esq.
Brandon T. McDonough, Esq.
Jacob T. Schutz, Esq.
NICHOLS KASTER, PLLP
80 South 8th Street
Minneapolis, MN 55402
Telephone: (612) 256-3200
Facsimile: (612) 338-4878
Email: lukas@nka.com
bspecht@nka.com
bmcdonough@nka.com
jschutz@nka.com
- and -
Marc Edelman, Esq.
MORGAN & MORGAN, PA
201 N. Franklin Street, 7th Floor
Tampa, FL 33602
Telephone: (813) 223-5505
E-mail: medelman@forthepeople.com
- and -
Brandon J. Hill, Esq.
WENZEL, FENTON, CABASSA, P.A.
1110 N. Florida Ave, Suite 300
Tampa, FL 33602
Telephone: (813) 337-7992
E-mail: bhill@wfclaw.com
SAN FRANCISCO, CA: Class Cert Briefing Schedule Proposed in Pierce
------------------------------------------------------------------
In the class action lawsuit captioned as JILLIAN PIERCE, NICOLE
WADE, FANTASY DECUIR, DAMENA PAGE, and VINCENT KEITH BELL on behalf
of themselves and all others similarly situated, v. CITY AND COUNTY
OF SAN FRANCISCO, San Francisco Sheriff's Department Sheriff VICKI
HENNESSY, San Francisco Sheriff's Department Chief Deputy MICHELE
FISHER, and County of San Francisco employees DOES 1-50, Case No.
4:19-cv-07659-JSW (N.D. Cal.), the Parties propose the following
briefing schedule:
-- Motion for Class Certification April 22, 2022
due:
-- Response to Class Certification May 6, 2022
Motion due:
-- Reply to Class Certification May 13, 2022
Motion:
-- Hearing on Class Certification: May 27, 2022
A copy of the Parties' motion dated March 15, 2022 is available
from PacerMonitor.com at https://bit.ly/3DuplKS at no extra
charge.[CC]
The Plaintiffs are represented by:
Andrew Chan Kim, Esq.
SIEGEL, YEE, BRUNNER & MEHTA
475 14th Street, Suite 500
Oakland, CA 94612
Telephone: (510) 839-1200
Facsimile: (510) 444-6698
E-mail: danmsiegel@gmail.com
emilyrose@siegelyee.com
chankim@siegelyee.com
The Defendant is represented by:
Dennis J. Herrera, Esq.
Meredith B. Osborn, Esq.
Raymond Rollan, Esq.
SF PUBLIC UTILITIES COMMISSION
525 Golden Gate Avenue, 13th F
San Francisco, CA 94102
Telephone: (415) 554-1600
E-mail: bfeitelberg@sfwater.org
SAN FRANCISCO: Johnson Labor Code Suit Removed to N.D. California
-----------------------------------------------------------------
The case styled JAMIE JOHNSON, individually and on behalf of all
others similarly situated v. SAN FRANCISCO HEALTH CARE AND REHAB
INC. and DOES 1 through 20, inclusive, Case No. CGC 22-597785, was
removed from the Superior Court of the State of California, County
of San Francisco, to the U.S. District Court for the Northern
District of California on March 28, 2022.
The Clerk of Court for the Northern District of California assigned
Case No. 3:22-cv-01982 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 timely pay final wages, failure to provide
accurate itemized wage statements, and unfair and unlawful
competition.
San Francisco Health Care and Rehab Inc. is a provider of
healthcare services based in San Francisco, California. [BN]
The Defendant is represented by:
Diane Marie O'Malley, Esq.
Warren Hodges, Esq.
Michael E. Turner, Esq.
HANSON BRIDGETT LLP
425 Market Street, 26th Floor
San Francisco, CA 94105
Telephone: (415) 777-3200
Facsimile: (415) 541-9366
E-mail: domalley@hansonbridgett.com
whodges@hansonbridgett.com
mturner@hansonbridgett.com
- and –
Jonathan Van Ee, Esq.
THE LAW OFFICES OF JONATHAN VAN EE
7172 Regional Street No. 342
Dublin, CA 94568
Telephone: (415) 938-7694
E-mail: jonathan@probusinessattorneys.com
SC REALTY: Fails to Pay Proper Wages Under FLSA, AMWA, Pratt Says
-----------------------------------------------------------------
HAMONN PRATT, Individually and on Behalf of All Others Similarly
Situated v. SC REALTY SERVICES, INC., Case No. 4:22-cv-00286-KGB
(E.D. Ark., March 28, 2022) seeks declaratory judgment, monetary
damages, liquidated damages, costs, and a reasonable attorneys'
fee, as a result of Defendant's policy and practice of failing to
pay Plaintiff sufficient wages under the Fair Labor Standards Act
and the Arkansas Minimum Wage Act.
The Defendant's reimbursement formula or lack thereof has allegedly
resulted in an unreasonable underestimation of Janitors' automobile
expenses throughout the recovery period, causing systematic
violations of the minimum wage laws. Because the Defendant paid
Plaintiff and other Janitors a gross hourly wage for the work
performed at the Defendant's clients' facilities at or around the
applicable minimum wage, and because the Plaintiff and other
Janitors incurred unreimbursed automobile expenses and other job
expenses, the Janitors "kicked back" to the Defendant an amount
sufficient to cause minimum wage violations, says the suit.
Because the Defendant failed to reimburse the Plaintiff and other
Janitors for mileage and travel expenses, the Plaintiff and other
Janitors consistently "kicked-back" the cost of mileage to the
Defendant, which led to overtime violations during weeks in which
they worked over 40 hours. As a result of the automobile and other
job-related expenses incurred by the Plaintiff and other similarly
situated Janitors, they were deprived of minimum wages guaranteed
to them by the FLSA and AMWA, the suit added.
SC Realty provides building repair and maintenance services.[BN]
The Plaintiff is represented by:
Josh Sanford, Esq.
SANFORD LAW FIRM, PLLC
Kirkpatrick Plaza
10800 Financial Centre Parkway, Suite 510
Little Rock, AR 72211
Telephone: (501) 221-0088
Facsimile: (888) 787-2040
E-mail: josh@sanfordlawfirm.com
SCRATCH SERVICES: Dicks FCRA Suit Removed to E.D. New York
----------------------------------------------------------
The case styled MORAIS A. DICKS and PROGRESSIVE HOMES & DEVELOPMENT
INC., individually and on behalf of all others similarly situated
v. SCRATCH SERVICES, LLC and CROSS RIVER BANK, Case No.
602306/2022, was removed from the Supreme Court of the State of New
York, County of Nassau to the U.S. District Court for the Eastern
District of New York on March 25, 2022.
The Clerk of Court for the Eastern District of New York assigned
Case No. 2:22-cv-01667-GRB-ARL to the proceeding.
The case arises from the Defendants' alleged violations of the Fair
Credit Reporting Act, the Fair Debt Collection Practices Act, and
New York State's General Business Law as well as claims for breach
of contract and declaratory and injunctive relief in connection
with three purported Paycheck Protection Program (PPP) loans.
Progressive Homes & Development Inc. is a real estate company based
in New York.
Scratch Services, LLC is a loan servicing company headquartered in
California.
Cross River Bank is an American financial services company based in
New Jersey. [BN]
The Defendant is represented by:
Samantha J. Katze, Esq.
MANATT, PHELPS & PHILLIPS, LLP
7 Times Square
New York, NY 10036
Telephone: (212) 790-4500
E-mail: SKatze@manatt.com
SICHUAN GOURMET: Court Denies Bid to Dismiss SG II From Xiao Suit
-----------------------------------------------------------------
In the case, WENLIN XIAO on his own behalf and on behalf of others
similarly situated, Plaintiff v. SICHUAN GOURMET LLC, et al.,
Defendants, Case No. 2:21-cv-00482 (W.D. Pa.), Judge Mark K. Hornak
of the U.S. District Court for the Western District of Pennsylvania
issued an Opinion:
a. granting the Moving Defendants' Motion to Dismiss the First
Amended Complaint under Fed. R. Civ. P. 12(b)(6) with
respect to each of the Moving Defendants other than Sichuan
Gourmet II LLC; and
b. denying the Motion to Dismiss with respect to Sichuan
Gourmet II LLC.
I. Introduction
In the putative collective and class action, the Plaintiff brings
wage and hour law claims against four enterprise Defendants and six
(6) individual Defendants who are associated with those
enterprises. One (1) enterprise Defendant, Sichuan Gourmet LLC, and
one (1) individual Defendant, Weixiang You, have filed an Answer.
The remaining Defendants ("Moving Defendants") have filed a Motion
to Dismiss under Fed. R. Civ. P. 12(b)(6), arguing that the Amended
Complaint fails to state a claim upon which relief may be granted
with respect to the Moving Defendants.
II. Background
The case involves allegations of unfair labor practices in
violation of the Fair Labor Standards Act ("FLSA") and Pennsylvania
Minimum Wage Act of 1968 ("PAMWA"). On April 9, 2021, the Plaintiff
filed suit against 10 Defendants, including fou enterprise
Defendants -- Sichuan Gourmet LLC ("SG I"), Sichuan Gourmet II LLC
("SG II"), Lotus Food Inc, and OC Partners LLC -- and six
individual Defendants -- Weixiang You, Yongjun Zhang, Yongpeng Xia,
Zhong Zhuang, Kuohwa Wang, and Taimei Wang.
On June 23, 2021, all 10 Defendants filed a Motion to Dismiss for
Insufficient Service of Process or Failure to State a Claim. The
Plaintiff sought leave to Amend on July 7, 2021, which the Court
granted on July 12, 2021. The Plaintiff then filed the First
Amended Complaint ("the Amended Complaint") on Aug. 6, 2021.
On Oct. 11, 2021, Defendants SG I and Weixiang You filed an Answer.
That same day, the remaining Defendants -- SG II, Lotus Food Inc,
OC Partners LLC, Yongjun Zhang, Yongpeng Xia, Zhong Zhuang, Kuohwa
Wang, and Taimei Wang ("Moving Defendants") -- filed a Motion to
Dismiss for Failure to State a Claim ("Motion to Dismiss"), along
with a supporting brief and affidavit.
On Oct. 25, 2021, the Plaintiff filed a Brief in Opposition
("Response") and supporting affidavit. The Defendants did not file
a Reply or otherwise indicate an intention to respond to the
Plaintiff's Response. The Court has determined that oral argument
is not necessary to resolve the Motion, and it is now ripe for
disposition.
III. Conclusion
The threshold question in any FLSA dispute is the existence of an
employer-employee relationship, defined according to economic
reality and operationalized through the Enterprise control test.
Judge Hornak concludes that the Plaintiff has not pleaded
sufficient allegations to establish that any of the following
Moving Defendants were his employer as defined by that test:
Yongjun Zhang, Yongpeng Xia, Zhong Zhuang, Kuohwa Wang, Taimei
Wang, Lotus Food Inc, and OC Partners LLC. The Motion to Dismiss is
therefore granted with respect to each of those Defendants.
Judge Hornak further concludes that while the Plaintiff has not
pleaded sufficient allegations to establish that Sichuan Gourmet II
was his employer under a theory of joint employer liability, the
allegations in the Amended Complaint are sufficient to establish a
plausible claim that Sichuan Gourmet I and Sichuan Gourmet II were
in a single employer relationship with Plaintiff. The Motion to
Dismiss is therefore denied with respect to Sichuan Gourmet II.
An appropriate Order will follow.
A full-text copy of the Court's March 18, 2022 Opinion is available
at https://tinyurl.com/2p8w22nb from Leagle.com.
SMILEDIRECTCLUB INC: Class Certification in Securities Suit Upheld
------------------------------------------------------------------
In the case, IN RE SMILEDIRECTCLUB, INC. SECURITIES LITIGATION,
Case No. M2021-00469-COA-R3-CV (Tenn. App.), the Court of Appeals
of Tennessee at Nashville affirmed the Davidson County Chancery
Court's certification of a proposed class.
I. Introduction
In the action alleging violations of a federal securities law due
to purported misrepresentations and omissions in an initial public
stock offering, the Plaintiffs sought to certify a class consisting
of all persons who purchased common stock during the initial public
offering. The trial court certified the class, determining that the
requirements of Tennessee Rule of Civil Procedure 23 had been
satisfied. The Defendants have appealed.
II. Background
On Dec. 20, 2019, the Plaintiffs, Brittany Vang and Matthew
Mancour, filed a complaint in the trial court on behalf of "all
purchasers of SmileDirectClub, Inc. Class A common stock that was
issued pursuant and/or traceable to the Company's Registration
Statement and Prospectus filed with the U.S. Securities and
Exchange Commission in connection with SmileDirectClub's Sept. 12,
2019 initial public stock offering."
The Plaintiffs alleged that SmileDirectClub, Inc. ("SDC") had
violated the disclosure requirements of the Securities Act of 1933,
codified at 15 U.S.C. Section 77a, et seq. ("Securities Act"), such
that SDC and its officers, directors, underwriters, and managing
members (collectively, "Defendants") were strictly liable for the
Plaintiffs' damages. The Plaintiffs specifically alleged violations
of sections 11, 12(a)(2), and 15 of the Securities Act.
The Plaintiffs pled, inter alia, that the initial public offering
documents contained materially untrue and misleading statements
because they "falsely overstated the caliber and scope of dental
services SDC customers receive and omitted critical material
information about the Company's true business model." They asserted
that the offering documents also "understated regulatory and
legislative risks in numerous states around the country," made
"false and misleading statements about customer satisfaction," and
"failed to disclose ballooning costs that had occurred at the time
of the initial public offering."
In their complaint, the Plaintiffs claimed that a class action was
necessary inasmuch as there were numerous potential class members
who were damaged by their purchase of common stock during the
initial public stock offering. They also claimed that these
potential class members satisfied the requirements of maintaining a
class action set forth in Tennessee Rule of Civil Procedure 23.
They sought certification of the proposed class as well as, inter
alia, an award of damages and injunctive relief. The Plaintiffs
further demanded a trial by jury. Although the Defendants filed a
motion seeking to dismiss the complaint for failure to state a
claim upon which relief could be granted or to have the proceedings
stayed pending the outcome in a parallel federal action, the trial
court denied the motion on June 4, 2020.
On July 7, 2020, the Defendants filed a motion seeking permission
to file an interlocutory appeal of the trial court's June 4, 2020
order. Also on July 7, 2020, Defendants SDC, David Katzman, Kyle
Wailes, Steven Katzman, Jordan Katzman, Alexander Fenkell, Susan
Greenspon Rammelt, Richard Schnall, and Camelot Venture Group
(collectively, "SDC Defendants"), filed an answer to the complaint.
Defendants J.P. Morgan Securities LLC; Citigroup Global Markets
Inc.; BofA Securities, Inc.; Jefferies LLC; UBS Securities LLC;
Credit Suisse Securities (USA) LLC; Guggenheim Securities, LLC;
Stifel, Nicolaus & Company, Incorporated; William Blair & Company,
LLC; and Loop Capital Markets LLC (collectively, "Underwriter
Defendants") filed a separate answer on the same day.
On July 22, 2020, the trial court entered an order concerning the
Defendants' motion for an interlocutory appeal, determining that
although an interlocutory appeal was appropriate with respect to
the trial court's denial of a stay, it was not appropriate
regarding the court's denial of the motion to dismiss. The trial
court therefore granted the motion in part and denied it in part.
However, the Court subsequently denied permission for an
interlocutory appeal on Aug. 20, 2020.
On Oct. 2, 2020, the Plaintiffs filed a motion, pursuant to
Tennessee Rule of Civil Procedure 23, seeking certification of the
following class: "All persons who purchased or acquired common
stock pursuant or traceable to the Registration Statement and
Prospectus issued in connection with SDC's Sept. 12, 2019 initial
public offering (the Class).
The Plaintiffs averred that the proposed class satisfied all of the
requirements of Rules 23.01 and 23.02.
The Defendants filed a response opposing class certification,
arguing, inter alia, that: (1) the proposed class representatives
were not adequate, (2) the proposed class representatives' claims
were not typical, (3) individual questions predominated over common
issues, and (4) the proposed class definition was too broad.
Plaintiffs and Defendants filed numerous documents, including
affidavits, in support of their respective positions concerning
class certification.
