/raid1/www/Hosts/bankrupt/CAR_Public/220412.mbx
C L A S S A C T I O N R E P O R T E R
Tuesday, April 12, 2022, Vol. 24, No. 67
Headlines
1847 GOEDEKER INC: Faces Boden Securities Suit in DE Court
3M COMPANY: Ohio Court Certifies PFAS Class Action Lawsuit
ADVENT TECHNOLOGIES: Notice of Dismissal Filed in Frey Suit
AFRICAN METHODIST: AARP Foundation Joins ERISA Class Action
AGWM UNITED: Faces Class Action Over Alleged Immigration Scam
AMAZON.COM INC: Tosses Warehouse Workers' Age Discrimination Suit
AMPLE FOODS: Mejia Files ADA Suit in S.D. New York
APPLE INC: Dutch Consumer Protection Group Launches Class Action
APPLE INC: Settles iCloud Subscription Class Action for $14.8MM
ASTRA SPACE: Faces Artery Securities Suit in New York
ASTRA SPACE: Faces Meyer Securities Suit in DE Court
ASTRA SPACE: Faces Riley Securities Suit in E.D. N.Y.
BAYER AG: Prenatal Vitamins Contain Toxic Substances, Suit Says
BOBBI BROWN: Lawal Files ADA Suit in S.D. New York
BROOKSIDE, AL: Coleman Files Suit in N.D. Alabama
C3.AI INC: Hagens Berman Reminds Investors of May 3 Deadline
CABALETTA BIO: Vincent Wong Law Reminds of April 29 Deadline
CADETS CANADA: Faces Class Action Lawsuit Over Sexual Abuse
CANADA: Legal Support Sessions Part of Day School Settlement
CBL & ASSOCIATES: Faces Consolidated Securities Suit
CBL & ASSOCIATES: Hebig Securities Suit Voluntarily Dismissed
CBL & ASSOCIATES: Kurup Securities Suit Voluntarily Dismissed
CBL & ASSOCIATES: Securities Suit in TN Court Ongoing
CBL & ASSOCIATES: Shebitz Securities Suit Voluntarily Dismissed
CINCINNATI BELL: Kemen Files TCPA Suit in S.D. Ohio
CINEFLIX MEDIA: Settles Class Suit Over Unpaid OT for $2.5 Million
COMMUNITY HEALTH: Harvey Seeks to Recover Unpaid Wages, Damages
CTRL HOLDINGS: Mejia Files ADA Suit in S.D. New York
CURALEAF HOLDINGS: Sued in Illinois for Allegedly Confiscating Tips
DAILY CONCEPTS: Mejia Files ADA Suit in S.D. New York
DEBBIE DOES: Denson Suit Seeks Overtime Pay Under FLSA
DELL TECHNOLOGIES: Trial in Dell Class V Litigation to Begin Dec. 5
DELL TECHNOLOGIES: Trial in Stockholders Litigation on July 6
DFA OF CALIFORNIA: Soto Files Suit in Cal. Super. Ct.
DIGITAL RECOGNITION: Court Grants in Part Bid to Dismiss Mata Suit
DOS TOROS: Faces Consumer Class Action Over Deceptive Claims
DOTTED ZEBRA: Mejia Files ADA Suit in S.D. New York
ELECTRIC LAST: Labaton Sucharow Files Securities Class Action
EMBARK TECHNOLOGY: Faces Hardy Class Suit Over Stock Price Drop
EVERBRIDGE INC: Labaton Sucharow Files Securities Class Action
EVERBRIDGE INC: Labaton Sucharow Reminds of June 3 Deadline
EXICURE INC: Sim Shareholder Suit Ongoing
EXPRESS INC: Summary Judgment Bids Filed in Chacon Labor Class Suit
FARCHITECTURE BB: Mejia Files ADA Suit in S.D. New York
FEDEX CORP: Overpeck Loses Bid to Certify Class and Bid to Seal
FIRST HORIZON BANK: Young Files ADA Suit in S.D. New York
GOLDEN ISLES MEDICAL: Mejia Files ADA Suit in S.D. New York
GRAB HOLDINGS: Bronstein Gewirtz Reminds of May 16 Deadline
GREENSKY LLC: Robinson+Cole Attorney Discusses 11th Cir. Ruling
GRUBHUB INC: Must Face Class Action Over Pricing Rules
HOMOLOGY MEDICINES: Pomerantz LLP Reminds of May 24 Deadline
HUDSON RIVER FOODS: Mejia Files ADA Suit in S.D. New York
HYATT HOTELS: Court Grants in Part Bid to Dismiss Clark Class Suit
IKEA DISTRIBUTION: Wage Class Action to Remain in Federal Court
JEFFERSON PARISH, LA: Unconstitutionality of SBSEP Upheld in Mellor
JPMORGAN CHASE: Duke Suit Removed from State Court to S.D. Cal.
K&B AUTO SALES: Vogt Suit Removed to E.D. Missouri
KAHRS LAW OFFICES: Sims Files FDCPA Suit in D. Kansas
KONINKLIJKE PHILIPS: Suit Alleges Defective Sleep Apnea Machines
KWIK TEK: Calcano Files ADA Suit in S.D. New York
LA TERRA FINA: West Suit Removed to E.D. Missouri
LAKEVIEW LOAN: Faces Class Actions Over 2021 Data Breach
LAWRENCE MARKS: Credit Unions File Suit in S.D. New York
LOGAN HEALTH: Former Patients File Data Breach Class Action
LONG BEACH COMMUNITY: Faces Class Action Over Unpaid Worked Hours
LUCID GROUP: Bernstein Liebhard Reminds of May 31 Deadline
LUCID GROUP: Robbins Geller Reminds Investors of May 31 Deadline
MATRIX TRUST: Faces Class Action Over Unauthorized Plan Fees
MAVI JEANS: Lawal Files ADA Suit in S.D. New York
MCDONALD'S CORP: Settles Sexual Harassment Class Action for $1.5MM
META PLATFORMS: Levi & Korsinsky Reminds of May 9 Deadline
META PLATFORMS: Plaintiffs' Lawyers File Sanctions Motion
META PLATFORMS: Suit Over Abuse of Dominant Position Pending
MIKE BLOOMBERG: Court Trims Claims in Wood's 2nd Amended Complaint
MIKE BLOOMBERG: S.D. New York Dismisses Sklair's 1st Amended Suit
NATIONAL PUBLIC: Discloses Subscribers' Identities, Dawood Alleges
NCINO INC: Faces Antitrust Suit in E.D. N.C.