On April 28, 2021, the trial court entered an order granting the
Plaintiffs' motion for class certification. The Defendants timely
appealed the trial court's order certifying the class. On May 13,
2021, the trial court entered an order staying the proceedings
pending resolution of the appeal concerning the class certification
ruling.
III. Discussion
The Defendants present the following issues for this Court's
review, which it has restated slightly:
1. Whether the trial court erred by determining that the
claims of the proposed class representatives are typical pursuant
to the requirements of Tennessee Rule of Civil Procedure 23.01(3).
2. Whether the trial court erred by determining that the
proposed class representatives can adequately represent the
interests of the class pursuant to the requirements of Tennessee
Rule of Civil Procedure 23.01(4).
3. Whether the trial court erred by determining that issues
common to the class predominate over individual issues pursuant to
the requirements of Tennessee Rule of Civil Procedure 23.02(3).
4. Whether the trial court erred by certifying a class with
no temporal limitation, thereby purportedly including members who
have no actionable injury given the timing of their trades.
A. Typicality
The Defendants argue that the trial court erred by determining that
the claims of the Plaintiffs as proposed class representatives were
typical of the proposed class' claims, pursuant to the requirements
of Tennessee Rule of Civil Procedure 23.01(3), because the
Plaintiffs' claims were subject to unique causation and standing
defenses that might not apply to other class members. Specifically,
the Defendants contend that the Plaintiffs were "in-and-out
traders" who purchased their SDC shares from third-party websites
rather than purchasing directly from the Defendants and who sold
their shares before all of the alleged misrepresentations in the
offering documents were revealed.
Although it recognizes the Defendants' postulate that the timing of
the sales of various class members' stock might affect what the
Defendants are required to prove with regard to the affirmative
defense of negative loss causation, the Court of Appeals agrees
with the trial court's determination that this argument would not
defeat typicality. The Defendants bear the burden of proving the
affirmative defense, and if they choose to try and present varying
factual situations to show other purported reasons for the decline
in stock value based on when class members sold their stock, that
will be their responsibility.
However, the Plaintiffs have alleged that material
misrepresentations or omissions in the offering documents caused
the price of the stock to be artificially inflated, which is
sufficient to state a prima facie claim under the Securities Act,
and they have alleged that these misrepresentations or omissions
affected the entire class. The Court of Appeals conclude that the
possibility of the Defendants' raising individualized negative loss
causation defense arguments does not lead to the supposition that
the proposed class representatives will not properly advance the
interests of the other class members or that those defenses are
likely to become a major focus of the litigation. It therefore
determines the Defendants' causation arguments to be unavailing.
The Defendants also point out that in order to have standing to
bring a claim pursuant to section 12(a)(2), a plaintiff "must have
purchased securities directly from the defendants. They contend
that although other class members may have standing to bring a
claim pursuant to section 12(a)(2), the Plaintiffs have no such
standing because they did not purchase their shares directly from
them. In their appellate brief, the Plaintiffs appear to concede
that they lack standing pursuant to section 12(a)(2). However, they
posit that (1) they can represent class members with section
12(a)(2) claims even if they only have section 11 claims and (2)
the Defendants' argument is best addressed in a dispositive motion
rather than at the class certification stage.
The Court of Appeals determines that the trial court erred by
"applying an incorrect legal standard" when analyzing the standing
sub-issue. Insofar as the proposed class representatives failed to
demonstrate that they had standing to assert a claim based upon
section 12(a)(2) on their own behalf, they were unable to bring a
class action asserting such a claim on behalf of other class
members. Accordingly, the section 12(a)(2) claims must be
dismissed. The Court of Appeals otherwise concludes that the trial
court did not abuse its discretion in determining that the
typicality requirement had been met.
B. Adequacy of Representation
The Defendants argue that the Plaintiffs are inadequate class
representatives because their testimony in discovery demonstrated
that they were unable to "explain basic information" about the
case, contradicted the allegations of the complaint, and had
"abdicated complete control" to their attorneys. According to the
Defendants, Ms. Vang admitted in her deposition that she had never
read the offering documents while Mr. Mancour disavowed the
complaint's theories concerning how the offering documents were
misleading. The Defendants posit that the litigation is lawyer
driven and that the Plaintiffs admitted to having been solicited by
attorneys to serve as class representatives and having no
meaningful involvement in the decision-making process.
The Court of Appeals agrees with the trial court that the
Plaintiffs have demonstrated that they will adequately represent
the interests of the class in the matter. And, inasmuch as the
Defendants have not questioned the class counsel's qualifications,
and the Court of Appeals agrees with the trial court's
determination that the class counsel are "highly qualified" to
conduct the litigation, it finds the Defendants' argument to be
unavailing.
C. Predominance of Common Questions
The Defendants further advance that individual questions concerning
each class member's knowledge will predominate over common issues
in this matter, thus rendering class certification unworkable under
Rule 23.02(3). Following satisfaction of the requirements of
Tennessee Rule of Civil Procedure 23.01, "the proponent of class
certification must establish that the class action is maintainable
under Rule 23.02." Rule 23.02(3) requires, for the class to be
certified, that "questions of law or fact common to the members of
the class predominate over any questions affecting only individual
members, and that a class action is superior to other available
methods for the fair and efficient adjudication of the
controversy.
Based upon its thorough review of the circumstances presented in
the matter in light of applicable case law, the Court of Appeals
agrees with the trial court's determination concerning predominance
and Rule 23.02(3). It reiterates that a prima facie claim pursuant
to section 11 requires allegations that an investor had purchased a
security "issued pursuant to a registration statement" that
contained a "material misstatement or omission." The federal courts
have established that "materiality is judged according to an
objective standard" such that materiality questions are considered
"common to all members of the class."
The Defendants have failed to show that arguments of investor
public "knowledge" cannot be handled on a class-wide basis. Claims
of information in the public domain would be subject to generalized
proof common to the entire class. The Court of Appeals accordingly
agrees with the trial court's conclusion that questions common to
the class would predominate over individual issues, such that the
action is maintainable as a class action pursuant to Rule
23.02(3).
D. Class Definition
Finally, the Defendants contend that the class definition adopted
by the trial court is overbroad in that it contains no time
limitations. The trial court adopted the following class
definition: "All persons who purchased or acquired common stock
pursuant or traceable to the Registration Statement and Prospectus
issued in connection with SmileDirect's Sept. 12, 2019 initial
public offering."
The Defendants posit that in-and-out traders who sold their shares
before Sept. 24, 2019, or acquired them after Nov. 12, 2019, should
be excluded from the class due to the Plaintiffs' allegations that
any misrepresentations and omissions were revealed through
disclosure events occurring between the two dates. As such, the
Defendants claim that investors who sold their shares before or
purchased them after this time period would have incurred no
damages.
The Court of Appeals agrees with the Plaintiffs' assertion that the
Defendants are "prematurely and improperly raising merits issues at
the class certification stage. The Defendants question whether
certain class members will be able to prove that they actually
incurred damages if they sold their SDC shares before or purchased
them after various corrective disclosures were made. The answer to
this question will depend on the proof developed in discovery
regarding those class members' claims. The Court of Appeals
determines that any questions concerning temporal limitations on
the class are better addressed to the trial court following
discovery.
IV. Conclusion
For the foregoing reasons, the Court of Appeals affirmed the trial
court's certification of the proposed class. Based on lack of
standing, however, it dismissed the Plaintiffs' claims under
section 12 of the Securities Act of 1933, codified at 15 U.S.C.
Section 77l. The Court of Appeals remanded the matter to the trial
court for further proceedings consistent with its opinion.
Costs on appeal are assessed to the Defendants, SmileDirectClub,
Inc.; David Katzman; Kyle Wailes; Steven Katzman; Jordan Katzman;
Alexander Fenkell; Susan Greenspon Rammelt; Richard Schnall;
Camelot Venture Group; J.P. Morgan Securities LLC; Citigroup Global
Markets Inc.; BofA Securities, Inc.; Jefferies LLC; UBS Securities
LLC; Credit Suisse Securities (USA) LLC; Guggenheim Securities,
LLC; Stifel, Nicolaus & Company, Incorporated; William Blair &
Company, LLC; and Loop Capital Markets LLC.
A full-text copy of the Court's March 18, 2022 Opinion is available
at https://tinyurl.com/4byraupm from Leagle.com.
Steven A. Riley -- sriley@rwjplc.com; Milton S. McGee, III; and
Elizabeth O. Gonser -- egonser@rwjplc.com -- Nashville, Tennessee,
and Scott D. Musoff, in New York City, for the Appellants,
SmileDirectClub, Inc.; David Katzman; Kyle Wailes; Steven Katzman;
Jordan Katzman; Alexander Fenkell; Susan Greenspon Rammelt; Richard
Schnall; and Camelot Venture Group.
John S. Hicks -- jhicks@bakerdonelson.com -- and Christopher E.
Thorsen -- cthorsen@bakerdonelson.com -- in Nashville, Tennessee,
and Sharon L. Nelles, Andrew J. Finn, and Shane M. Palmer, in New
York City, for the Appellants, J.P. Morgan Securities LLC;
Citigroup Global Markets Inc.; BofA Securities, Inc.; Jefferies
LLC; UBS Securities LLC; Credit Suisse Securities (USA) LLC;
Guggenheim Securities, LLC; Stifel, Nicolaus & Company,
Incorporated; William Blair & Company, LLC; and Loop Capital
Markets LLC.
Jerry E. Martin -- jmartin@rgrdlaw.com -- David W. Garrison --
dgarrison@barrettjohnston.com -- and Seth M. Hyatt --
shyatt@barrettjohnston.com -- in Nashville, Tennessee, for the
Appellees, Brittany Vang and Matthew G. Mancour.
SNAP INC: Arbitrator to Decide Over Minor Suit's Contract Signing
-----------------------------------------------------------------
Scott Holland at cookcountyrecord.com reports that a federal
appeals court has ruled a judge can't void Snapchat's user
agreement simply because the user who signed it was a minor.
The U.S. Seventh Circuit Court of Appeals issued an opinion March
24 addressing a class action lawsuit with a minor lead plaintiff,
identified only as K.F.C.
Seventh Circuit Judge Frank Easterbrook wrote the opinion; Judges
Amy St. Eve and Thomas Kirsch concurred.
According to Easterbrook, Illinois resident K.F.C. was 11 when she
opened an account on social media platforim Snapchat, even though
the software's enrollment terms require users must be at least 13.
After using the service for a few years, K.F.C. sued Snap Inc.,
alleging Snapchat violated the Illinois Biometric Information
Privacy Act by failing to obtain consent to use its facial
recognition technology. The lawsuit also accuses Snap of failing to
follow BIPA's data disclosure and retention guidelines.
Snap argued K.F.C. ratified the user agreement through her
continued use of the software and also said BIPA doesn't apply to
its service.
Although Snap is incorporated in Delaware and has its main office
in California, K.F.C. lives in the Southern District of Illinois,
where U.S. District Judge David Dugan dismissed her complaint in
June 2021. Dugan ruled an arbitrator instead should resolve the
argument of whether the user agreement's arbitration clause applies
to a minor, and whether she should be allowed to lead the BIPA
class action. The outright dismissal allowed K.F.C. to appeal.
"K.F.C. acknowledges that she accepted these terms but denies that
the arbitration clause (or any other part of the agreement) binds
her," Easterbrook wrote. "She concedes that she continued using
Snapchat after turning 13 but maintains that this is irrelevant,
because she was (and still is) under 18."
According to the panel, K.F.C. argued arbitration is a matter of
contract, and a judge has to determine if a contract exists before
mandating a dispute can head to an arbitrator. The panel said that
position is rooted in a 1986 U.S. Supreme Court opinion in AT&T
Technologies v. Communications Workers, but explained the question
on appeal hinges on K.F.C.'s premise a child can't form a
contract.
"State law governs the power to form a contract," Easterbrook
wrote.
He said the parties agree California and Illinois laws are
materially identical on this subject.
"Illinois does not think that agreements between adults and
children are void - that they must be ignored, no matter what.
Illinois treats such agreements as voidable, which means that
children may elect how to proceed once they come of age,"
Easterbrook wrote.
Because Illinois law allows a child to accept an agreement and
claim its benefits, the panel continued, such a child also is bound
by any of the deal's detriments. And since a voidable agreement is
not automatically applied, Illinois law allows age to be a
potential defense against enforcing the agreement. But while the
question of whether a contract exists rests with a judge, an
arbitrator must decide whether the contract is valid.
The panel said it found only one relevant federal appellate
decision, a 2021 U.S. Sixth Circuit Court of Appeals opinion in
I.C. v. StockX, which "is all but identical." That majority said
Michigan law stipulates youth is a defense of contract enforcement,
but not an impediment to forming a contact.
Although on appeal K.F.C. cited her age when she accepted the user
agreement as a reason the agreement is invalid, the panel said she
only presented that argument in passing before Judge Dugan,
therefore forfeiting the right to use it on appeal.
Plaintiffs are represented in the action by attorneys Mark R.
Sigmon, Matthew E. Lee, Erin J. Ruben and Caroline R. Taylor, of
the firm of Milberg Coleman Bryson Phillips Grossman, of Raleigh,
North Carolina; and Gregory F. Coleman, of Knoxville, Tennessee.
Snap is represented by attorneys Elizabeth B. Herrington and James
D. Nelson, of Morgan Lewis & Bockius, of Chicago and Washington,
D.C. [GN]
ST. LOUIS, MO: Jones Suit Seeks to Certify Class & Subclass
-----------------------------------------------------------
In the class action lawsuit captioned as DERRICK JONES, JEROME
JONES, MARRELL WITHERS and DARNELL RUSAN, on behalf of themselves
and all similarly situated individuals, v. CITY OF ST. LOUIS et
al., Case No. 4:21-cv-00600-HEA (E.D. Mo.), the Plaintiffs ask the
Court to enter an order certifying the following class and subclass
who seek prospective injunctive and declaratory relief:
-- CJC Class: a class consisting of all people who are now or
will be detained by Defendants at the City Justice Center
in St. Louis, MO. All, of the more than 500 people in this
class, are subject to two common customs or practices: a)
excessive and indiscriminate use of chemical agents; and b)
punitive deprivation of water.
-- The Medical Subclass: All members of the CJC Class who have
a disability that makes them particularly susceptible to
serious harm from chemical agents.
The Plaintiffs also ask that this Court appoint the following
attorneys as class counsel in this matter: Amy Breihan, Brendan
Roediger, Brittney Watkins, Lauren Bartlett, Maureen Hanlon, Oren
Nimni, Patrick Mobley, and Shubra Ohri.
A copy of the Plaintiffs' motion to certify class dated March 15,
2022 is available from PacerMonitor.com at https://bit.ly/3wVMox0
at no extra charge.[CC]
The Plaintiffs are represented by:
Shubra Ohri, Esq.
Amy E. Breihan, Esq.
W. Patrick Mobley, Esq.
906 Olive Street, Suite 420
Saint Louis, MO 63101
RODERICK & SOLANGE MACARTHUR
JUSTICE CENTER
- and -
Blake A. Strode, Esq.
Jacki Langum, Esq.
John M. Waldron, Esq.
Maureen Hanlon, Esq.
Brittney Watkins, Esq.
Emanuel Powell, Esq.
Nathaniel R. Carroll, Esq.
ARCHCITY DEFENDERS, INC.
440 N. 4th Street, Suite 390
Saint Louis, MO 63102
- and -
Brendan Roediger, Esq.
Lauren Bartlett, Esq.
SAINT LOUIS UNIVERSITY SCHOOL OF LAW
LEGAL CLINICS
100 N. Tucker Blvd.
Saint Louis, MO 63101-1930
- and -
Oren Nimni, Esq.
RIGHTS BEHIND BARS
416 Florida Avenue, NW No. 26152
Washington, D.C. 20001
ST. LOUIS, MO: Jones, et al., Seek Leave to File Instanter
----------------------------------------------------------
In the class action lawsuit captioned as DERRICK JONES et al, v.
CITY OF ST. LOUIS et al., Case No. 4:21-cv-00600-HEA (E.D. Mo.),
the Plaintiffs ask the Court to enter an order granting them leave
to file instanter an oversized Memorandum in Support of their
Motion for Class Certification.
The Plaintiffs say that their motion for leave is made in good
faith and will not prejudice Defendants.
A copy of the rPlaintiff's motion dated March 15, 2022 is available
from PacerMonitor.com at https://bit.ly/3IXoV0G at no extra
charge.[CC]
The Plaintiffs are represented by:
Shubra Ohri, Esq.
Amy E. Breihan, Esq.
W. Patrick Mobley, Esq.
Shubra Ohri, Esq.
RODERICK & SOLANGE MACARTHUR
JUSTICE CENTER
906 Olive Street, Suite 420
Saint Louis, MO 63101
- and -
Maureen Hanlon, Esq.
Blake A. Strode, Esq.
Jacki Langum, Esq.
John M. Waldron, Esq.
Maureen Hanlon, Esq.
Brittney Watkins, Esq.
Emanuel Powell, Esq.
ARCHCITY DEFENDERS, INC.
Nathaniel R. Carroll, Esq.
440 N. 4th Street, Suite 390
Saint Louis, MO 63102
- and -
Brendan Roediger, Esq.
Lauren Bartlett, Esq.
SAINT LOUIS UNIVERSITY SCHOOL OF LAW
LEGAL CLINICS
100 N. Tucker Blvd.
Saint Louis, MO 63101-1930
- and -
Oren Nimni, Esq.
RIGHTS BEHIND BARS
416 Florida Avenue, NW No. 26152
Washington, D.C. 20001
STATE FARM: Faces Class-Action For Undervaluing Wrecked Cars
------------------------------------------------------------
John Clark at mystateline.com reports that State Farm
systematically undervalues cars the company deems as a total wreck,
according to a new report from Crain's Business.
A class-action lawsuit contends that the company's practice ends up
costing the customer from 4% to 11% of the cash value.
The complaint accuses the company of a deceptive, fraudulent, and
unfair scheme.
State Farm is the country's largest auto insurer.
In a statement, State Farm said it was premature to comment on the
lawsuit. [GN]
STATE FARM: Seeks Extension to Respond to Martino Class Cert Bid
----------------------------------------------------------------
In the class action lawsuit captioned as LISA M. MARTINO, on behalf
of herself and on behalf of all others similarly situated, v. STATE
FARM MUTUAL AUTOMOBILE INSURANCE COMPANY, Case No. 4:20-cv-00910
(W.D. Mo.), the Parities ask the Court to enter an order extending
the time for State Farm to respond to Plaintiffs' Motion to Certify
the Class in order to facilitate ongoing settlement discussions.
The Parties jointly request an additional 44 days, up to and
including Friday, April 29, 2022, for State Farm to file its
response to Plaintiffs' Motion to Certify the Class.
The Plaintiff filed her Motion to Certify Class on January 14,
2022. State Farm's response was due on February 14, 2022.
The Court granted an extension for State Farm's response to March
16, 2022 to facilitate the parties' settlement discussions.
The parties have made significant progress toward agreement, but
have encountered an issue for which they have agreed to involve a
mediator. The mediation presently is scheduled for April 6, 2022.
The parties believe that their continuing settlement discussions
and mediation likely would be more productive if the filing of
additional briefing by both parties (i.e., an Opposition and Reply)
is briefly delayed.
A copy of the Parties' motion dated March 14, 2022 is available
from PacerMonitor.com at https://bit.ly/3uzIze0 at no extra
charge.[CC]
The Plaintiff is represented by:
Joseph A. Kronawitter, Esq.
J. Brett Milbourn, Esq.
Taylor P. Foye, Esq.
HORN AYLWARD & BANDY, LLC
2600 Grand, Ste. 1100
Kansas City, MO 64108
Telephone: (816) 421-0700
Facsimile: (816) 421-0899
E-mail: bmilbourn@hab-law.com
jkronawitter@hab-law.com
tfoye@hab-law.com
The Defendant is represented by:
James F. Bennett, Esq.
Robert F. Epperson, Jr., Esq.
DOWD BENNETT LLP
7733 Forsyth Blvd., Suite 1900
St. Louis, MO 63105
Telephone: (314) 889-7300
Facsimile: (314) 863-2111
E-mail: jbennett@dowdbennett.com
repperson@dowdbennett.com
STICKER MULE: Faces Valiente Suit Over Telephonic Sales Calls
-------------------------------------------------------------
HERIBERTO VALIENTE, individually and on behalf of all others
similarly situated v. STICKER MULE, LLC, Case No. 146576224 (Fla.
Cir., Miami-Dade Cty., March 28, 2022) is a class action under the
Florida Telephone Solicitation Act as amended by Senate Bill No.
1120.
The Defendant allegedly engages in telephonic sales calls to
consumers without having secured prior express written consent as
required by the FTSA. The Defendant's telephonic sales calls have
caused Plaintiff and the Class members harm, including violations
of their statutory rights, statutory damages, annoyance, nuisance,
and invasion of their privacy.
The Plaintiff brings this lawsuit as a class action on behalf of
himself individually and on behalf of all other similarly situated
persons as a class action pursuant to Florida Rule of Civil
Procedure 1.220(b)(2) and (b)(3). The "Class" that Plaintiff seeks
to represent is defined as:
"All persons in Florida and/or Florida residents who, (1) were
sent a telephonic sales call regarding the Defendant's goods
and/or services, 6(2) using the same equipment or type of
equipment utilized to call Plaintiff."
The Defendant and its employees or agents are excluded from the
Class.[BN]
The Plaintiff is represented by:
Manuel S. Hiraldo, Esq.
HIRALDO P.A.
401 E. Las Olas Boulevard, Suite 1400
Ft. Lauderdale, FL 33301
Telephone: 954.400.4713
E-mail: mhiraldo@hiraldolaw.com
- and -
Andrew J. Shamis, Esq.
Garrett O. Berg, Esq.
SHAMIS & GENTILE P.A.
14 NE 1st Ave., Suite 705
Miami, FL 33132
Telephone: (305) 479-2299
E-mail: ashamis@shamisgentile.com
gberg@shamisgentile.com
SUEZ WATER: Nicholls MPWL Suit Removed to D. Massachusetts
----------------------------------------------------------
The case styled JEREMIAH NICHOLLS, WALTER GOODROW, WESLEY DINSMORE
and RICHARD RUPPERT, individually and on behalf of all others
similarly situated v. SUEZ WATER ENVIRONMENTAL SERVICES, INC., Case
No. 2279CV00091, was removed from the Massachusetts Superior Court,
Hampden County, to the U.S. District Court for the District of
Massachusetts on March 25, 2022.
The Clerk of Court for the District of Massachusetts assigned Case
No. 3:22-cv-30034 to the proceeding.
The case arises from the Defendant's failure to pay the prevailing
wage rates of its employees pursuant to Massachusetts Prevailing
Wage Law.
Suez Water Environmental Services Inc. is a water environmental
services, with a principal place of business in Wilmington,
Delaware. [BN]
The Defendant is represented by:
Stephen T. Melnick, Esq.
Shea A. Miller, Esq.
LITTLER MENDELSON, P.C.
One International Place, Suite 2700
Boston, MA 02110
Telephone: (617) 378-6000
Facsimile: (617) 737-0052
E-mail: smelnick@littler.com
samiller@littler.com
TARGET CORP: New York Court Tosses Gordon's Amended Class Complaint
-------------------------------------------------------------------
In the case, LOVELYN GORDON, individually and on behalf of all
others similarly situated, Plaintiff v. TARGET CORPORATION,
Defendant, Case No. 20-CV-9589 (KMK) (S.D.N.Y.), Judge Kenneth M.
Karas of the U.S. District Court for the Southern District of New
York granted the Defendant's Motion to Dismiss the Amended
Complaint.
I. Introduction
Plaintiff Gordon brings the putative class action against Target,
alleging that the labeling on the Defendant's "Toddler Next Stage"
toddler drink is deceptive and misleading. The Plaintiff asserts
claims for damages against the Defendant for (1) violations of
Sections 349 and 350 of the New York General Business Law ("GBL"),
N.Y. G.B.L. Sections 349, 350; (2) violation of the Magnuson-Moss
Warranty Act ("MMWA"), 15 U.S.C. Sections 201, et seq.; (3) common
law breach of express warranty; (4) common law breach of the
implied warranty of merchantability; (5) common law negligent
misrepresentation; (6) common law fraud; and (7) unjust enrichment.
The Plaintiff also seeks injunctive relief to correct the alleged
misrepresentations.
Before the Court is the Defendant's Motion to Dismiss the Amended
Complaint.
II. Background
The Defendant is a company which sells products ranging from
groceries to consumer electronics in its approximately 1,900 stores
located in all 50 states. Its private labels, or store brands, are
known for their high quality and are considered equivalent to their
branded counterparts. One such store brand is the Defendant's up &
up(TM) brand, which it uses for its consumer health products.
Among other things, the Defendant manufactures, markets, and sells
milk-based powder products enriched with iron to both infants and
non-infants under its up & up(TM) brand. The Action involves the
Defendant's up & up(TM) branded "Toddler Next Stage" product, a
milk-based powder drink designed for toddlers over the age of one
year.
The Plaintiff alleges that the similarities between the labeling of
the two products gives caregivers of toddlers "the incorrect
impression that the Product is nutritionally adequate for children
over one year of age" and attempts to "ride the coattails of the
carefully regulated Infant Formula to drive sales." She alleges
that the Product's label is made even more misleading because it
contains an infant formula panel on the reverse side of the
container in addition to the nutrition facts panel. The Plaintiff
alleges that the infant formula panel is in a format that
caregivers would know is unique to highly regulated infant
formulas, and is misleading "because it gives caregivers the
impression that the Product, like infant formula, is subject to
heightened and specific FDA regulations."
The Plaintiff alleges that like other Transition Formulas, the
Product is actually contrary to toddlers' nutritional needs,
including because it contains two grams of added sugar per serving.
She alleges that the fact that the Product contains added sugar is
concealed from caregivers buying the Product because it is only
shown via the inclusion of "corn syrup solids" in the fine-printed
ingredients list. Moreover, the Product is both less nutritious and
more expensive than whole cow's milk. As compared to whole cow's
milk, the Product contains 0.31 fewer grams of protein, 0.02 more
grams of fat, 13.86 more grams of carbohydrates, and 11 more
calories per 8 fluid ounces. And, the Product costs approximately
$14.35 per gallon, whereas whole cow's milk costs approximately
$3.85.
The Plaintiff alleges that the Defendant represents that the
Product has been verified by an independent third-party as non-GMO
via the inclusion of a graphic that reads "non-GMO" with the
sub-heading: "ingredients not genetically engineered." She alleges
that the Defendant has "intentionally mimicked the content and
message of the foremost independent verification organization --
the Non-GMO Project," a non-profit organization that is considered
a world leader in non-GMO testing, certification, and consulting.
The Plaintiff alleges that the Defendant deliberately mimicked the
Non-GMO Project's Product Verification Program seal on the
Product's label to mislead consumers into believing that the
Product does not contain milk derived from animals fed GMO crops,
when, in truth, the Product contains dairy ingredients including
milk and lactose that came from cows fed GMO grains. As a result of
this allegedly deceptive seal, consumers allegedly paid a premium
to purchase a non-GMO product that, in fact, contained ingredients
that were produced with GMOs.
The Plaintiff either "is or was a caregiver" for children older
than one year old, and in May 2020, bought the Product on at least
one occasion at the Defendant's store located at 500 East Sanford
Boulevard, Mount Vernon, NY because she expected it would be
nutritionally adequate for the children she cared for. She alleges
that she "paid more for the Product than she would have paid
otherwise" "absent the Defendant's false and misleading
representations and omissions." She alleges that she "intends to,
seeks to, and will purchase the Product again when she can do so
with the assurance that the Product's representations about its
components and ingredients are consistent with its
representations."
The Plaintiff filed her initial Complaint on Nov. 15, 2020. On
April 13, 2021, the Defendant filed a pre-motion letter in
anticipation of filing a motion to dismiss. The Plaintiff filed the
FAC on May 4, 2021. On May 18, 2021, the Defendant again filed a
pre-motion letter in anticipation of filing a motion to dismiss.
Following the Plaintiff's response to the Defendant's pre-motion
letter, the Court held a pre-motion conference on July 13, 2021.
Pursuant to the briefing schedule adopted at this conference, the
Defendant filed the instant Motion and supporting papers on Aug.
13, 2021. The Plaintiff filed her Opposition on Sept. 10, 2021, and
the Defendant filed its Reply on Sept. 24, 2021. On Nov. 3, 2021,
the Plaintiff notified the Court of persuasive authority from the
U.S. District Court for the Eastern District of New York.
III. Analysis
The Defendant argues that (1) the Plaintiff lacks standing to seek
injunctive relief; (2) the Plaintiff's GBL claims fail because no
reasonable consumer would be misled by the Product's label, the
label complies with federal regulations, and the Plaintiff does not
plausibly plead injury; (3) the Plaintiff fails to state a claim
for fraud because she has failed to adequately plead scienter; (4)
the Plaintiff fails to state a claim for negligent
misrepresentation because she has failed to allege the existence of
a special relationship or privity with the Defendant; (5) the
Plaintiff has failed to identify a specific affirmation of fact or
promise that is misleading, and thus cannot state a claim for
breach of express warranty; (6) the Plaintiff does not allege that
the Product was unfit for human consumption, and thus fails to
state a cognizable claim for breach of the implied warranty of
merchantability; (7) the Plaintiff's MMWA claim fails because she
has failed to state a cognizable claim for breach of an express or
implied warranty; and (8) the Plaintiff's unjust enrichment claim
must be dismissed as duplicative.
A. Standing to Seek Injunctive Relief
The Defendant argues that the Plaintiff's allegation that she
"intends to, seeks to, and will purchase the product again when she
can do so with the assurance that the Product's representations
about its components and ingredients are consistent with its
representations," fails to demonstrate that she is likely to suffer
future harm, and thus, that she does not have standing to seek
injunctive relief -- either personally or on behalf of the proposed
class.
Judge Karas agrees. He opines that because the Plaintiff allegedly
is now aware that the Product is not recommended by pediatric
health experts, does not offer superior nutritional value to the
less-expensive whole cow's milk, and is not non-GMO, the Plaintiff
cannot plausibly again be deceived by the Product's label,
regardless of whether it is changed. As such, the Plaintiff cannot
allege any future harm and, thus, lacks standing to seek injunctive
relief.
Because the Plaintiff lacks standing to pursue injunctive relief,
either on her own behalf or on behalf of the proposed class, Judge
Karas dismisses all claims for injunctive relief.
B. New York General Business Law Sections 349 and 350 Claims
Judge Karas dismisses the Plaintiff's claims based on alleged
violations of GBL Sections 349 and 350. He finds that the Plaintiff
has failed to plausibly allege that any portion of the Product's
label is misleading. First, the Plaintiff cannot maintain a claim
for violations of GBL Sections 349 and 350 based on
misrepresentations regarding the Product's nutritional value as
compared to whole cow's milk. Second, to the extent the Plaintiff
alleges that the non-GMO graphic is misleading because the Product
"contains dairy ingredients including milk and lactose, that come
from cows fed GMO grains" -- and not based on any affiliation or
lack thereof with the Non-GMO Project -- this claim is dismissed
for failure to allege that the Plaintiff relied on this alleged
misrepresentation. Lastly, the Plaintiff has failed to allege
injury because she has failed to allege that she relied on any
representations made on the Product's label in purchasing the
Product.
C. Breach of Warranty Claims
The Plaintiff's claim for breach of express warranty is dismissed.
Judge Karas opines that while the Plaintiff is correct that there
is a "line of New York cases suggesting that the notice requirement
does not apply to retail sales," the Defendant correctly points out
"the exception to the notice requirement for retail consumers does
not apply where, as in the case, a plaintiff alleges only economic
injury." And, while the Plaintiff is correct that there is limited
authority for the proposition that a plaintiff's pleadings could
constitute pre-suit notice under certain circumstances, Judge Karas
is persuaded by Judge Failla's reasoning in Lugones v. Pete &
Gerry's Organic, LLC, 440 F.Supp.3d 226 (S.D.N.Y. 2020), in which
she explained that the case from which this limited authority stems
-- Panda Capital Corp. v. Kopo Int'l, Inc., 662 N.Y.S.2d 584 (App.