NEW PERSPECTIVE: Woods Seeks Unpaid Wages & Back Pay Under FLSA
NEW YORK: Faces Class Action Over Mental Health Services
OREGON: Judge Certifies Class Action Over Prison COVID Response
PEPSICO: Faces Overtime Class Action in New Jersey
RA MEDICAL: Final Hearing on Derr Suit Settlement Set for June 13
RAM PAYMENT: Antico's Bid to Certify Class Denied Without Prejudice
REAL KETONES: Mejia Files ADA Suit in S.D. New York
RIVIAN AUTOMOTIVE: Faces Securities Suit in C.D. Cal.
SETERUS INC: California Court Denies Lemp's Bid to Certify Class
SHERWIN-WILLIAMS: Faces Class Suit Over Deceptive Surcharge Scheme
SHOPIFY INC: Fails to Secure Customers' Info, Forsberg Suit Says
SHOSHANNA COLLECTION: Lawal Files ADA Suit in S.D. New York
SIG SAUER: Must Face Class Action Over P320 Pistol's Safety Issues
SOUTHWEST AIRLINES: Averts Class Action Over Military Leave
SPLUNK INC: California Court Narrows Claims in Securities Suit
SPRINT CORP: Court Narrows Claims in Solomon's Amended Complaint
STONEMORE INC: Corporate Officer Faces Fried Class Suit
SYNCHRONY FINANCIAL: Young Files ADA Suit in S.D. New York
TICKETSONSALE.COM: Shankula Sues Over Failure to Provide Refunds
UDEMY INC: Williams Suit Stayed Pending Arbitration
ULTA BEAUTY: Shearman & Sterling Discusses Class Action Ruling
UNITED STATES: Court Dismisses Ravi Suit for Lack of Jurisdiction
USI INSURANCE: New York Court Dismisses Cunningham ERISA Class Suit
VERTIV HOLDINGS: Bernstein Liebhard Reminds of May 23 Deadline
WOODMAN'S FOOD: Wyngaard, Hunter, & Robertson Suits Consolidated
[*] Epstein Becker Attorney Discusses Arbitration Pros, Cons
[^] CLASS ACTION Money & Ethics Conference on May 2 - Be A Speaker
*********
1847 GOEDEKER INC: Faces Boden Securities Suit in DE Court
----------------------------------------------------------
1847 Goedeker Inc. disclosed in its Form 10-K Report for the fiscal
year ended December 31, 2021, filed with the Securities and
Exchange Commission on March 31, 2022, that a stockholder filed a
Class Action Complaint in the Court of Chancery against the Company
and its Board of Directors on March 1, 2022.
The lawsuit, captioned "Scot T. Boden v. 1847 Goedeker Inc., et
al.," Case No. 2022-0196-SG, asserts two claims for relief. The
first is against the company for alleged violation of the Delaware
General Corporation Law Section 225(b) for improper tabulation of
the stockholder vote on the Share Increase Proposal. The second
asserts that the company's directors breached their fiduciary
duties by incorrectly tabulating the stockholder vote, and by
causing a purportedly invalid amendment to its Certificate of
Incorporation to be filed with the Delaware Secretary of State.
1847 Goedeker is a content-driven and technology-enabled shopping
destination for appliances, furniture and home goods.
3M COMPANY: Ohio Court Certifies PFAS Class Action Lawsuit
----------------------------------------------------------
John Gardella, in an article for CMBG3 Law, disclosed that on March
8, 2022, the Ohio court issued an opinion in the Hardwick v. 3M
case in which it certified a PFAS class action lawsuit that would
include over seven million people. In addition, the court left open
the possibility that citizens from additional states outside of
Ohio could be added to the class, which could potentially add
millions more plaintiffs to the lawsuit. The decision was quickly
appealed by the defendants and various third parties not involved
in the litigation are filing briefs with the Sixth Circuit court
asking the court to consider overturning the lower court's
decision.
The significance of the class certification ruling extends well
beyond just the PFAS manufacturers and suppliers that are directly
named in the lawsuit, though. Our prediction is that, if the class
action lawsuit proceeds, it will open the door to similar cases
being filed in other states and downstream companies eventually
being added into the lawsuits. The financial impacts of this future
development would be enormous to companies that did not manufacture
PFAS. Companies, lenders, and investors alike must pay close
attention to this case and understand the future potential risks
that it poses to businesses.
The PFAS Class Action Lawsuit - Hardwick v. 3M
Filed in 2018, the Hardwick case was noteworthy at the time due to
the proposed scope of plaintiffs that plaintiffs' counsel sought to
include in the case -- any U.S. citizen with detectable levels of
PFAS in their blood, which is estimated to be over 95% of the U.S.
population by various sources. The case was also significant
because the lawsuit did not seek monetary damages. Instead, the
relief sought from the court was the establishment of a medical
monitoring program for affected citizens and the establishment of
an independent science panel to study the effects of numerous PFAS
on human health.
To anyone who is familiar with the history of PFAS litigation, the
latter remedy sought will sound familiar, as Attorney Rob Bilott
famously secured the now renowned "C8 Science Panel" in his PFAS
litigation in West Virginia nearly two decades ago. The results of
that science panel, which studied the effects of PFOA on human
health, led to the landmark findings of probable links between PFOA
(also known as C8) and adverse impacts on human health. It was the
C8 Science Panel findings that significantly influenced litigation
activity, regulatory and legislative activity with respect to PFAS,
and media attention on PFAS issues.
March 2022 Court Ruling
The Ohio court ruled that the class of plaintiffs that will be
allowed to proceed with the lawsuit is "[citizens of Ohio] who have
0.05 parts per trillion (ppt) of PFOA (C-8) and at least 0.05 ppt
of any other PFAS in their blood serum." The Court limited the
class to citizens of Ohio instead of citizens in the United States
due to the fact that numerous states do not yet recognize medical
monitoring as a legal cause of action, and some states do not
permit lawsuits to proceed for an increased risk of disease without
any proof of actual harm.
However, the same reasoning that limited the proposed class to only
citizens of Ohio may also permit for the expansion of the class -
something which the Ohio court invited briefing on. In short, the
court recognized that, similar to Ohio, there are other states that
do allow for medical monitoring claims under state laws, and those
states' citizens may be permitted to join the Ohio class action
lawsuit.
The defendants in the case quickly filed for an appeal to the Sixth
Circuit, seeking interlocutory review by the court. They argue,
among other things, that the class cope is too broad and the costs
to implement the remedies sought would be in the billions of
dollars, especially given that the lawsuit requested testing
pertaining to any PFAS.
Impact On Downstream Businesses
The Ohio state court ruling is incredibly significant not only to
the companies directly involved in the litigation, but also to
downstream commerce entities. While the manufacturers involved in
the current litigation are the immediate targets, it is not outside
the realm of possibility to image companies who utilized PFAS,
emitted them into the environment, and allegedly contributed to
PFAS in the blood of citizens of Ohio (and other states that might
be added to the class) being brought into the lawsuit, or pursued
in future lawsuits similar to Hardwick. The case will continue to
be closely watched by anyone involved in the PFAS litigation, most
immediately to see whether the class of plaintiffs is limited in
any way or potentially broadened to include other states. [GN]
ADVENT TECHNOLOGIES: Notice of Dismissal Filed in Frey Suit
-----------------------------------------------------------
Advent Technologies Holdings, Inc. disclosed in its Form 10-K
Report for the fiscal year ended December 31, 2021, filed with the
Securities and Exchange Commission on March 31, 2022, that on
February 10, 2021, a notice of dismissal was filed in the Supreme
Court of the State of New York, County of New York with regards to
a December 17, 2020 purported shareholder class action complaint
filed by Dillon Frey against the company in said court.
The complaint alleged that a February 2021 merger between AMCI
Acquisition Corp. and Advent Technologies and the acquisition of
UltraCell LLC, SerEnergy AS and Fischer Eco Solutions GmbH were
both procedurally and substantively unfair and sought to maintain
the action as a class action and enjoined the merger, among other
things, without stating a specific amount of damages.
Advent is a materials and technology development company operating
in the fuel cell and hydrogen technology space developing,
manufacturing and assembling complete fuel cell systems and the
critical components that determine the performance of hydrogen fuel
cells and other energy systems.
AFRICAN METHODIST: AARP Foundation Joins ERISA Class Action
-----------------------------------------------------------
Careena Eggleston, writing for AARP, reports that AARP Foundation
attorneys have joined a class-action lawsuit as co-counsel on
behalf of about 5,000 African Methodist Episcopal (AME) Church
employees and retirees, whose fiduciaries mishandled and lost
nearly $90 million in retirement funds. The suit, filed by the law
firm Kantor and Kantor, LLP, alleges that AME leadership and its
retirement services department violated the Employee Retirement
Income Security Act (ERISA) and breached their contractual and
fiduciary duties by not honoring an earned and promised pension
plan for pastors, elders, bishops, and other employees of
affiliated colleges and seminaries.
The AME Church is the oldest and one of the largest U.S. Protestant
denominations and historically Black churches, with more than 2.5
million members and 7,000 congregations worldwide. Participants in
its retirement plan had been told for years that contributions from
individual local churches were invested in a conservative life
insurance company to create a retirement fund. Plan summaries sent
to employees also stated that the fund was covered by ERISA, and
that they had federal pension protections. And AME promised to
contribute 12% of each participant's annual wages into their
retirement fund.
Contrary to regular audits presented to its Board and church
membership at large, two-thirds of the funds — approximately $90
million — were instead invested in a risky venture capital
company and an ultimately valueless real estate deal. When
disclosing the loss of funds in February, AME leadership told
participants that the retirement plan was not covered by ERISA
because of a religious exemption, meaning no federal insurance to
protect against the loss. Further, it appears that AME did not
enroll numerous clergy in the plan as they should have and did not
make promised contributions. AME leadership also stated they could
not find any plan documents and that, accordingly, they would
create a new plan that would provide only 30% of the participants'
vested benefits.
"As a result of the African Methodist Episcopal Church's gross
financial mishandling, nearly 5,000 pastors, church elders, and
other employees find themselves contemplating a future without the
retirement funds they were depending on," said William Alvarado
Rivera, Senior Vice President of Litigation at AARP Foundation.
"These employees and retirees served their community for years,
some even decades, and justice requires they receive their deserved
earnings they were promised."
Plaintiff Ret. Presiding Elder Cedric Alexander, a former AME
minister, filed the suit in the U.S. District Court for the
District of Maryland on March 22, 2022. Defendants include Dr.
Jerome V. Harris (Executive Director of AME's Department of
Retirement Services), Bishop Samuel L. Green, Sr. (former Executive
Director), Trustees of the AME Church Ministerial Retirement
Annuity Plan, AME Church Ministerial Retirement Annuity Plan,
Department of Retirement Services, AME Church, Inc., General Board
of the AME Church and Council of Bishops of the AME Church. [GN]
AGWM UNITED: Faces Class Action Over Alleged Immigration Scam
-------------------------------------------------------------
Lautaro Grinspan, writing for The Atlanta Journal-Constitution,
reports that defendants allegedly obtained visas for Mexican
migrants by telling U.S. authorities they would be employed as
engineers. Instead, they worked as production line workers.