Div. 1997) -- does not stand "for a broad rule that a filed
complaint qualifies as sufficient and timely notice."
The Plaintiff's claim for breach of the implied warranty of
merchantability is dismissed as well. Judge Karas finds that the
Plaintiff concedes that she "did not allege that the Product was
unfit for human consumption," and thus, the Plaintiff concedes she
has failed to allege a cognizable claim for breach of the implied
warranty of merchantability. While the Plaintiff argues that she
did allege that the Product was "not capable of passing without
objection in the trade," since pediatric health experts advise
against Transitional Formulas like the Product, the Plaintiff has
provided no authority for the notion that a food product must be
recommended by relevant experts to be merchantable. Indeed, the
only case that the Plaintiff cites in support of this argument,
Jackson v. Eddy's LI RV Ctr., Inc., 845 F.Supp.2d 523 (E.D.N.Y.
2012), concerned claims arising from the plaintiff's ownership of a
motor home.
Lastly, because Judge Karas has already found the Plaintiff's
claims for breach of express and implied warranty to be subject to
dismissal, her claim under the MMWA is similarly dismissed.
D. Negligent Misrepresentation Claim
The Parties appear to agree on the standard for stating a
cognizable claim for negligent misrepresentation, but disagree as
to whether the Plaintiff has adequately plead the existence of a
"special relationship" between the Plaintiff and the Defendant.
Jduge Karas dismissed the Plaintiff's claim for negligent
misrepresentation. He agrees with the Defendant that the
allegations are insufficient to create a special duty owed to the
Plaintiff. He also agrees with the Defendant that the one case on
which the Plaintiff relies for the notion that the Defendant and
the Plaintiff had a special relationship, Greene v. Gerber Prods.
Co., 262 F.Supp.3d 38 (E.D.N.Y. 2017), (see Pl.'s Mem. 18),
presented unique circumstances not present in the case. The
Plaintiff has not alleged that Defendant had any such unique
expertise or scientific knowledge apart from her vague and
conclusory allegation that Defendant must have had such expertise
or knowledge "based on the Defendant's outsized role in the market
for this type of product."
E. Fraud Claim
The Defendant argues that the Plaintiff's fraud claim fails because
the Plaintiff has failed to allege scienter. While the Plaintiff
argues in her Opposition that "the FAC exceeds particularity
requirements for fraud," she does not respond to the Defendant's
argument that the Plaintiff has failed to allege scienter. In the
Second Circuit, a plaintiff's failure to respond to contentions
raised in a motion to dismiss constitute[s] an abandonment of those
claims." As such, Judge Karas finds that the Plaintiff has
abandoned her scienter argument, and her fraud claim is subject to
dismissal on this basis.
But even if het did consider the Plaintiff's fraud claim on the
merits, Judge Karas holds that it would still be subject to
dismissal based on the Plaintiff's failure to adequately plead
scienter. Briefly, the Defendant correctly points out that pointing
to a company's general profit motive is insufficient to plead
scienter. The Plaintiff also vaguely alleges that the "Defendant's
fraudulent intent is evinced by its knowledge of the relevant
regulations, as its misleading representations are careful to avoid
glaringly prohibited statements but are still misleading." But this
non-specific and conclusory allegation cannot satisfy the
Plaintiff's burden to state her fraud claim with particularity.
Accordingly, the Plaintiff's fraud claim is dismissed.
F. Unjust Enrichment Claim
While the Plaintiff's observation that "under Rule 8(e)(2) of the
Federal Rules of Civil Procedure, a plaintiff may plead two or more
statements of a claim, even within the same count, regardless of
consistency" is correct, Judge Karas opines that it does nothing to
change the Court's conclusion, particularly because the case on
which the Plaintiff relies, Henry v. Daytop Vill., Inc., 42 F.3d
89, 95 (2d Cir. 1994), concerned claims of race and gender
discrimination, not products liability or unjust enrichment.
Accordingly, the Plaintiff's claim for unjust enrichment is
dismissed.
IV. Conclusion
For the reasons he stated, Judge Karas granted the Defendant's
Motion. The Clerk of Court is respectfully directed to terminate
the pending motion.
Because it is the first adjudication of the Plaintiff's claims on
the merits, dismissal of the Plaintiff's claims is without
prejudice. The one exception is the Plaintiff's claim for
injunctive relief, which is dismissed with prejudice. To the extent
the Plaintiff has a good faith basis for filing a second amended
complaint, she must do so within 30 days of the date of the Opinion
& Order. Failure to properly and timely amend will result in
dismissal of these claims with prejudice.
A full-text copy of the Court's March 18, 2022 Opinion & Order is
available at https://tinyurl.com/278z5m7f from Leagle.com.
Spencer Sheehan, Esq. -- spencer@spencersheehan.com -- Sheehan &
Associates, P.C., in Great Neck, New York, Counsel for the
Plaintiff.
Paul Garrity, Esq. -- pgarrity@sheppardmullin.com -- Sheppard,
Mullin, Richter & Hampton LLP, in New York City, Counsel for the
Defendant.
TELEFONAKTIEBOLAGET LM: CEO, CFO Sued Over Alleged Corruption
-------------------------------------------------------------
fiercewireless.com reports that Ericsson, which has been under
scrutiny since February for potential bribery payments to the ISIS
terror organization, is now facing a U.S. class action lawsuit. On
March 3, Ericsson's CEO Borje Ekholm and CFO Carl Mellander were
named as defendants in the lawsuit.
The class action lawsuit alleges that Ericsson paid bribes to ISIS
in order to gain access to certain transport routes in Iraq. The
U.S. Department of Justice stated on March 1 that Ericsson violated
its 2019 deferred prosecution agreement (DPA) by failing to fully
disclose details of the company's operations in Iraq between 2011
and 2019. The DoJ also deemed Ericsson's internal investigation
regarding its activities in Iraq insufficient.
In 2019, Ericsson paid over $1 billion in penalties for the
company's involvement in multiple cases of bribery and corruption
in multiple foreign countries. The DoJ notified Ericsson of a prior
DPA breach last October 2021.
Cevian Capital, Europe's largest activist investor, is calling for
an overhaul in Ericsson's corporate governance.
"Inferior corporate governance of Ericsson is costing shareholders
$14 billion," Cevian co-founder Christer Gardell told the Financial
Times. Gardell argued that Investor and Industrivarden, Ericsson's
two largest traditional investors, hold a disproportionate amount
of voting power over the other company shareholders.
Ekholm informed Swedish press on February 16 that it had yet to
determine the recipients of expenses dating back to 2018 and that
the company was using "considerable resources" to resolve the
situation. Following Ekholm's statement, Ericsson's shares dropped
by nearly 15%.
The International Consortium of Investigative Journalists(ICIJ)
published a report on February 27 unveiling Ericsson's alleged
dealings with ISIS in Iraq, claiming that Ericsson made "tens of
millions of dollars in suspicious payments" for the past decade to
maintain its business relations in the country.
Ericsson shares are now at risk of becoming "uninvestable,"
according to Citibank analysts, while the DoJ proceeds with its
investigation.
Ericsson has had "significant control failures in the past" with
managing suspicious expense claims and activities, Ekholm said in a
media conference call on March 2. The company reported over 2,000
compliance concerns in the past year, compared to only 145 reports
in 2016.
While the increased number of allegations indicates progress in
reporting unusual activity, Ekholm added that further internal
discussion within Ericsson is necessary to "drive commitment to
compliance." [GN]
TIRAMISU RESTAURANT: Fails to Provide Overtime Wages, Mauricio Says
-------------------------------------------------------------------
JUAN LOPEZ MAURICIO, individually, and on behalf of all others
similarly situated v. TIRAMISU RESTAURANT, LLC, SAID VEDAD and
KAREN VEDAD, Case No. 1:22-cv-02500 (S.D.N.Y., March 28, 2022)
alleges seeks redress against the Defendants for systematic and
class-wide failure to provide overtime wages, spread of hour wages,
and for the failure to provide Plaintiff all others similarly
situated with wage payment statements and hiring wage rate
notifications in violation of the Fair Labor Standards Act and the
New York Labor Law.
The Plaintiff worked for Defendants at Tiramisu as a cook from
February 2019 through December 24, 2021. For the majority of the
Plaintiff's employment, the Plaintiff worked between 12:00 p.m. and
10:30 p.m., Thursday through Tuesday six days per week, without
lunch breaks, for an approximate total of 53.5 hours per week.
Irrespective of the number of hours worked per week, Plaintiff was
paid at a flat weekly salary of $850.00 to $900.00 and at no time
did the Plaintiff receive overtime wages, spread of hour wages, nor
was Plaintiff provided with wage payment statements or an hourly
rate notice at the time of hiring, the lawsuit says. In addition to
working at Tiramisu, the Plaintiff additionally was assigned by the
Defendants to work at Defendants' restaurant known as "Jardino",
located at 1159 3rd Ave, New York, New York 10065. As a cook,
Plaintiff's duties included without limitation food preparation,
cooking and cleaning.
The Defendants are the owners and/or operators of an Italian
cuisine and pizzeria restaurant known as "Tiramisu", located at
1410 3rd Avenue, New York, New York, that has been in operation
since 1989.[BN]
The Plaintiff is represented by:
Matthew Madzelan, Esq.
BELL LAW GROUP, PLLC
116 Jackson Avenue
Syosset, NY 11791
Telephone: (516) 280-3008
E-mail: Matthew.M@Belllg.com
TOTALENERGIES SE: Court Junks Gas Trading Suit
----------------------------------------------
TotalEnergies SE disclosed in its Form 10-K Report for the
quarterly period ended December 31, 2021, filed with the Securities
and Exchange Commission on March 25, 2022, that a class action,
launched to seek damages from TotalEnergies Gas & Power North
America, Inc. (TGPNA), a US subsidiary of TotalEnergies, and
TotalEnergies Gas & Power Ltd. was dismissed by the US District
Court of New York on June 8, 2020 and this judgment was confirmed
on appeal by a ruling issued on December 3, 2021.
The Office of Enforcement of the US Federal Energy Regulatory
Commission (FERC) began in 2015 an investigation in connection with
the natural gas trading activities of TGPNA. The investigation
covered transactions made by TGPNA between June 2009 and June 2012
on the natural gas market. TGPNA received a Notice of Alleged
Violations from FERC on September 21, 2015. On April 28, 2016, FERC
issued an order to show cause to TGPNA and two of its former
employees regarding the same facts. The case was remanded on July
15, 2021 to the FERC Administrative Judge for hearing and
consideration on the merits.
TotalEnergies SE is into crude petroleum and natural gas and is
based in Courbevoie, France.
TRANSWORLD SYSTEMS: Bid for Class Certification Stricken
--------------------------------------------------------
In the class action lawsuit captioned as ESTHER HOFFMAN; SARAH
DOUGLASS; ANTHONY KIM; and IL KIM and DARIA KIM, husband and wife
and the marital community comprised thereof, on behalf of
themselves and on behalf of others similarly situated, v.
TRANSWORLD SYSTEMS INCORPORATED; PATENAUDE AND FELIX, A.P.C.;
MATTHEW CHEUNG, and the marital community comprised of MATTHEW
CHEUNG and JANE DOE CHEUNG; National Collegiate Student Loan Trust
2004-2; National Collegiate Student Loan Trust 2005-2; National
Collegiate Student Loan Trust 2005-3; National Collegiate Student
Loan Trust 2006-1; National Collegiate Student Loan Trust 2006-3;
National Collegiate Student Loan Trust 2007-4, Case No.
2:18-cv-01132-TSZ (W.D. Wash.), the Hon. Judge Thomas S. Silly
entered an order on deadline for plaintiffs' response to motion for
summary judgment and concerning discovery and related issues as
follows:
1. Any motion concerning the scope of any continuation
deposition of TSI's Designated Representative should be
filed by March 17, 2022, and noted for consideration on
April 1, 2022.
2. The filing deadline and noting dates for TSI's Motion for
Summary Judgment and responses thereto, Plaintiffs' Motion
for Class Certification and responses thereto are stricken
until further Order of the Court.
3. Within five days of the Court's decision on any motion
concerning the continuation deposition of TSI's Designated
Representative, the parties shall meet and confer to agree
on a new filing deadline and noting dates for TSI's Motion
for Summary Judgment and responses thereto, and Plaintiffs'
Motion for Class Certification and responses thereto; for
the completion of Jonathan Boyd's deposition and, if
required by the Court's decision, the continuation of TSI's
Designated Representative's deposition. In the event the
parties cannot agree on any such dates, the Plaintiffs and
Defendants shall each submit their proposals for such dates
to the Court within eight days of the Court's decision.
4. All other case deadlines imposed by previous orders shall
remain in full force and effect.
TSI provides accounts receivable management and student loan
servicing solutions.
A copy of the Court's order dated March 14, 2022 is available from
PacerMonitor.com at https://bit.ly/3LrC1op at no extra charge.[CC]
The Plaintiffs are represented by:
Sam Leonard, Esq.
LEONARD LAW, PLLC
3614 California Ave. SW, #151
Seattle, WA 98116
Telephone: (206) 486-1176
E-mail: sam@seattledebtdefense.com
- and -
Guy W. Beckett, Esq.
BERRY & BECKETT, PLLP
1708 Bellevue Avenue
Seattle, WA 98122
Telephone: (206) 441-5444
E-mail: gbeckett@beckettlaw.com
- and -
Christina L. Henry, Esq.
HENRY & DeGRAAFF, P.S.
119 -- 1st Ave. S., Ste. 500
Seattle, WA 98104
Telephone: (206) 330-0595
E-mail: chenry@HDM-legal.com
- and -
Amanda N. Martin, Esq.
NORTHWEST CONSUMER LAW CENTER
936 North 34th Street, Suite 300
Seattle, WA 98103
Telephone: (206) 805-0989
E-mail: Amanda@NWCLC.org
The Attorneys for Patenaude and Felix, A.P.C., and Matthew Cheung:
Marc Rosenberg, Esq.
LEE SMART, P.S., INC.
1800 One Convention Place
701 Pike St.
Seattle, WA 98101-3929
Telephone: (206) 624-7990
E-mail: mr@leesmart.com
The Attorneys for National Collegiate Student Loan Trust
Defendants, are:
J. Matthew Goodin, Esq.
Gregory T. Casamento, Esq.
R. James DeRose, III, Esq.
Andrew Braunstein, Esq.
LOCKE LORD LLP LOCKE LORD LLP
Brookfield Place
200 Vesey St., 20th Floor
New York, NY 10281-2101
E-mail: gcasamento@lockelord.com
rderose@lockelord.com
andrewbraunstein@lockelord.com
jmgoodin@lockelord.com
- and -
Timothy J. Filer, Esq.
FOSTER GARVEY PC
1111 Third Ave., Ste. 3000
Seattle, WA 98101
Telephone: (206) 447-4000
Attorneys for Defendant Transworld Systems Inc., are:
Justin Homes, Esq.
Bryan C. Shartle, Esq.
SESSIONS, ISRAEL & SHARTLE
3850 N. Causeway Blvd., Ste. 200
Metairie, LA 70002-7227
Telephone: (504) 828-3700
E-mail: jhomes@sessions.legal
bshartle@sessions.legal
- and -
James K. Schultz, Esq.
1545 Hotel Circle S., Ste. 150
San Diego, CA 92108
Telephone: (619) 758-1891
E-mail: jschultz@sessions.legal
TRI-W GLOBAL: Powell Suit Seeks OT Pay for Employees Under FLSA
---------------------------------------------------------------
Eric Powell and Marie Pendleton, individually and on behalf of all
others similarly situated v. Tri-W Global, Inc., Case No.
6:22-cv-00112 (E.D. Tex., March 28, 2022) seeks damages for the
Defendant's failure to pay Plaintiff's time and one-half the
regular rate of pay for all hours worked over 40 during each seven
day workweek under the Fair Labor Standards Act and the
Portal-to-Portal Act.
Mr. Powell Powell began working for the Defendant on or about March
1, 2021. Powell is a former employee. Powell stopped working for
Defendant on or about December 15, 2021. Powell earned a day rate
of approximately $350.00 per day in connection with work for
Defendant.
Pendleton began working for the Defendant on or about April 1,
2021. Pendleton is a former employee. Pendleton stopped working for
Defendant on or about December 15, 2021.
The Plaintiffs and the Collective Action Members seek all damages
available under the FLSA, including back wages, liquidated damages,
legal fees, costs, and post-judgment interest.
Tri-W Global is a first class manufacturer of oil and gas equipment
specializing in flowback, well testing, and production
equipment.[BN]
The Plaintiff is represented by:
Ricardo J. Prieto, Esq.
Melinda Arbuckle, Esq.
SHELLIST LAZARZ SLOBIN LLP
11 Greenway Plaza, Suite 1515
Houston, TX 77046
Telephone: (713) 621-2277
Facsimile: (713) 621-0993
E-mail: rprieto@eeoc.net
marbuckle@eeoc.net
TUPELO, MS: Court Tosses Edwards Bid for Reconsideration
--------------------------------------------------------
In the class action lawsuit captioned as VINCENT EDWARDS,
Individually, and on behalf of all others similarly situated, v.
THE CITY OF TUPELO, MISSISSIPPI, et al., Case No.
1:17-cv-00131-DMB-DAS (N.D. Miss.), the Hon. Judge Debra M. Brown
entered an order denying the motion for reconsideration.
Because Edwards' arguments for reconsideration do not alter the
Court's determination that he failed to satisfy the excusable
neglect standard so as to be granted leave to file a renewed motion
for class certification after the deadline, the Court says.
Over four months after the deadline set by the Court for Vincent
Edwards to renew his motion for class certification, Edwards moved
for leave to file such a motion based on his attorney's "medical
restriction."
By order issued January 11, 2022, this Court denied Edwards' motion
for leave after considering the excusable neglect factors and
concluding: The justification for and length of the delay weigh
against a finding of excusable neglect, the risk of prejudice is
neutral, and the movant's good faith weighs in favor of finding
excusable neglect. Accordingly, after weighing the relevant
factors, the Court determines that Edwards has not shown excusable
neglect in support of his motion for leave to file a renewed motion
for class certification.
The Court also noted that Edwards' proposed motion for class
certification violated the Local Rules and that "[this procedural
deficiency is additional reason to deny the motion for leave as the
Court declines to allow the filing of a document which does not
comply with Local Rule requirements."
On January 26, 2022, Edwards filed a motion for reconsideration
pursuant to Rule 54(b) asking the Court to "reconsider its
discretionary ‘good cause' and ‘excusable neglect' findings"
and allow him "a last opportunity to correctly file his documents
in accordance with Local Rules to correct his attorney's
violation."
A copy of the Court's order dated March 15, 2022 is available from
PacerMonitor.com at https://bit.ly/3tW0MTO at no extra charge.[CC]
UHS OF TUCSON: FAA Applies in Adams Class Suit, Ariz. App. Holds
----------------------------------------------------------------
In the case, UHS OF TUCSON, LLC, A DELAWARE LIMITED LIABILITY
COMPANY DBA PALO VERDE BEHAVIORAL CENTER, UNIVERSAL HEALTH SERVICES
INC., A DELAWARE CORPORATION, UHS OF DELAWARE INC., A DELAWARE
CORPORATION, Petitioners v. HON. D. DOUGLAS METCALF, JUDGE OF THE
SUPERIOR COURT OF THE STATE OF ARIZONA, IN AND FOR THE COUNTY OF
PIMA, Respondent, and KIMBERLY ADAMS, ELISA ALTAMIRANO, ERIC
ALVAREZ, MAUREEN BATES, JOSHUA BEALL, LARRY CASWELL II, NATHAN
COHEN, KARYN DALRYMPLE, SOMA HELU, TODD HERRES, MICKIE HEWLIN,
BRIDGET RINEHART, ANTONIO SOLIS, TRENT TILLMAN AND JAMIE VENTURA,
Real Parties in Interest, Case Nos. 2 CA-SA 2022-0001 and 2 CA-SA
2022-0008 (Consolidated) (Ariz. App.), the Court of Appeals of
Arizona, Division Two, accepts special-action jurisdiction of the
Hospital's petition to review of the respondent judge's denial of
their motion to compel arbitration and grants relief.
I. Introduction
In the consolidated special-action proceeding, petitioners UHS of
Tucson LLC (doing business as Palo Verde Behavioral Health Center),
Universal Health Services Inc., and UHS of Delaware Inc.
(collectively, the Hospital) seek review of the respondent judge's
denial of their motion to compel arbitration in the underlying
class-action lawsuit brought by real parties in interest
(collectively, the Employees) for unpaid compensation. The Hospital
contends the respondent erred in concluding that the Federal
Arbitration Act (FAA) did not apply in the case because the parties
had agreed it would apply in arbitration agreements.
In their separate petition for special action, the Employees seek
to preserve "additional reasons" why the respondent's order should
be upheld.
Because it agrees with the Hospital, the Court of Appeals accepts
jurisdiction of the petition for special action and grants relief.
However, the Court of Appeals declines jurisdiction of the
Employees' petition.
II. Background
In April 2020, in response to the Covid-19 pandemic, Palo Verde
adopted a policy under which designated employees would receive
additional compensation for each shift they worked in addition to
their regular schedule during a staffing shortage. In September
2020, the Employees filed a class action against Palo Verde,
alleging it had refused to pay any such compensation. The Employees
filed a first amended complaint in March 2021, adding Universal
Health Services Inc. and UHS of Delaware Inc. as Defendants.
The Hospital filed a motion to compel arbitration, asserting the
Employees had "all signed arbitration agreements requiring that all
claims related to or arising out of their employment would be
resolved through binding arbitration" and their claims here "all
clearly related to" their employment.
The respondent judge heard argument on the motion to compel
arbitration in July 2021. In its August 2021 under-advisement
ruling, the respondent judge denied the motion to compel
arbitration. Relying on Arkansas Diagnostic Center, P.A. v. Tahiri,
257 S.W.3d 884 (Ark. 2007), and Shield Security & Patrol LLC v.
Lionheart Security & Consulting LLC, No. 1 CA-CV 16-0678 (Ariz.
App. Oct. 31, 2017) (mem. decision), the respondent explained, "By
its plain terms, the FAA does not apply because a party to the
contract is engaged in interstate commerce, but rather because the
contract in dispute evidences a transaction involving commerce."
The respondent further reasoned that the Hospital had failed to
establish that the "employment contracts evidence a transaction
involving commerce." To "avoid piecemeal litigation," the
respondent also addressed the other issues raised by the parties,
rejecting the Employees' additional defenses against enforcement of
the arbitration agreements.
The Hospital filed a timely notice of appeal. However, the Court of
Appeals dismissed the appeal for lack of jurisdiction -- "without
prejudice to the Hospital to file a petition for special action" --
because it involved an interlocutory order, citing Adams v. UHS of
Tucson, No. 2 CA-CV 2021-0120 (Ariz. App. Dec. 2, 2021) (order).
The Hospital then filed the petition for special action. After
briefing on the Hospital's petition was complete, the Employees
filed their own petition for special action, seeking to preserve
"additional reasons" that the respondent judge's denial of the
motion to compel arbitration should be upheld. The Court of Appeals
declines jurisdiction of the Employees' petition.
Special-action jurisdiction is appropriate when a party has no
"equally plain, speedy, and adequate remedy by appeal," and when
the issue raised is a pure question of law and matter of first
impression. As the Court of Appeals explained in the prior
attempted appeal, the Hospital has no adequate remedy by appeal
from the denial of its motion to compel arbitration. In addition,
the primary issue presented here is a question of law -- whether
the FAA applies -- that "requires neither factual review nor
interpretation." And there appears to be no published Arizona case
directly on point. The Court of Appeals therefore exercises its
discretion and accepts special-action jurisdiction.
III. Discussion
The issue in the special action is whether the arbitration
agreements are enforceable under the FAA. In part, the FAA
provides: "A written provision in a contract evidencing a
transaction involving commerce to settle by arbitration a
controversy thereafter arising out of such contract or transaction
will be valid, irrevocable, and enforceable, save upon such grounds
as exist at law or in equity for the revocation of any contract.
The FAA preempts state law and governs all agreements involving
interstate commerce, including arbitration agreements in employment
contracts.
The Hospital points out that the arbitration agreements in the case
state, "This agreement is governed by the Federal Arbitration Act,
9 U.S.C. Section 1, et seq., and evidences a transaction involving
commerce." It therefore reasons that "the parties have already
agreed the FAA applies and the agreement involves commerce" and
this "alone" is sufficient to support application of the FAA in the
case.
The respondent judge seemingly rejected this argument in the
under-advisement ruling. In their response to the petition for
review, the Employees similarly assert that the Hospital's failure
to raise below the issue of whether "the arbitration agreements'
incorporation of the FAA is enough" renders it waived before the
Court of Appeals.
The Court of Appeals finds that the plain language of the
arbitration agreements in the case unambiguously provides that they
are governed by the FAA and involve interstate commerce. It must
therefore give effect to this clear intention of the parties.
Accordingly, the FAA applies, and the respondent judge erred as a
matter of law in concluding otherwise.
The respondent judge also concluded the Employees' claims in the
class action are covered by the arbitration agreements and rejected
the Employees' other defenses against enforcement of the
arbitration agreements. Consequently, as the Hospital maintains,
the respondent was required to grant the motion to compel
arbitration. The Court of Appeals therefore reverses the August
2021 under-advisement ruling and remand the case for proceedings
consistent with this decision.
Finally, the Hospital and the Employees have requested their
attorney fees and costs incurred in this special-action proceeding.
The Hospital relies on A.R.S. Section 12-341, 12-341.01, while the
Employees cite A.R.S. Section 12-341, 12-341.01, 12-349, 12-2106.
The Court of Appeals denies the Employees' request because they are
not the prevailing party. In its discretion, the Court of Appeals
also denies the Hospital's request for attorney fees. However, the
Hospital is entitled to its costs upon compliance with Rule 21,
Ariz. R. Civ. App. P.
IV. Disposition
For the foregoing reasons, the Court of Appeals accepts
special-action jurisdiction of the Hospital's petition and grants
relief. It declines jurisdiction of the Employees' petition for
special action.
A full-text copy of the Court's March 18, 2022 Memorandum Decision
is available at https://tinyurl.com/3f7jyffw from Leagle.com.
Littler Mendelson P.C., Phoenix, By Kristy L. Peters --
kpeters@littler.com -- and Lewis Brisbois Bisgaard & Smith LLP,
Phoenix, By Erica K. Rocush -- Erica.Rocush@lewisbrisbois.com --
Counsel for the Petitioners.
Gammage & Burnham PLC, Phoenix, By David A. Selden --
dselden@messner.com -- Julie A. Pace, and Daniel L. Marks, Counsel
for the Real Parties in Interest.
UNITED STATES: HBA Seeks Deadline Extension to File Class Cert Bid
------------------------------------------------------------------
In the class action lawsuit captioned as HAITIAN BRIDGE ALLIANCE et
al., v. JOSEPH R. BIDEN et al., Case No. 1:21-cv-03317-EGS
(D.D.C.), the Plaintiffs pursuant to Federal Rule of Civil
Procedure 6(b)(1), asks a deadline extension to seek class
certification until 90 days after a Local Civil Rule 16.3
scheduling conference is held or, if only Administrative Procedure
Act claims remain following a decision on the Defendants' Motion to
Dismiss, 90 days after the Court's decision on the Defendants'
Motion to Dismiss. Defendants do not oppose this Motion.
On December 20, 2021, the Plaintiffs filed the Complaint in this
action. On January 13, 2022, Summons and Complaint were delivered
to the U.S. Attorney's Office for the District of Columbia.
Pursuant to Local Civil Rule 23.1(b), the Plaintiffs must move for
class certification within 90 days of filing the complaint. Under
Federal Rule of Civil Procedure 6(a)(1), the deadline for
Plaintiffs to move for class certification is thus currently March
21, 2022.
A copy of the Plaintiffs' motion dated March 16, 2022 is available
from PacerMonitor.com at https://bit.ly/3LFmqlg at no extra
charge.[CC]
The Plaintiffs are represented by:
Esther H. Sung, Esq.
Karen C. Tumlin, Esq.
Jane Bentrott, Esq.
Lauren Wilfong, Esq.
JUSTICE ACTION CENTER
P.O. Box 27280
Los Angeles, CA 90027
Telephone: (323) 316-0944
Facsimile: (323) 450-7276
E-mail: karen.tumlin@justiceactioncenter.org
esther.sung@justiceactioncenter.org
jane.bentrott@justiceactioncenter.org
lauren.wilfong@justiceactioncenter.org
- and -
Stephen Manning, Esq.
Tess Hellgren, Esq.
INNOVATION LAW LAB
333 SW Fifth Avenue #200
Portland, OR 97204
Telephone: (503) 922-3042
Facsimile: (503) 882-0281
E-mail: stephen@innovationlawlab.org
tess@innovationlawlab.org
- and -
Nicole Phillips, Esq.
HAITIAN BRIDGE ALLIANCE
4265 Fairmount Avenue, Suite 280
San Diego, CA 92105
Telephone: (949) 603-5751
E-mail: nphillips@haitianbridge.org
UNITED SURGICAL: Texas Court Grants Bid to Dismiss Perkins Suit
---------------------------------------------------------------
Judge Brantley Starr of the U.S. District Court for the Northern
District of Texas grants the Defendants' motion to dismiss the
lawsuit entitled AMANDA PERKINS; HEATHER C HOLST; TERRY J WILLAMS;
TANYA C STANDIFER; and KARLEY MAYHILL, Plaintiffs v. UNITED
SURGICAL PARTNERS INTERNATIONAL INC; THE BOARD OF DIRECTORS OF
UNITED SURGICAL PARTNERS INTERNATIONAL INC; THE RETIREMENT PLAN
ADMINISTRATION COMMITTEE OF UNITED SURGICAL PARTNERS INTERNATIONAL
INC; and JOHN DOES 1-30, Defendants, Civil Action No.
3:21-CV-00973-X (N.D. Tex.).
The Defendants moved to dismiss the lawsuit for failure to state a
claim under Rule 12(b)(6) of the Federal Rules of Civil Procedure
and for lack of standing under Rule 12(b)(1).
I. Background
The lawsuit is a putative class action suit for breach of fiduciary
duty under the Employee Retirement Income Security Act of 1974
(ERISA). The Plaintiffs are five former employees of United
Surgical who previously participated in the now terminated United
Surgical 401(k) Plan (the Plan). The Plan merged into the Tenet
Healthcare Corporation 401(k) Retirement Savings Plan effective
Jan. 1, 2019. All participant account balances were transferred to
the Tenet Plan, and the United Surgical Plan ceased to exist. So,
the Plaintiffs assert claims solely with respect to administration
of the United Surgical Plan between April 15, 2015, and Dec. 31,
2018 (the class period).
United Surgical was the Plan sponsor and named fiduciary during
this period. Acting through its Board of Directors, United Surgical
appointed the Retirement Plan Administration Committee of United
Surgical Partners International, Inc. to, among other things,
ensure that the investments available to the Plan participants were
appropriate, had no more expense than reasonable, and performed
well as compared to their peers.
The Plan at issue is a defined-contribution plan, which "provides
for an individual account for each participant and for benefits
based solely upon the amount contributed to the participant's
account." Unlike a defined-benefit plan, each participant has
discretion to direct his or her plan contributions to one or more
investment options in a lineup chosen by the plan's fiduciaries.
Each participant's account value fluctuates with changes in the
value of the investment chosen by the participant.
The Plaintiffs bring two counts against the Defendants: breach of
the fiduciary duty of prudence against the Committee and failure to
adequately monitor other fiduciaries against the Board of Directors
and United Surgical.
Count one of the complaint alleges that the Committee breached its
fiduciary duty of prudence in three ways: "(1) failing to
objectively and adequately review the Plan's investment portfolio
with due care to ensure that each investment option was prudent in
terms of cost; and (2) maintaining certain funds in the Plan
despite the availability of identical or similar investment options
with lower costs and/or better performance histories; and (3)
failing to control the Plan's administrative and recordkeeping
costs."