A Gwinnett-based labor recruiter is named in a class action suit
filed in Atlanta, which alleges that dozens of Mexican engineers
were brought to the U.S. under false pretenses, resulting in the
migrants working as underpaid production line workers at an auto
parts manufacturer.
The lawsuit alleges AGWM United and agents acting on the company's
behalf committed an immigration violation when they helped secure
temporary visas for the Mexican nationals, misleading the
government by indicating that they would be employed as
professional engineers. The complaint was filed in the federal
Georgia Northern District Court.
The workers were recruited through the temporary TN visa program,
which allows "qualified" Canadian and Mexican citizens, including
engineers, to gain temporary entry into the U.S.
Once in the U.S., workers joined the workforce of SMART Alabama, an
auto parts manufacturer based in Luverne and the second defendant
named in the suit. Among the Mexican nationals mislead and ensnared
in the scheme was Jaime Obregon Acosta, who holds a bachelor's in
mechanical engineering and a master's in business administration.
While on the job, Obregon and others allegedly "had to work
horrendously long hours on the production line at hourly wages that
were a fraction" of that of the U.S. citizens.
Daniel Werner, a civil rights litigator who is representing the
workers, said he has recently seen cases of visa misclassification
"over and over again," where companies' aim is to lower labor
costs.
A tight labor market and a surging labor movement could make
fraudulent visa schemes more attractive, with low-wage jobs
becoming harder and harder to fill by domestic workers.
"It's a huge moment" in the economy, said Shelly Anand, executive
director of the Sur Legal Collaborative, an immigrant and workers'
rights non-profit based in Atlanta. "And so, employers are going to
look elsewhere for a labor force that is going to be more compliant
. . . especially in some of these industries where there's high
turnover."
Neither AGWM United nor SMART Alabama returned requests for comment
from the AJC.
An alleged bait-and-switch
In January 2020, according to the complaint, Obregon saw an AGWM
United job posting for a quality control engineer position based in
the southeastern U.S. Shortly afterwards, an employee at
Gwinnett-based AGWM - a company that describes itself as a
recruiter of "qualified TN visa candidates who are allowed to work
in the United States" - got in touch. The employee indicated that
SMART was interested in hiring him for a period of one year. She
told Obregon he would work on the production line for one year,
earning around $39,000, but that a promotion to an engineer role
was possible after that.
AGWM management allegedly knew that SMART would misrepresent to
U.S. immigration authorities that Obregon would be employed as an
engineer, rather than a line worker.
According to the complaint, in a three-year period between 2019 and
the present, defendants engaged in "similar separate fraudulent
acts" to recruit over 40 Mexican engineers as production line
workers.
Limited oversight
The TN visa program was created as a result of provisions in the
1994 North American Free Trade Agreement that facilitated U.S.
entry and employment for certain professionals from Canada and
Mexico.
Although the TN visa program has grown considerably in recent years
- from 16,119 visas issued in fiscal year 2017 to 24,904 in 2021,
according to the State Department - oversight is lax. In contrast
to other temporary visa programs, such as the H-2A program for
migrant farmworkers overseen by the Department of Labor, attorney
Werner says there is no robust mechanism in place to protect TN
workers after they arrive in the country.
"TN is kind of the Wild West. I mean, the workers come here and
there's just no reporting, no oversight . . . And I think that's
part of the reason why it's attractive to some employers."
The Department of Labor referred questions about TN enforcement to
the State Department. In an statement, a State Department official
noted there is a multi-step screening process in the front end to
prevent fraud from happening.
Sur Legal's Anand says the merits of a program like the TN visa are
easy to see on paper.
"I think in some ways it is being used for good," she said.
"There's a huge talent pool in Mexico, for example, of engineers."
But she noted that most types of immigrant labor programs can be
abused by "bad employers."
"It's a recurring theme." [GN]
AMAZON.COM INC: Tosses Warehouse Workers' Age Discrimination Suit
-----------------------------------------------------------------
Christian Tabacco, writing for Law Street, reports that a Northern
District of California magistrate judge foreclosed all age-related
discrimination claims lodged by a former Amazon warehouse worker
against the e-commerce titan.
The four-page opinion dismissed the case mostly without prejudice,
finding the allegations impermissibly vague, untimely, or that the
plaintiff lacked standing to bring them.
The opinion recounted that the woman filed suit in December 2021 on
behalf of herself and a putative class of California Amazon
warehouse workers over age 40, alleging that the e-commerce company
has a policy or practice inflicting an unlawful disparate impact on
older employees. Amazon removed the case to federal court in
January.
Magistrate Judge Jacqueline Scott Corley analyzed the plausibility
of the California law discrimination claims, starting with
disparate impact. The court concluded that the complaint leveled
too generalized a challenge to Amazon's policy of "rate of
production and/or work production quotas."
"The complaint's reader is left with the impression that the
complaint drafter does not even know what is being challenged," the
opinion said. Further, the court brushed off "bald" allegations
that the plaintiff and other older employees suffered transfers,
demotions, adverse schedules, and terminations at higher rates than
younger workers.
Related California Fair Employment and Housing Act (FEHA) claims
failed for the same reason, as did the plaintiff's California
Unfair Competition Law claim. "Plaintiff has also not sufficiently
alleged her standing to pursue such a claim since only equitable
relief, not damages, are recoverable," the court added.
In granting leave to amend all but the plaintiff's injunctive
relief claim and cause of action involving employment outside the
statute of limitations, the court cautioned the plaintiff and her
counsel to adhere to Rule 11 pleading strictures.
The plaintiff is represented by the Law Office of Eric Honig and
the Law Offices of Peter M. Hart. Amazon is represented by Morgan,
Lewis & Bockius LLP. [GN]
AMPLE FOODS: Mejia Files ADA Suit in S.D. New York
--------------------------------------------------
A class action lawsuit has been filed against Ample Foods, Inc. The
case is styled as Jose Mejia, individually, and on behalf of all
others similarly situated v. Ample Foods, Inc., Case No.