Count two of the complaint alleges that the Board of Directors and
United Surgical had a duty to monitor the Committee and ensure the
Committee was adequately performing its fiduciary obligations. The
Plaintiffs allege that the Board and United Surgical breached this
duty by failing to monitor and evaluate the performance of the
Committee; failing to monitor the process by which the Plan's
investments were evaluated and failing to investigate the
availability of identical lower-cost funds; and failing to remove
the Committee as a fiduciary whose performance was inadequate.
The Defendants moved to dismiss the Plaintiffs' complaint in its
entirety for three reasons: (1) the Plaintiffs fail to state a
claim for breach of the duty of prudence and the breach of the duty
to monitor; (2) the Plaintiffs lack Article III standing; and (3)
the Plaintiffs cannot support claims of liability against the Board
of Directors or individual doe Defendants
II. Analysis
A. Standing
The Defendants challenge the Plaintiffs' Article III standing to
seek prospective relief, to challenge funds in which they never
invested, and to challenge revenue-sharing fee agreements. In
response, the Plaintiffs make two arguments. First, they argue that
they have established individual standing by alleging that they
have invested in the "Plan investments which are the subject of
this lawsuit." Second, they argue that because this is a derivative
action under section 1132(a)(2), they have standing to "seek relief
that sweeps beyond their own injury" and can therefore seek
recovery on behalf of the entire plan, even if they did not
personally invest in every one of the funds that caused injury.
Judge Starr finds the Plaintiffs' allegations conclusory. By
failing to allege injury to their own investment accounts or their
investment in of any of the challenged funds, the Plaintiffs have
alleged an injury to the Plan and participants generally, but not
to the individual plaintiffs themselves. The Plaintiffs also make
no allegations that the revenue sharing fees are charged to all
participants, regardless of which funds they invested in.
Therefore, Judge Starr cannot conclude that the Plaintiffs have
properly alleged an injury from revenue sharing.
For these reasons, Judge Starr grants the Defendants' Rule 12(b)(1)
motion as to the Plaintiffs' claim for prospective relief and as to
the Plaintiffs' standing to challenge certain funds and revenue
sharing fees as the basis for an alleged breach of fiduciary duty.
But he believes the Plaintiffs may be able to establish standing by
alleging the requisite facts for each element. Therefore, he
dismisses the Plaintiffs' claim without prejudice. Within 28 days
of the Order, the Plaintiffs may file an amended complaint
addressing the deficiencies outlined.
B. Failure to State a Claim
Judge Starr next turns to the Defendants' Rule 12(b)(6) arguments.
The Defendants argue that the Plaintiffs have failed to state a
claim for the breach of the duty of prudence and the duty to
monitor. The breach of duty to monitor claim is derivative of the
breach of the duty of prudence claim, so Judge Starr addresses the
breach of the duty of prudence claim first.
1. Count One: Duty of Prudence
The Defendants challenge the Plaintiffs' remaining allegations on
the breach of duty of prudence on two grounds: (1) the Plaintiffs'
allegations concerning the cost of the Plan's investment options do
not support an imprudence claim and (2) their allegations that
defendants charged excessive administrative fees are conclusory and
do not support an imprudence claim.
Judge Starr agrees with the Defendants that the Plaintiffs have
failed to plead sufficient factual allegations about the Plan's
offered services and fee structures for the Court to infer more
than a possibility of misconduct. He grants the motion on this
ground. But because the Plaintiffs may be able to cure these
deficiencies with an amended complaint, he grants them 28 days to
do so.
2. Count Two: Duty to Monitor
Finally, the Defendants argue that the Plaintiffs cannot support
claims of liability against the Board of Directors or the
individual doe defendants for a breach of the duty to monitor. They
argue that first, under Texas law the Board is not an entity that
can be sued separate and apart from the corporation it serves, and
second, the individual corporate directors cannot be held liable
under Fifth Circuit precedent.
As to the doe Defendants, Judge Starr agrees with the Defendants.
The Fifth Circuit has "never recognized a theory of ERISA fiduciary
liability" that holds corporate directors personally liable for
failing to monitor fiduciaries appointed by the directors."
Therefore, he grants the motion as to the doe Defendants.
Judge Starr also need not address whether the Board has capacity to
be sued under Texas law because under the same logic in dismissing
the doe Defendants, the Board of Directors should also be
dismissed. In any event, he says, the Plaintiffs have also sued
United Surgical -- a party that has capacity to be sued -- for
breach of the duty to monitor. United Surgical acts through its
Board of Directors, so any separate claim against the Board is
duplicative.
III. Conclusion
Judge Starr granted the Defendants' motion to dismiss. Because the
deficiencies outlined in the Order could possibly be cured by
amendment, the Plaintiffs may amend their complaint within 28 days
of the Order. Leave to amend does not extend to the Plaintiffs'
request for injunctive relief or to their claims against the Board
or the doe Defendants. The Plaintiffs may make no other changes
than the ones the Order addresses.
A full-text copy of the Court's March 18, 2022 Memorandum Opinion &
Order is available at https://tinyurl.com/2zwwzbes from
Leagle.com.
UNIVERSITY OF KENTUCKY: Niblock Bid for Class Status Partly Granted
-------------------------------------------------------------------
In the class action lawsuit captioned as Niblock, et al., v.
University of Kentucky, et al., Case No. 1:19-cv-01042-TSB (S.D.
Ohio), the Hon. Judge Karen Caldwell entered an order:
1. granting in part amended motion for class certification;
2. certifying the following class seeking injunctive and
declaratory relief pursuant to Rules 23(a) and 23(b)(2) of
the Federal Rules of Civil Procedure:
"All present and future female students at the University
of Kentucky (UK) who are harmed by and seek change of UK’s
allocation of athletic participation opportunities for
female students;"
3. appointing Ala Hassan as class representative; and
4. appointing Jill Zwagerman, Lori Bullock, and Barbara Bonar
as class counsel pursuant to Federal Rule of Civil
Procedure 23(g).
Elizabeth Niblock, the sole named Plaintiff in the original motion
for class certification, was a University of Kentucky student
interested in lacrosse and field hockey that graduated in July
2021.
The other Plaintiff named in the amended motion for class
certification, Ala Hassan, is a current UK student that claims to
be interested in joining a varsity lacrosse team if UK started one.
The Plaintiffs assert that UK discriminates against female students
on the basis of sex by providing them fewer and poorer
opportunities in sports than male students in violation of the
Equal Athletic Participation Opportunity requirements of Title IX
of the Education Amendments of 1972.
A copy of the Court's order dated March 14, 2022 is available from
PacerMonitor.com at https://bit.ly/3tSHcYH at no extra charge.[CC]
UPFIELD US INC: Ledezma Sues Over Mislabeled Vegetable Oil Spread
-----------------------------------------------------------------
CASSANDRA LEDEZMA, individually and on behalf of all others
similarly situated, Plaintiff v. UPFIELD US INC., Case No.
1:22-cv-01618 (N.D. Ill., March 28, 2022) alleges that the
defendant markets and sells mislabeled vegetable oil spread and
misrepresented as made "With Olive Oil" under the I Can't Believe
It's Not Butter! ("ICBINB") brand.
According to the Plaintiff in the complaint, by representing the
Product as made "With Olive Oil," with pictures of olive
ingredients, across green label statements and packaging, touting
"Simple Ingredients," and references to nutritional properties
associated with olive oil, through statements, "Good Fats From
Plant-Based Oils," and "Contains Omega-3 ALA*," "Simple
Ingredients," consumers expect it will contain a significant,
non-de minimis amount of olive oil, in relative and absolute
amounts to all oils used.
However, the ingredient list reveals the Product allegedly contains
a de minimis amount of olive oil in relative and absolute amounts
to all oils used. The Plaintiff would not have purchased the
Product if she knew the representations and omissions were false
and misleading or would have paid less for it.
UPFIELD USA CORP. operates manufactures and produces food
ingredients. [BN]
The Plaintiff is represented by:
Spencer Sheehan, Esq.
SHEEHAN & ASSOCIATES, P.C.
60 Cuttermill Rd Ste 412
Great Neck NY 11021
Telephone: (516) 268-7080
Email: spencer@spencersheehan.com
VARIABLE ANNUITY: D.L. Markham ERISA Suit Transferred to S.D. Tex.
------------------------------------------------------------------
The case styled D.L. MARKHAM, DDS, MSD, INC. 401(K) PLAN and D.L.
MARKHAM, DDS, MSD, INC., on behalf of themselves and all others
similarly situated v. THE VARIABLE ANNUITY LIFE INSURANCE COMPANY
(VALIC); VALIC FINANCIAL ADVISORS, INC.; and VALIC RETIREMENT
SERVICES COMPANY, Case No. 2:21-cv-00007, was transferred from the
U.S. District Court for the Eastern District of California to the
U.S. District Court for the Southern District of Texas on March 25,
2022.
The Clerk of Court for the Southern District of Texas assigned Case
No. 4:22-cv-00974 to the proceeding.
The case arises from the Defendants' retention of a surrender fee
of $20,703 from D.L. Markham, DDS, MSD, Inc. 401(K) Plan's account
balances following the transfer of the Plan's assets from the
Defendants' platform to the successor service provider's platform.
The furnishing of services to a plan by VALIC, a party-in-interest
with respect to the plan, constitutes a prohibited transaction
under the Employee Retirement Income Security Act of 1974.
D.L. Markham, DDS, MSD, Inc. is a dental practice located in
Auburn, California.
The Variable Annuity Life Insurance Company (VALIC) is an insurance
corporation headquartered in Houston, Texas.
VALIC Financial Advisors, Inc. is a subsidiary of The Variable
Annuity Life Insurance Company.
VALIC Retirement Services Company is a subsidiary of The Variable
Annuity Life Insurance Company. [BN]
The Plaintiffs are represented by:
Chris Baker, Esq.
Mike Curtis, Esq.
BAKER CURTIS & SCHWARTZ, P.C.
1 California Street, Suite 1250
San Francisco, CA 94111
Telephone: (415) 433-1064
Facsimile: (415) 366-2525
E-mail: cbaker@bakerlp.com
mcurtis@bakerlp.com
- and –
David Crutcher, Esq.
790 Mission Avenue
San Rafael, CA 94901
E-mail: david@crutcherlaw.com
VERTIV HOLDINGS: Gainey McKenna Reminds of May 23 Deadline
----------------------------------------------------------
Gainey McKenna & Egleston announces that a class action lawsuit has
been filed against Vertiv Holdings Co ("Vertiv" or the "Company")
(NYSE: VRT) in the United States District Court for the Southern
District of New York on behalf of investors who purchased Vertiv
stock between April 28, 2021 and February 23, 2022, inclusive (the
"Class Period").
The Complaint alleges that Defendants made false and misleading
statements and failed to disclose that: (i) Vertiv could not
adequately respond to supply chain issues and inflation by
increasing its prices; (ii) as a result of the increasing costs,
Vertiv's earnings would be adversely impacted; and (iii)
consequently, Defendants' positive statements about Vertiv's
business, operations, and prospects were materially misleading
and/or lacked a reasonable basis.
On February 23, 2022, Vertiv reported disappointing financial
results, including $0.06 earnings per share for fourth quarter
2021, missing analyst estimates of $0.28 per share. Vertiv's Chief
Executive Officer attributed the poor results to management
"consistently underestimat[ing] inflation and supply chain
constraints for both timing and degree, which dictated a tepid 2021
pricing response." On this news, the price of Vertiv stock declined
by approximately 37%, damaging investors.
Investors who purchased or otherwise acquired shares of Vertiv
should contact the Firm prior to the May 23, 2022 lead plaintiff
motion deadline. A lead plaintiff is a representative party acting
on behalf of other class members in directing the litigation. If
you wish to discuss your rights or interests regarding this class
action, please contact Thomas J. McKenna, Esq. or Gregory M.
Egleston, Esq. of Gainey McKenna & Egleston at (212) 983-1300, or
via e-mail at tjmckenna@gme-law.com or gegleston@gme-law.com.
Please visit our website at http://www.gme-law.comfor more
information about the firm. [GN]
VERTIV HOLDINGS: Robbins Geller Reminds of May 23 Deadline
----------------------------------------------------------
Robbins Geller Rudman & Dowd LLP announces that purchasers of
Vertiv Holdings Co (NYSE: VRT) securities between April 28, 2021
and February 23, 2022, inclusive (the "Class Period") have until
May 23, 2022 to seek appointment as lead plaintiff in Vinings v.
Vertiv Holdings Co, No. 22-cv-02416 (S.D.N.Y.). The Vertiv class
action lawsuit charges Vertiv as well as certain of its top
executive officers with violations of the Securities Exchange Act
of 1934.
If you suffered significant losses and wish to serve as lead
plaintiff of the Vertiv class action lawsuit, please provide your
information by clicking here. You can also contact attorney J.C.
Sanchez of Robbins Geller by calling 800/449-4900 or via e-mail at
jsanchez@rgrdlaw.com. Lead plaintiff motions for the Vertiv class
action lawsuit must be filed with the court no later than May 23,
2022.
CASE ALLEGATIONS: Vertiv purports to be a "global leader in the
design, manufacturing and servicing of critical digital
infrastructure technology that powers, cools, deploys, secures and
maintains electronics that process, store and transmit data."
The Vertiv class action lawsuit alleges that, throughout the Class
Period, defendants made false and misleading statements and failed
to disclose that: (i) Vertiv could not adequately respond to supply
chain issues and inflation by increasing its prices; (ii) as a
result of the increasing costs, Vertiv's earnings would be
adversely impacted; and (iii) consequently, defendants' positive
statements about Vertiv's business, operations, and prospects were
materially misleading and/or lacked a reasonable basis.
On February 23, 2022, Vertiv reported disappointing financial
results, including $0.06 earnings per share for fourth quarter
2021, missing analyst estimates of $0.28 per share. Vertiv's Chief
Executive Officer attributed the poor results to management
"consistently underestimat[ing] inflation and supply chain
constraints for both timing and degree, which dictated a tepid 2021
pricing response." On this news, the price of Vertiv stock declined
by approximately 37%, damaging investors.
THE LEAD PLAINTIFF PROCESS: The Private Securities Litigation
Reform Act of 1995 permits any investor who purchased Vertiv
securities during the Class Period to seek appointment as lead
plaintiff in the Vertiv class action lawsuit. A lead plaintiff is
generally the movant with the greatest financial interest in the
relief sought by the putative class who is also typical and
adequate of the putative class. A lead plaintiff acts on behalf of
all other class members in directing the class action lawsuit. The
lead plaintiff can select a law firm of its choice to litigate the
class action lawsuit. An investor's ability to share in any
potential future recovery of the class action lawsuit is not
dependent upon serving as lead plaintiff.
ABOUT ROBBINS GELLER RUDMAN & DOWD LLP: Robbins Geller Rudman &
Dowd LLP is one of the world's leading complex class action firms
representing plaintiffs in securities fraud cases. The Firm is
ranked #1 on the 2021 ISS Securities Class Action Services Top 50
Report for recovering nearly $2 billion for investors last year
alone - more than triple the amount recovered by any other
plaintiffs' firm. With 200 lawyers in 9 offices, Robbins Geller's
attorneys have obtained many of the largest securities class action
recoveries in history, including the largest securities class
action recovery ever - $7.2 billion - in In re Enron Corp. Sec.
Litig. Please visit http://www.rgrdlaw.comfor more information.
[GN]
VIACOMCBS INC: Court Resets Case Schedule in DeRosa Class Suit
--------------------------------------------------------------
In the class action lawsuit captioned as Sara DeRosa v. ViacomCBS,
Inc. et al., Case No. 2:20-cv-02965-MCS-GJS (C.D. Cal.), the Hon.
Judge Mark C. Scarci entered an order granting in part and denying
in part the parties' stipulation to continue the class
certification motion briefing and hearing schedule by over four
months.
The Court resets the case schedule as follows:
Event Old Date New Date
Deadline to File Motion May 2, 2022 June 6, 2022
for Class Certification:
Deadline to File an May 25, 2022 June 27, 2022
Opposition to the Motion
for Class Certification:
Deadline to File a Reply: June 17, 2022 July 18, 2022
Hearing Date on Motion June 27, 2022 Aug. 1, 2022
for Class Certification:
No further extensions will be granted absent an extraordinary
showing of good cause supported by a detailed declaration of
counsel stating what class discovery remains outstanding, why
that discovery must be completed before submission of class
certification briefs, and when the parties anticipate that
discovery to be completed.