1:22-cv-02821 (S.D.N.Y., April 5, 2022).
The lawsuit is brought over alleged violation of the Americans with
Disabilities Act.
Ample Foods -- https://www.amplemeal.com/ -- creates optimally
nutritious meal replacements for busy, health-conscious
people.[BN]
The Plaintiff is represented by:
Edward Y. Kroub, Esq.
MIZRAHI KROUB LLP
200 Vesey Street
New York, NY 10281
Phone: (212) 595-6200
Email: ekroub@mizrahikroub.com
APPLE INC: Dutch Consumer Protection Group Launches Class Action
----------------------------------------------------------------
Olivia Rafferty, writing for GCR, reports that a Dutch consumer
protection group has launched a standalone class action claim
against Apple over its app store rules, partly based on fines
imposed on the company by the country's antitrust authority for
failing to comply with an abuse of dominance decision. [GN]
APPLE INC: Settles iCloud Subscription Class Action for $14.8MM
---------------------------------------------------------------
Hip2Save reports that if you own an Apple device, then you know
that the 5GB of free storage on your iCloud account fills up pretty
quickly. If you've paid for a higher tier of iCloud storage in the
past, then you may be entitled to a refund as the result of a
recent class-action lawsuit.
Apple Class-Action Lawsuit Details
In the Williams vs. Apple Inc. class-action lawsuit, the company
was accused of storing iCloud data on third-party servers instead
of its own. Apple maintains that it did nothing wrong, but the
company has agreed to a $14.8 million settlement for breach of
contract.
This settlement includes any U.S. resident who paid for an iCloud
subscription any time between September 16, 2015, and January 31,
2016. Class members don't need to take any action to be included in
this settlement, as long as the email used to sign up for iCloud
storage is still active.
Look for this email: Qualifying class members should have received
an email with the subject line "Notice of Settlement" informing
them of their status on or about March 24. This email came from the
sender "Settlement Administrator" at
storageclassaction@administratorclassaction.com.[GN]
ASTRA SPACE: Faces Artery Securities Suit in New York
-----------------------------------------------------
Astra Space, Inc. disclosed in its Form 10-K Report for the fiscal
year ended December 31, 2021, filed with the Securities and
Exchange Commission on March 31, 2022, that on February 9, 2022, a
putative class action was filed in the United States District Court
for the Eastern District of New York styled "Artery v. Astra Space,
Inc. et al.," Case No. 1:22-cv-00737.
The complaint alleges that the company and certain of its current
and former officers violated provisions of the Securities Exchange
Act of 1934 with respect to certain statements concerning its
capabilities and business prospects.
The complaint seeks unspecified damages on behalf of a purported
class of purchasers of its securities between February 2, 2021 and
December 29, 2021.
Astra provides launch and space services and products vis-à-vis
small satellites in low earth orbit.
ASTRA SPACE: Faces Meyer Securities Suit in DE Court
----------------------------------------------------
Astra Space, Inc. disclosed in its Form 10-K Report for the fiscal
year ended December 31, 2021, filed with the Securities and
Exchange Commission on March 31, 2022, that on March 8, 2022, a
stockholder derivative suit was filed in the United States District
Court for the State of Delaware styled "Meyer, et al., v. Kemp, et
al.," Case No. 22-cv-00308 (D. Del.).
The complaint asserts claims against its founder and CEO, Chris
Kemp, for breach of fiduciary duty, waste, unjust enrichment and
contribution under the Securities Exchange Act of 1934.
Plaintiffs seek monetary damages and reformation of the company's
corporate governance and internal procedures, restitution including
a disgorgement of any compensation, profits or other benefits
achieved, and reimbursement of their reasonable fees and costs,
including attorney's fees.
Astra provides launch and space services and products vis-à-vis
small satellites in low earth orbit.
ASTRA SPACE: Faces Riley Securities Suit in E.D. N.Y.
-----------------------------------------------------
Astra Space, Inc. disclosed in its Form 10-K Report for the fiscal
year ended December 31, 2021, filed with the Securities and
Exchange Commission on March 31, 2022, that on March 23, 2022, a
putative class action was filed in the United States District Court
for the Eastern District of New York styled "Riley v. Astra Space,
Inc., et al.," Case No. 1:22-cv-01591.
Said action alleges that the company and certain of its current and
former officers violated provisions of the Securities Exchange Act
of 1934 with respect to certain statements concerning its
capabilities and business prospects.
Astra provides launch and space services and products vis-à-vis
small satellites in low earth orbit.
BAYER AG: Prenatal Vitamins Contain Toxic Substances, Suit Says
---------------------------------------------------------------
PGMBM reports that German-based biotechnology company Bayer was
slapped with a product liability class action on April 1 in
Pennsylvania Eastern District Court.
The case, brought by PGMBM LLC and other law firms, contends that
Bayer's 'One A Day' prenatal vitamins contain toxic heavy metals
and other harmful substances.
Counsel have not yet appeared for the defendants. The case is
2:22-cv-00640, Kharaeva et al v. Bayer AG et al. [GN]
BOBBI BROWN: Lawal Files ADA Suit in S.D. New York
--------------------------------------------------
A class action lawsuit has been filed against Bobbi Brown
Professional Cosmetics, Inc. The case is styled as Rafia Lawal, on
behalf of herself and all others similarly situated v. Bobbi Brown
Professional Cosmetics, Inc., Case No. 1:22-cv-02798 (S.D.N.Y.,
April 5, 2022).
The lawsuit is brought over alleged violation of the Americans with
Disabilities Act.
Bobbi Brown Cosmetics -- https://www.bobbibrowncosmetics.com/ -- is
a global brand, having expanded beyond lipstick to a full range of
color cosmetics and skincare.[BN]
The Plaintiff is represented by:
Yitzchak Zelman, Esq.
MARCUS & ZELMAN LLC
701 Cookman Avenue, Suite 300
Asbury Park, NJ 07712
Phone: (845) 367-7146
Fax: (732) 298-6256
Email: yzelman@marcuszelman.com
BROOKSIDE, AL: Coleman Files Suit in N.D. Alabama
-------------------------------------------------
A class action lawsuit has been filed against The Town of
Brookside, Alabama, et al. The case is styled as Brittany Coleman,
Brandon Jones, Chekeithia Grant, Alexis Thomas, on behalf of
themselves and all others similarly situated v. The Town of
Brookside, Alabama, Jett's Towing, Inc., Marcus Sellers, Case No.
2:22-cv-00423-NAD (N.D. Ala., April 4, 2022).
The nature of suit is stated as Other Civil Rights for the Civil
Rights (Employment Discrimination).
Brookside -- https://www.brooksidealabama.com/ -- is a town in
north-central Jefferson County, Alabama, United States.[BN]
The Plaintiff is represented by:
William M. Dawson, Esq.
DAWSON LAW OFFICE
1736 Oxmoor Road, #101
Birmingham, AL 35209
Phone: 307-7021
Email: bill@billdawsonlaw.com
C3.AI INC: Hagens Berman Reminds Investors of May 3 Deadline
------------------------------------------------------------
Hagens Berman urges C3.ai, Inc. (NYSE: AI) investors with
significant losses to submit your losses now. A securities fraud
class action has been filed and investors with significant losses
have the opportunity to lead the case.
Class Period: Dec. 9, 2020 - Feb. 15, 2022
Lead Plaintiff Deadline: May 3, 2022
Visit: www.hbsslaw.com/investor-fraud/AI
Contact An Attorney Now: AI@hbsslaw.com
844-916-0895
C3.ai, Inc. (AI) Securities Fraud Class Action:
The litigation focuses on C3.ai's senior management's statements
about the company's customers leading up to and after the company's
IPO conducted in Dec. 2020 including, without limitation, their
repeated touting of relationships with Baker Hughes and others,
claiming those relationships support investor expectations of
future revenue visibility.
The lawsuit alleges defendants made false and misleading statements
and/or failed to disclose that: (1) C3.ai's partnership with Baker
Hughes was deteriorating; (2) the company employed a flawed
accounting methodology to conceal its Baker Hughes partnership; (3)
the company faced challenges in product adoption; and, (4) the
company overstated inter alia the extent of its investment in
technology, description of its customers, its total addressable
market ("TAM"), the pace of its market growth, and the scale of
alliances with its major business partners.
The lawsuit alleges the truth began to eke out on Feb. 16, 2022,
when analyst Spruce Point Capital Management published a report
entitled "Real Intelligence: Sell C3.ai" concluding the price of
C3.ai shares presents a 40% - 50% downside risk. Among other
things, Spruce Point alleged it uncovered "[s]igns of problematic
financial reporting and accounting regarding the Baker Hughes joint
venture and a revolving door in C3.ai's Chief Financial Officer
position," Spruce Point also found "numerous discrepancies"
regarding "the value of and cumulative investments made by C3.ai in
its technology, description of customers, its [TAM], the pace of
market growth and the scale of alliances with companies such as
Microsoft, Hewlett Packard Enterprises, Google Cloud, Intel and
Amazon Web Services."
Shortly after Spruce Point's analysis, C3.ai's CFO (Adeel Manzoor)
resigned after 3 months on the job, and analysts at Deutsche Bank
reportedly slashed their rating to "sell" citing the lack of
stability in top management as increasing the risk around financial
reporting.
"We're focused on investors' losses and proving C3.ai engaged in
accounting fraud," said Reed Kathrein, the Hagens Berman partner
leading the investigation.
If you invested in C3.ai, or have knowledge that may assist the
firm's investigation, click here to discuss your legal rights with
Hagens Berman.
Whistleblowers: Persons with non-public information regarding C3.ai
should consider their options to help in the investigation or take
advantage of the SEC Whistleblower program. Under the new program,
whistleblowers who provide original information may receive rewards
totaling up to 30 percent of any successful recovery made by the
SEC. For more information, call Reed Kathrein at 844-916-0895 or
email AI@hbsslaw.com.
About Hagens Berman
Hagens Berman is a global plaintiffs' rights complex litigation law
firm focusing on corporate accountability through class-action law.
The firm is home to a robust securities litigation practice and
represents investors as well as whistleblowers, workers, consumers
and others in cases achieving real results for those harmed by
corporate negligence and fraud. More about the firm and its
successes can be found at hbsslaw.com.
Contact:
Reed Kathrein, 844-916-0895 [GN]
CABALETTA BIO: Vincent Wong Law Reminds of April 29 Deadline
------------------------------------------------------------
Attention Cabaletta Bio, Inc. ("Cabaletta") (NASDAQ: CABA)
shareholders:
The Law Offices of Vincent Wong on April 4 disclosed that a class
action lawsuit has commenced on behalf of investors. This lawsuit
is on behalf of persons and entities that purchased or otherwise
acquired: (a) Cabaletta common stock pursuant and/or traceable to
documents issued in connection with the Company's initial public
offering conducted on or about October 24, 2019; and/or (b)
Cabaletta securities between October 24, 2019 and December 13,
2021, both dates inclusive.
If you suffered a loss on your investment in Cabaletta, contact us
about potential recovery by using the link below. There is no cost
or obligation to you.
https://www.wongesq.com/pslra-1/cabaletta-bio-inc-loss-submission-form?prid=25450&wire=4
ABOUT THE ACTION: The class action against Cabaletta includes
allegations that the Company made materially false and/or
misleading statements and/or failed to disclose that: (i) top-line
data of the Phase 1 Clinical Trial indicated that Cabaletta's lead
product candidate, DSG3-CAART, had, among other things, worsened
certain participants' disease activity scores and necessitated
additional systemic medication to improve disease activity after
DSG3-CAART infusion; (ii) accordingly, DSG3-CAART was not as
effective as the Company had represented to investors; (iii)
therefore, the Company had overstated DSG3-CAART's clinical and/or
commercial prospects; and (iv) as a result, the Company's public
statements were materially false and misleading at all relevant
times.