The Court said, "The parties fail to establish why such a long
extension of time is appropriate. First, the stipulation does not
elucidate why it took nearly half a year from Magistrate Judge
Standish's approval of a stipulation regarding the privacy notice
to generate the protocol for and issue the notice. Second, the
parties do not indicate why they need more than five months to
complete class discovery and prepare a class certification motion
after the claims administrator finalizes the list of non-objectors.
Third, this case is one of the oldest cases on the Court's docket.
The Court already has extended class certification dates by over
three months."
The Court endeavors to bring all cases to trial within 18 months of
filing. This case already is nearly two years old, and the parties'
proposed schedule would require the Court to set the case for trial
about three years after it was filed. The Court doubts that the
parties' proposed schedule would facilitate the "just, speedy, and
inexpensive determination" of the case. At best, the parties have
presented cause for a much shorter continuance, the Court adds.
Paramount Global is an American diversified multinational mass
media and entertainment conglomerate corporation operated and owned
by theater company National Amusements and headquartered at the One
Astor Plaza complex in Midtown Manhattan, New York City.
A copy of the Court's order dated March 11, 2022 is available from
PacerMonitor.com at https://bit.ly/36Acz1m at no extra charge.[CC]
VIVINT INC: Extension to File Class Cert Reply Sought
-----------------------------------------------------
In the class action lawsuit captioned as CRAIG CUNNINGHAM and
ANDREW PERRONG, on behalf of themselves and others similarly
situated, v. VIVINT, INC. and DSI DISTRIBUTING, INC. d.b.a. DSI
SYSTEMS, Case No. 2:19-cv-00568-DBB-CMR (D. Utah), the Plaintiffs
asks the Court to enter an order extending the deadline for filing
a reply in support of Plaintiffs' motion for class certification.
Defendants Vivint, Inc. and DSI Distributing, Inc. filed their
Oppositions to Plaintiffs' Motion on March 7, 2022 and March 14,
2022, respectively.
The Plaintiffs intend to file one consolidated reply brief in
response to Defendants' Oppositions and, due to the Plaintiffs'
counsel's professional and personal schedules and commitments to
other cases, require additional time to prepare the appropriate
consolidated reply brief.
Accordingly, the Plaintiffs request that the deadline for filing
their consolidated reply be extended up to and including April 11,
2022. Defendants Vivint, Inc. and DSI Distributing, Inc. have been
contacted and have agreed to the requested extension.
Vivint provides smart home products and services.
A copy of the Plaintiffs' motion to certify class dated March 16,
2022 is available from PacerMonitor.com at https://bit.ly/3NWmgYW
at no extra charge.[CC]
The Plaintiffs are represented by:
Brian K. Murphy, Esq.
Jonathan P. Misny, Esq.
MURRAY MURPHY MOUL + BASIL LLP
1114 Dublin Road
Columbus, OH 43215
Telephone: (614) 488-0400
Facsimile: (614) 488-0401
E-mail: murphy@mmmb.com
misny@mmmb.com
- and -
Anthony I. Paronich, Esq.
PARONICH LAW, P.C.
350 Lincoln Street, Suite 2400
Hingham, MA 02043
Telephone: (508) 221-1510
E-mail: anthony@paronichlaw.com
- and -
Jared B. Pearson, Esq.
PEARSON LAW FIRM, PLLC
9192 South 300 West, Suite 35
Sandy, UT 84070
Telephone: (801) 888-0991
E-mail: jared@pearsonlawfirm.org
VIVINT INC: Seeks Denial of Cunningham Class Certification Bid
--------------------------------------------------------------
In the class action lawsuit captioned as CRAIG CUNNINGHAM, ROBERT
HOSSFELD and ANDREW PERRONG, on behalf of themselves and others
similarly situated, v. VIVINT, INC. and DSI DISTRIBUTING, INC.
d.b.a. DSI SYSTEMS, Case No. 2:19-cv-00568-DBB-CMR (D. Utah), DSI
asks the Court to enter an order denying the Plaintiffs class
certification.
The Plaintiffs did not timely move for certification. They have not
produced evidence sufficient to define a class, and they do not
properly represent a class. They do not meet the class requirements
set forth in Rule 23(a), the the Court should deny class
certification to Plaintiffs on their claims against DS, the
Defendant contends.
DSI moves the Court to deny class certification to Andrew Perrong
and Craig Cunningham specifically with regard to DSI in this
putative class action lawsuit brought pursuant to the Telephone
Consumer Protection Act (TCPA).
The Plaintiffs have not timely moved for class certification in
accordance with Fed. R. Civ. P. 23 and the 90-day requirement of
DUCivR 23-1, as the original Complaint was filed on August 14, 2019
and class discovery was completed by July 14, 2021.
Vivint is a public smart home company in the United States and
Canada.
DSI distributes satellite and consumer electronic equipment.
A copy of the Defendant's motion dated March 14, 2022 is available
from PacerMonitor.com at https://bit.ly/3ITJbjP at no extra
charge.[CC]
The Defendant is represented by:
Stephen K. Christiansen, Esq.
Kathleen M. Liuzzi, Esq.
CHRISTIANSEN LAW, PLLC
311 South State Street, Ste. 250
Salt Lake City, UT 84111
Telephone: (801) 716-7016
Facsimile: (801) 716-7017
E-mail: steve@skclawfirm.com
kathe@skclawfirm.com
VIVINT SOLAR: Court Grants Dekker's Bid for Class Certification
---------------------------------------------------------------
In the case, GERRIE DEKKER, et al., Plaintiffs v. VIVINT SOLAR,
INC., et al., Defendants, Case No. C 19-07918 WHA (N.D. Cal.),
Judge William Alsup of the U.S. District Court for the Northern
District of California granted the Plaintiff's motion for
certification of a class under Rule 23(b)(2) of the Federal Rules
of Civil Procedure.
I. Background
Defendant Vivint, in its various corporate forms, installs solar
panels on customers' roofs and, at least as advertised, sells those
customers the low cost, clean energy produced over a twenty-year
term pursuant to their "power purchase agreement" (PPA). The
Plaintiff alleges, however, that Vivint's contract contains
unlawful liquidated-damages clauses, provisions which impose harsh
and unlawful penalties onto customers should they seek to dissolve
the contract.
Early on in the action, a March 2020 order compelled all but two
plaintiffs to arbitration. The exceptions were Ms. Dekker, whose
early version of the PPA did not contain an arbitration clause, and
Mr. Bautista, who had not agreed to arbitrate, given Vivint had the
native Spanish speaker, with virtually no English proficiency, sign
an English-form contract after conducting negotiations in Spanish.
Vivint appealed that decision, the Plaintiffs amended their
complaint, and the action continued apace.
Vivint, however, dropped the ball on its JAMS fee deadline, a
material breach of the arbitration agreements under California's
recently enacted Code of Civil Procedure Section 1281.97. So, an
August 14 order vacated the March 24 order as far as it compelled
select plaintiffs to arbitrate and invited those plaintiffs back
into this forum. Vivint appealed this decision as well.
The court of appeals decided Vivint's first appeal on Jan. 25,
2021. The order didn't answer many questions, merely dismissing the
case for lack of jurisdiction. Leave to amend was granted.
In June, Vivint moved for judgment on the pleadings, which was
granted as to the Plaintiffs' Section 17200 claim as to unfairness
based on violations of the Translation Act allegedly endured by Mr.
Bautista. The Plaintiffs were permitted to amend their pleadings,
and an August 11 order granted the motion for leave to amend in
part but denied as futile the Plaintiffs' Section 17200 unfairness
claim as to the Translation Act and further denied leave to include
a restitution claim per the CLRA and Section 17200.
Then, in late October, the other shoe dropped, and the court of
appeals ruled on Vivint's second appeal, finding that whether
Vivint's failure to pay the JAMS filing fees qualifies as a breach
of the arbitration agreement fell within the scope of the PPA's
delegation clause. The order compelling those relevant plaintiffs
to arbitration was hence reinstated. In November, Plaintiff
Bautista dropped out of the case when he settled with Vivint. Ms.
Dekker became the only named Plaintiff.
The Plaintiff now seeks certification of a Rule 23(b)(2) class
defined as follows: "All persons in California who entered into
Version 1 of the Residential Solar Power Purchase Agreement with
Vivint Solar."
The Plaintiff asserts a claim for violations of Civil Code Section
1671 for including liquidated damages clauses in the PPA, as well
as claims under Section 17200 and the Consumer Legal Remedies Act
(CLRA). Both the Section 17200 and CLRA claims are predicated on
Vivint's alleged violation of Section 1671. The Plaintiff generally
seeks an injunction invalidating the PPA's liquidated damages
provisions. She emphasized in both the papers and at the hearing
she is not seeking any classwide monetary remedies.
Shortly before the class certification motion ripened, Vivint moved
for partial summary judgment on three discrete issues related to
the injunctive relief the Plaintiff seeks. Due to those issues
comingling with those of class certification, a decision on that
motion was held in abeyance until the class certification motion
could be heard. That order is filed in tandem with this one. The
Order follows full briefing and oral argument.
II. Analysis
Certification under Rule 23(b)(2) is a two-step process. A
plaintiff must first show that the four prerequisites of Rule 23(a)
are met: (1) the class is so numerous that joinder of all members
is impracticable; (2) there are questions of law or fact common to
the class; (3) the claims or defenses of the representative parties
are typical of the claims or defenses of the class; and (4) the
representative parties will fairly and adequately protect the
interests of the class.
For a class seeking declaratory or injunctive relief under Rule
23(b)(2), a plaintiff must also establish that "the party opposing
the class has acted or refused to act on grounds that apply
generally to the class, so that final injunctive relief or
corresponding declaratory relief is appropriate respecting the
class as a whole."
Rule 23(b)(2) "applies only when a single injunction or declaratory
judgment would provide relief to each member of the class." The
plaintiff bears the burden of demonstrating that these requirements
are met.
Judge Alsup finds that (i) the Plaintiff asserts the proposed class
numbers approximately 825 people which satisfies the numerosity
requirement; (ii) Ms. Dekker qualifies as an adequate class
representative; (iii) common questions with common answers
regarding whether the default provisions constitute unenforceable
liquidated damages provisions will drive the resolution of the
litigation; (iv) Vivint has not adequately shown the litigation of
classwide answers will be derailed by statute of limitations issues
particularly unique to Ms. Dekker; and (v) the requested injunctive
relief will be appropriate with respect to the class as a whole. In
sum, the Plaintiff has satisfied her burden under Rule 23(b)(2).
The Plaintiff objects to several paragraphs of the declaration of
Colton Burr that Vivint filed in support of its opposition. She
filed her objections in contravention of Civil Local Rule 7-3(c),
which reads in relevant part: "Any evidentiary and procedural
objections to the opposition must be contained within the reply
brief or memorandum. Pursuant to Civil L.R. 7-4(b), the reply brief
or memorandum may not exceed 15 pages of text." Regardless, Judge
Alsup holds that his Order relied on none of the portions of the
Burr declaration that the Plaintiff objects to, so the objections
are denied as moot.
III. Conclusion
For the foregoing reasons, Judge Alsup granted the Plaintiff's
motion for class certification under Rule 23(b)(2).
Judge Alsup certified following class: All persons in California
currently in privity of contract with Vivint Solar because they are
subject to Version 1 of the Residential Solar Power Purchase
Agreement.
The class definition will apply for all purposes, including
settlement. Plaintiff Gerrie Dekker is appointed as the class
representative. The Plaintiff's counsel, Matern Law Group, PC, is
appointed as the class counsel. By April 8 at noon, Vivint will
submit a list of people who qualify as class members and the
parties will jointly submit a proposal for class notification with
a plan to distribute notice, including by first-class mail.
A full-text copy of the Court's March 18, 2022 Order is available
at https://tinyurl.com/y8r457y8 from Leagle.com.
VIVINT SOLAR: Summary Judgment Bid in Dekker Suit Granted in Part
-----------------------------------------------------------------
In the case, GERRIE DEKKER, et al., Plaintiffs v. VIVINT SOLAR,
INC., et al., Defendants, Case No. C 19-07918 WHA (N.D. Cal.),
Judge William Alsup of the U.S. District Court for the Northern
District of California granted in part and denied in part the
Defendant's motion for summary judgment.
I. Background
Vivint, in its various corporate forms, installs solar panels on
customers' roofs and, at least as advertised, sells those customers
the low cost, clean energy produced over a twenty-year term
pursuant to their "power purchase agreement" (PPA). The Plaintiff
alleges, however, that Vivint's contract contains unlawful
liquidated-damages clauses, provisions which impose harsh and
unlawful penalties onto customers should they seek to dissolve the
contract.
Early on in the action, a March 2020 order compelled all but two
plaintiffs to arbitration. The exceptions were Ms. Dekker, whose
early version of the PPA did not contain an arbitration clause, and
Mr. Bautista, who had not agreed to arbitrate, given Vivint had the
native Spanish speaker, with virtually no English proficiency, sign
an English-form contract after conducting negotiations in Spanish.
Vivint appealed that decision, the Plaintiffs amended their
complaint, and the action continued apace.
Vivint, however, dropped the ball on its JAMS fee deadline, a
material breach of the arbitration agreements under California's
recently enacted Code of Civil Procedure Section 1281.97. So, an
August 14 order vacated the March 24 order as far as it compelled
select plaintiffs to arbitrate and invited those plaintiffs back
into this forum. Vivint appealed this decision as well.
The court of appeals decided Vivint's first appeal on Jan. 25,
2021. The order didn't answer many questions, merely dismissing the
case for lack of jurisdiction. Leave to amend was granted. In June,
Vivint moved for judgment on the pleadings, which was granted as to
the Plaintiffs' Section 17200 claim as to unfairness based on
violations of the Translation Act allegedly endured by Mr.
Bautista. The Plaintiffs were permitted to amend their pleadings,
and an August 11 order granted the motion for leave to amend in
part but denied as futile the Plaintiffs' Section 17200 unfairness
claim as to the Translation Act and further denied leave to include
a restitution claim per California's Consumer Legal Remedies Act
(CLRA) and Section 17200.
Then, in late October, the other shoe dropped, and the court of
appeals ruled on Vivint's second appeal, finding that whether
Vivint's failure to pay the JAMS filing fees qualifies as a breach
of the arbitration agreement fell within the scope of the PPA's
delegation clause. The order compelling those relevant Plaintiffs
to arbitration was hence reinstated. In November, Plaintiff
Bautista dropped out of the case when he settled with Vivint. Ms.
Dekker became the only named plaintiff.
Now, Vivint seeks to narrow the issues and moves for partial
summary judgment. Due to these summary judgment issues comingling
with those of class certification, a decision on the motion was
held in abeyance until the class certification motion could be
heard. The class certification order is filed in tandem with this
one. The Order follows full briefing and oral argument held
telephonically due to the COVID-19 pandemic.
II. Analysis
Vivint moves for partial summary judgment on the Plaintiff's claim
for injunctive relief premised on three grounds: (1) that an order
enjoining Vivint's allegedly unfair and unlawful sales practices is
now moot; (2) that the Plaintiff is not entitled to injunctive
relief because she has an adequate remedy at law; and (3) that that
an order enjoining Vivint from enforcing the PPA would not qualify
as public injunctive relief.
A. Mootness
Judge Alsup first considers Vivint's contention that the
Plaintiff's prayer for injunctive relief regarding Vivint's unfair
or unlawful sales practices are moot.
Vivint argues the Plaintiff's request for injunctive relief as to
Vivint's sales practices is moot because "as of November 8, it is
no longer engaged in sales practices to newly contacted consumers."
On Oct. 8, 2020, Sunrun, another residential solar company,
acquired Vivint. As of March 21, 2021, Vivint no longer has any
employees, which all became employees of either Sunrun or Sunrun
Installation Services Inc. Vivint clarifies, however, that a "small
number of prospective customers who had already initiated the sales
process, before November 8, may complete that process by signing a
Vivint Solar PPA." Moreover, it also maintains a "Homebuilder Sales
Channel" through which it works with builders to install its
systems on new homes.