DEADLINE: April 29, 2022
Aggrieved Cabaletta investors only have until April 29, 2022 to
request that the Court appoint you as lead plaintiff. You are not
required to act as a lead plaintiff in order to share in any
recovery.
Vincent Wong, Esq. is an experienced attorney who has represented
investors in securities litigations involving financial fraud and
violations of shareholder rights. Attorney advertising. Prior
results do not guarantee similar outcomes.
CONTACT:
Vincent Wong, Esq.
39 East Broadway
Suite 304
New York, NY 10002
Tel. 212.425.1140
E-Mail: vw@wongesq.com [GN]
CADETS CANADA: Faces Class Action Lawsuit Over Sexual Abuse
-----------------------------------------------------------
Hilary Lockhart was only 14 years when she joined the Canadian
Cadet Organization. During her time with the organization she was
groomed by an instructor named Todd Evans. Her complaints to female
supervisors were never escalated beyond the initial report.
Lockhart and her mother, Melissa Lockhart, are spearheading a
national class action lawsuit against the organization claiming
that the culture in place "condones and encourages sexual assault
and harassment towards young female cadets."
The lawsuit cites 245 cases of sexual misconduct in Cadets Canada
between 2006 and 2015, some involving adult instructors or reserve
officers. Since the official lawsuit filing on March 1, 2022,
dozens of potential class members have come forward with additional
allegations of a toxic culture of misconduct. It is estimated that
the final class size could include hundreds of victims across
Canada.
Victims and their representatives will address the latest updates
that have come to light on this matter, as well as their intended
plan of action.
What:
LIVE Press Conference
Who:
Hilary Lockhart & additional Plaintiffs, along with Lawyers Michael
Blois,
Sandra Zisckind, Mathura Santhirasegaram, and Darryl Singer
Where:
Offices of Diamond and Diamond Personal Injury Lawyers, 255
Consumers
Road, Floor 5, Toronto, ON M2J 1R3
When:
April 5, 2022 at 11:30 am
Please be advised that the Plaintiffs do not wish for any further
contact from media and will not be issuing any statements prior to
the press conference. Any direct approach will be viewed as a
breach of their privacy.
All pertinent information will be provided during the above noted
press conference. After the initial statements questions will be
fielded by the legal team at Diamond and Diamond. [GN]
CANADA: Legal Support Sessions Part of Day School Settlement
------------------------------------------------------------
Jeff Pelletier, writing for Nunatsiaq News, reports that free legal
support sessions for survivors and family members seeking
compensation for abuse suffered in the Indian Day School system
will be offered in Iqaluit and Rankin Inlet.
The compensation is part of a 2019 settlement from a class action
lawsuit against the federal government over mistreatment of
residents in the system.
An estimated 140,000 First Nations, Métis and Inuit are entitled
to it for having experienced physical, sexual and psychological
abuse in the schools from the late 1800s until 2000, according to a
Law Society of Nunavut news release.
It worked with Tukisigiarvik Society and Nunavut Legal Aid to
organize the sessions after survivors and families reported having
trouble figuring out if they were eligible for compensation and how
to apply, said law society president Nalini Vaddapalli.
"I would just encourage anyone who is unsure, needs some guidance,
just to reach out to us so we can provide information and give them
a chance to file a claim if they're eligible," she said.
With a July 13 deadline to apply, Vaddapalli said she wants to
ensure people can have their questions answered so they get the
compensation they are entitled to.
In-person sessions are scheduled for Iqaluit on April 12 and
May 14 from 10:30 a.m. to 7 p.m. at the Tukisigiarvik Society
office.
There will also be a session in Rankin Inlet in early May, with
date and location to be determined. Nunavut residents from other
communities can get support over the phone at 867-222-5345.
Vaddapalli said the sessions will be held to answer questions, with
services in English and Inuktitut.
"There was a significant gap with respect to the support that was
being offered through the claim council," she said.
"We can provide that direct support to family members . . . just
filling in that important gap that we're aware of in our
territory."
In addition to survivors being eligible for compensation, there are
a few scenarios for which their families may claim compensation on
their behalf, Vaddapalli said.
If a survivor has died, with or without a will, their family may
receive compensation.
For survivors who are living but unwell or unable to apply for
compensation on their own, a power of attorney may go through the
processes on their behalf.
"These sessions are open to all family members or friends of a
family member who would like to submit a claim, and we will provide
free legal support to assist them in getting the paperwork
altogether," Vaddapalli said.
"Once the paperwork has been gathered . . . the lawyers will take
over the file and take the appropriate steps." [GN]
CBL & ASSOCIATES: Faces Consolidated Securities Suit
----------------------------------------------------
CBL and Associates Properties, Inc. disclosed in its Form 10-K
Report for the fiscal year ended December 31, 2021, filed with the
Securities and Exchange Commission on March 31, 2022, that the
company and certain of its officers and directors were named as
defendants in three putative securities class action lawsuits, each
filed in the United States District Court for the Eastern District
of Tennessee, on behalf of all persons who purchased or otherwise
acquired the company's securities.
Those cases were consolidated on July 17, 2019, under the caption
"In re CBL & Associates Properties, Inc. Securities Litigation,"
1:19-cv-00149-JRG-CHS, and a consolidated amended complaint was
filed on November 5, 2019, seeking to represent a class of
purchasers from July 29, 2014 through March 26, 2019.
The operative complaint filed in the securities class action
litigation alleges violations of the securities laws, including,
among other things, that the defendants made certain materially
false and misleading statements and omissions regarding the
company's contingent liabilities, business, operations, and
prospects during the periods of time specified above.
Plaintiffs seek compensatory damages and attorneys' fees and costs,
among other relief, but have not specified the amount of damages
sought. The defendants moved to dismiss all claims on December 20,
2019, and that motion remains pending.