Judge Alsup finds that as of Dec. 31, 2021, Vivint no longer
"initiated the execution of any PPAs with home buyers in the
Homebuilder Sales Channel. To the extent that, as of December 31,
there are ongoing interactions with a homebuyer, those agreements
would continue under a Vivint Solar PPA, even after December 31."
So, by Vivint's own declaration, it has not conclusively stopped
its sales practices. Vivint has not specified how many potential
customers still remain in Vivint's sales pipeline. The issue is not
moot.
Vivint has not met its burden so its motion as to mootness is
denied.
B. Inadequate-Remedy-At-Law Doctrine
Next, Vivint seeks partial summary judgment that the Plaintiff is
not entitled to injunctive relief because she has an adequate
remedy at law. It asserts a purely legal question premised on an
August 2021 that reviewed the court of appeals' decision Sonner v.
Premier Nutrition Corp., 971 F.3d 834 (9th Cir. 2020), in the
context of Vivint's motion for judgment on the pleadings. Sonner
held that, despite California's standard, federal courts apply
traditional equitable principles pursuant to federal common law
before awarding restitution. Sonner concluded that the plaintiff
had not properly alleged the inadequacy of legal remedies available
to her and affirmed the district court's denial of leave to add the
restitution claim.
Judge Alsup states that the August 2021 order explained when
denying the request to add a restitution claim: The "Plaintiffs
also fail to differentiate their request for restitution from their
request for damages." The order did not hold that the Plaintiffs
failed to adequately allege the need for all other equitable
relief. It specifically granted judgment on the pleadings only as
to restitution. Damages would not provide an adequate remedy for
the Plaintiff, who remains subject to potential liquidated damages
clauses should she try to disentangle herself from her contract
with Vivint. For this, an injunction would be proper.
Vivint's motion for summary judgment that the Plaintiff's equitable
claim for injunctive relief fail as a matter of law is denied.
C. Public Injunctive Relief
Finally, Vivint argues that the Plaintiff has asserted a claim for
private, rather than public, injunctive relief. In effect, Vivint's
argument would limit the putative class action only to those Vivint
customers whose PPAs did not contain a mandatory arbitration
provision.
In light of two recent opinions from the court of appeals, Judge
Alsup agrees the Plaintiff only seeks private injunctive relief.
Due to recent changes in Vivint's business model, he says, the
Plaintiff's requested relief no longer benefits the general public
as a whole. As explained, as of Dec. 31, 2021, Vivint no longer
engages in any sales activities with anyone beyond those who have
previously initiated negotiations. Consequently, injunctive relief
would only benefit a group of individuals similarly situated to the
Plaintiff. In short, Vivint's cap of sales activity downgrades the
Plaintiff's claim from public to private injunctive relief.
While this may not moot the Plaintiff's requested injunctive
relief, it does limit the number of consumers that would benefit
from a favorable ruling on the issue. In short, Vivint's motion for
summary judgment that the Defendant seeks private injunctive relief
is granted.
III. Conclusion
For these reasons, Judge Alsup granted in part and denied in part
the Defendant's motion for summary judgment. The Plaintiff seeks
only private injunctive relief. The Plaintiff's request for
injunctive relief regarding Vivint's unfair or unlawful sales
practices are not moot, and the Plaintiff's remaining claims for
equitable relief may proceed because she does not have an adequate
remedy at law.
A full-text copy of the Court's March 18, 2022 Order is available
at https://tinyurl.com/3d7btzur from Leagle.com.
VOLKSWAGEN GROUP: Faces Adamson Suit Over Antitrust Violation
-------------------------------------------------------------
PORTIA ADAMSON, individually and on behalf of all others similarly
situated, Plaintiff v. VOLKSWAGEN GROUP OF AMERICA, INC. d/b/a AUDI
OF AMERICA, INC.; VOLKSWAGEN AG; and AUDI COLORADO SPRINGS,
Defendants, Case No. 1:22-cv-00740 (D. Colo., March 25, 2022)
alleges violation of the Sherman Antitrust Act.
The Plaintiff alleges in the complaint that the Defendants, in
violation of the Sherman Antitrust Act, have acted in concert to
restrict the entry of off-lease Audi automobiles into the free,
open used car market by refusing to provide payoff figures to
Lessees of those automobiles and by also refusing to accept
third-party funds on behalf of a Lessee once a payoff figure is
obtained.
The Defendants' concerted action restricts used Audis' entry into
the open, free market, unreasonably restrains trade, affecting both
interstate and foreign commerce, added the suit.
VOLKSWAGEN GROUP OF AMERICA, INC. markets and distributes
automobiles and auto parts. The Company, through its subsidiary,
rents, leases, and finances cars and vans. Volkswagen Group of
America serves customers in the United States. [BN]
The Plaintiff is represented by:
Joseph A. O'Keefe, Esq.
PSOK VENTURE LLC
31 N. Tejon, Ste. 400
Colorado Springs, CO 80903
Telephone: (719) 630-1556
Email: joe@psokventurellc.com
VOYAGER 888: King, et al., File Bid for for Class Certification
---------------------------------------------------------------
In the class action lawsuit captioned as DORA KING and SYDNEY
JACOBS and MOMO JOHNSON and UNIQUE BUTLER and JADA MORALES On
Behalf of Themselves and All Other Similarly Situated Individuals,
v. VOYAGER 888, LLC D/B/A ASSETS GENTLEMEN'S CLUB, ET AL., Case No.
1:21-cv-00991-RMM (D.D.C.), the Plaintiffs ask the Court to enter
an order:
1. Certifying the proposed Class(es) pursuant to Federal
Rule of Civil Procedure 23(a) and (b)(3);
2. Appointing Named Plaintiffs as the Class Representative
for each respective Class pursuant to Federal Rule of
Civil Procedure 23;
3. Appointing Named Plaintiffs’ undersigned counsel as Class
Counsel for each Class pursuant to Federal Rule of Civil
Procedure 23(g); and
4. Providing for such other and further relief as the Court
deems just and proper.
A copy of the Plaintiffs' motion to certify class dated March 15,
2022 is available from PacerMonitor.com at https://bit.ly/3uDDgdy
at no extra charge.[CC]
The Plaintiffs are represented by:
Gregg C. Greenberg, Esq.
ZIPIN, AMSTER & GREENBERG, LLC
8757 Georgia Avenue, Suite 400
Silver Spring, MD 20910
Telephone: (301) 587-9373
E-mail: GGreenberg@ZAGFirm.com
WAL-MART ASSOCIATES: Seeks Extension to Oppose Class Cert Bid
-------------------------------------------------------------
In the class action lawsuit captioned as CHRISTOPHER NELSON, on
behalf of himself and all others similarly situated, v. WAL-MART
ASSOCIATES, INC. and DOES 1 through 50, inclusive, Case No.
3:21-cv-00066-MMD-CLB (D. Nev.), the Parties ask the Court to enter
an order extending the time for the Defendant to file its
Opposition to Plaintiff's Motion for Conditional and Collective
Class Action Certification and for the related Reply deadline:
-- New deadline for filing the July 28, 2022
Motion for Fed. R. Civ. P.
Rule 23 Class Certification
would be:
Response would be due: Nov. 9, 2022
Reply would be due: Jan. 8, 2023
The parties say that this is their third request for an extension
of these deadlines. The first request was made on November 19, 2021
and granted on December 2, 2021. The second request was made on
January 21, 2022 and granted on January 25, 2022.
A copy of the Parties' motion dated March 14, 2022 is available
from PacerMonitor.com at https://bit.ly/36YdOqX at no extra
charge.[CC]
The Plaintiff is represented by:
Joshua D. Buck, Esq.
Leah L. Jones, Esq.
Joshua R. Hendrickson, Esq.
THIERMAN BUCK LLP
7287 Lakeside Drive
Reno, NV 89511
The Defendant is represented by:
Anthony L. Martin, Esq.
Dana B. Salmonson, Esq.
OGLETREE, DEAKINS, NASH, SMOAK & STEWART, P.C.
10801 W. Charleston Blvd., Ste. 500
Las Vegas, NV 89135
Telephone: (702) 369-6800
Facsimile: (702) 369-6888
E-mail: anthony.martin@ogletreedeakins.com
dana.salmonson@ogletreedeakins.com
WELCOME SKATEBOARDS: CMP & Scheduling Order Entered in Sanchez Suit
-------------------------------------------------------------------
In the class action lawsuit captioned as CRISTIAN SANCHEZ v.
WELCOME SKATEBOARDS INC., Case No. 1:21-cv-02598-KPF (S.D.N.Y.),
the Hon. Judge Katherine Polk Failla entered a civil case
management plan and scheduling order as follows:
-- All fact discovery shall be completed July 5, 2022
no later than:
-- All expert discovery, including Aug. 15, 2022
reports, production of underlying
documents, and depositions, shall
be completed no later than:
-- Depositions of fact witnesses June 3, 2022
shall be completed by:
A copy of the Court's order dated March 14, 2022 is available from
PacerMonitor.com at https://bit.ly/3uKzj6G at no extra charge.[CC]
WOODS GOODS: CMP & Scheduling Order Entered in Cruz Suit
--------------------------------------------------------
In the class action lawsuit captioned as SHAEL CRUZ, Individually,
and On Behalf of All Others Similarly Situated, v. WOODS GOODS
COMPANY LLC, Case No. 1:21-cv-10047-AT (S.D.N.Y.), the Hon. Judge
Analisa Torres entered a civil case management plan and scheduling
order as follows:
-- All fact discovery shall be July 8, 2022
completed no later than:
-- Initial requests for production April 11, 2022
of documents to be served by:
-- Interrogatories to be served by: April 11, 2022
-- Depositions to be completed by: July 8, 2022
-- All expert discovery shall be Aug. 22, 2022
completed no later than:
-- The next Case Management July 26, 2022
Conference is scheduled for:
A copy of the Court's order dated March 14, 2022 is available from
PacerMonitor.com at https://bit.ly/3NABgv7 at no extra charge.[CC]
ZARBEE'S INC: Faces Class Action Over Deceptive Gripe Water
-----------------------------------------------------------
John O'Brien at Legal Newsline reports that a new class action
lawsuit says parents who give their children Gripe Water in order
to help with colic might as well be giving them regular water.
None of the ingredients in Zarbee's Gripe Water have been shown to
help colic in newborns, says a March 14 class action filed in San
Francisco federal court by lawyers at Bursor & Fisher. At issue is
the claim Gripe Water "helps ease occasional gas & stomach
discomfort" associated with colic and hiccups.
"However, Defendant's product does not provide effective relief for
any symptoms," the suit says. "This is not surprising, as the
product's main ingredients are water and organic agave syrup.
"The product is nothing more than sweetened, flavored water with
trace amounts of the product's touted ingredients."
The lawsuit cites a study in the Journal of Clinical and Diagnostic
Research that found Gripe Water ineffective for treating colic. The
suit makes claims under the California Consumer Legal Remedies Act,
the Unfair Competition Law and the False Advertising Law. [GN]
[*] Judge Rejects Class Counsel's Payout in Lithium Battery Suit
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Alison Frankel at Reuters reports that in the most comprehensive
analysis of a proposed payout to a class action objector since 2018
amendments to the Federal Rules of Civil Procedure, U.S. District
Judge Yvonne Gonzalez Rogers of Oakland, California, on rejected a
$25,000 settlement between class counsel and a pro se objector
whose appeal was delaying a $45 million distribution to class
members in a long-running antitrust case.
The $25,000 would have been paid directly to objector Christopher
Andrews by class counsel from Cotchett, Pitre & McCarthy; Hagens
Berman Sobol Shapiro; and Lieff Cabraser Heimann & Bernstein. The
plaintiffs' firms had argued that the payout would speed up
recovery for class members in the case -- which alleged a
price-fixing cartel in the lithium ion battery market -- without
costing the class itself any money.
Class counsel also said the payment would compensate Andrews for
his efforts as an objector, which, they said, contributed to the
development of an allocation formula that directed most of the
class recovery to residents of states that allow claims by end-use
consumers.
Plaintiffs' lawyers said they had reluctantly decided the payout
served the interests of the class. "While it might be wished
otherwise," wrote Adam Zapala of Cotchett in a March 7 filing, "de
minimis settlements like this one are at times the best alternative
in a system that can still be exploited by objectors threatening
the interests of the class."
The judge gave careful consideration to that argument, starting
with the observation that the amended rules do not flat-out
prohibit deals like the proposed payout to Andrews. As you know,
the 2018 amendment addressed so-called "objector blackmail," in
which class action objectors motivated by self-interest filed
frivolous appeals solely to obtain side payments from class
counsel. The new rule, as Rogers explained, requires trial judges
to sign off when an objector drops an appeal in exchange for a
payment from class counsel. For that reason alone, the judge said,
the proposed Andrews settlement "is not the prototypical private
payment that rightfully elicits court scrutiny."
The judge acknowledged that class counsel worked with a mediator
from the 9th U.S. Circuit Court of Appeals to reach the proposed
settlement, which, she said, does not affect the class recovery, at
least on its face. And though the Rules Advisory Committee warned
judges not to approve objector settlements simply in order to speed
payouts to class members, Rogers said, the lithium battery class
would also benefit marginally from eliminating the tiny risk that
Andrews would prevail in his appeal.
But other factors, Rogers said, outweighed those rationales. The
proposed $25,000 payment to Andrews was more much than the $10,000
incentive payments Rogers had approved for name plaintiffs, the
judge said, and Andrews failed to document his claim to have spent
600 hours on the case. Andrews' appeal, she said, is pretty much
doomed, considering that the 9th Circuit has already rejected
identical arguments in a different tranche of the lithium ion
battery case.
Finally, Rogers said, approval of the Andrews settlement would set
precedent that might encourage objectors to file doomed appeals in
the hopes of obtaining a payout to drop those cases - exactly the
scenario that the 2018 amendment sought to discourage.
"The court is sympathetic to class counsel's efforts to reach quick
and judicious resolution on appeal," the judge wrote. "While an
appeal would undeniably cause some delay and increase costs to
defend against an appeal, the record also suggests that the appeal
lacks merit."
Rogers did not rule out approval of a smaller settlement between
class counsel and Andrews. I emailed Zapala of Cotchett, Elizabeth
Cabraser of Lieff Cabraser and Steve Berman of Hagens Berman but
didn't hear back.
Andrews told me he was gratified that Rogers did not disregard his
contributions to the litigation. "I don't have any objection to
what she said," he told me. "I understand her thought process."
Andrews said he has not heard from class counsel about a revised
settlement proposal. Unless he reaches a new deal with them, he
said, he will refile an appeal at the 9th Circuit.
I pointed out that Rogers said his appellate arguments were nearly
certain to fail. Andrews said he has written a new appellate brief,
focusing on Rule 23's requirement that common issues predominate
over individual questions. He said he was previously reluctant to
argue a position that could overturn the $44 million settlement.
Rogers' opinion, as I mentioned, is the first to provide thorough
analysis of a proposed objector settlement under the amended rules.
(There have been only a handful of previous rulings since the 2018
amendment, and those, Rogers said, show that "little case law has
developed in reported forms.") In addition to setting out factors
to consider in evaluating a proposed deal, the decision broke new
ground on who can protest a proposed settlement.
I told you last month that Ted Frank's Hamilton Lincoln Law
Institute filed an objection to the Andrews settlement, as did
another pro se objector, Shiyang Huang. Class counsel argued that
neither had constitutional standing to object because class members
could not allege any injury to them from a settlement to be paid
entirely by class counsel. Rogers agreed, in a footnote that also
concluded Huang and Frank's client were not entitled to protest the
Andrews settlement under the class action rule requiring trial
court approval of payments to objectors.
In an email, Frank said Rogers had misread 7th Circuit precedent in
2020's Pearson v. Target Corp, which held that class members can
move for a trial court to order the disgorgement of side payments
by class counsel to objectors who agree to drop appeals.
Overall, Frank said, Rogers reached the "right result for the wrong
reason [and] seems to suggest a smaller extortion without benefit
to class would be kosher." [GN]
*********
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