On November 2, 2021, the defendants filed a proposed supplemental
motion to dismiss brief, arguing that the company should be
dismissed as a defendant in the case. The proposed supplemental
motion to dismiss brief also argued that the operative complaint
fails to state a viable claim against any individual defendant.
CBL and Associates Properties is a self-managed, self-administered,
fully integrated real estate investment trust. It owns, develops,
acquires, leases, manages, and operates regional shopping malls,
outlet centers, lifestyle centers, open-air centers and other
properties.
CBL & ASSOCIATES: Hebig Securities Suit Voluntarily Dismissed
-------------------------------------------------------------
CBL and Associates Properties, Inc. disclosed in its Form 10-K
Report for the fiscal year ended December 31, 2021, filed with the
Securities and Exchange Commission on March 31, 2022, that Stephen
D. Lebovitz, the company's Director and Chief Executive Officer,
was named as a defendant in a shareholder suit filed in April 14,
2020, captioned "Hebig v. Lebovitz, et al.," Case No.
1:19-cv-00149-JRG-CHS, in the United States District Court for the
Eastern District of Tennessee was voluntarily dismissed due to the
releases of further liability for such claims as provided by the
bankruptcy plan approved by the Bankruptcy Court on August 12,
2021.
The Bankruptcy Court approved the company's Third Amended Chapter
11 Plan on August 12, 2021 and said case was voluntarily dismissed
due to the releases of further liability for such claims as
provided by the bankruptcy plan.
CBL and Associates Properties is a self-managed, self-administered,
fully integrated real estate investment trust. It owns, develops,
acquires, leases, manages, and operates regional shopping malls,
outlet centers, lifestyle centers, open-air centers and other
properties.
CBL & ASSOCIATES: Kurup Securities Suit Voluntarily Dismissed
-------------------------------------------------------------
CBL and Associates Properties, Inc. disclosed in its Form 10-K
Report for the fiscal year ended December 31, 2021, filed with the
Securities and Exchange Commission on March 31, 2022, that that a
case naming Stephen D. Lebovitz, the company's Director and Chief
Executive Officer, in a shareholder suit filed in February 12,
2020, captioned "Kurup v. Lebovitz, et al.," Case No.
2020-0070-JTL, in the Delaware Chancery Court was voluntarily
dismissed due to the releases of further liability for such claims
as provided by the bankruptcy plan approved by the Bankruptcy Court
on August 12, 2021.
CBL and Associates Properties is a self-managed, self-administered,
fully integrated real estate investment trust. It owns, develops,
acquires, leases, manages, and operates regional shopping malls,
outlet centers, lifestyle centers, open-air centers and other
properties.
CBL & ASSOCIATES: Securities Suit in TN Court Ongoing
-----------------------------------------------------
CBL and Associates Properties, Inc. disclosed in its Form 10-K
Report for the fiscal year ended December 31, 2021, filed with the
Securities and Exchange Commission on March 31, 2022, that the
company and certain of its officers and directors were named as
defendants in three putative securities class action lawsuits, each
filed in the United States District Court for the Eastern District
of Tennessee, on behalf of all persons who purchased or otherwise
acquired the company's securities.
Those cases were consolidated on July 17, 2019, under the caption
"In re CBL & Associates Properties, Inc. Securities Litigation,"
1:19-cv-00149-JRG-CHS, and a consolidated amended complaint was
filed on November 5, 2019, seeking to represent a class of
purchasers from July 29, 2014 through March 26, 2019.
The operative complaint filed in the securities class action
litigation alleges violations of the securities laws, including,
among other things, that the defendants made certain materially
false and misleading statements and omissions regarding the
company's contingent liabilities, business, operations, and
prospects during the periods of time specified above.
Plaintiffs seek compensatory damages and attorneys' fees and costs,
among other relief, but have not specified the amount of damages
sought. The defendants moved to dismiss all claims on December 20,
2019, and that motion remains pending.
On November 2, 2021, the defendants filed a proposed supplemental
motion to dismiss brief, arguing that the company should be
dismissed as a defendant in the case. The proposed supplemental
motion to dismiss brief also argued that the operative complaint
fails to state a viable claim against any individual defendant.
CBL and Associates Properties is a self-managed, self-administered,
fully integrated real estate investment trust. It owns, develops,
acquires, leases, manages, and operates regional shopping malls,
outlet centers, lifestyle centers, open-air centers and other
properties.
CBL & ASSOCIATES: Shebitz Securities Suit Voluntarily Dismissed
---------------------------------------------------------------
CBL and Associates Properties, Inc. disclosed in its Form 10-K
Report for the fiscal year ended December 31, 2021, filed with the
Securities and Exchange Commission on March 31, 2022, that a case
naming Stephen D. Lebovitz, the company's Director and Chief
Executive Officer, in a shareholder suit filed in July 22, 2019,
captioned "Shebitz v. Lebovitz et al.," Case No. 1:19-cv-00213, in
the United States District Court for the Eastern District of
Tennessee, was voluntarily dismissed due to the releases of further
liability for such claims as provided by the bankruptcy plan
approved by the Bankruptcy Court on August 12, 2021.
CBL and Associates Properties is a self-managed, self-administered,
fully integrated real estate investment trust. It owns, develops,
acquires, leases, manages, and operates regional shopping malls,
outlet centers, lifestyle centers, open-air centers and other
properties.
CINCINNATI BELL: Kemen Files TCPA Suit in S.D. Ohio
---------------------------------------------------
A class action lawsuit has been filed against Cincinnati Bell Inc.
The case is styled as Susan Kemen, individually, and on behalf of
all others similarly situated v. Cincinnati Bell Inc., Case No.
1:22-cv-00152-DRC (S.D. Ohio, March 24, 2022).
The lawsuit is brought over alleged violation of the Telephone
Consumer Protection Act for Restrictions of Use of Telephone
Equipment.
Cincinnati Bell -- https://my.cincinnatibell.com/ -- doing business
as Altafiber, is a regional telecommunications service provider
based in Cincinnati, Ohio, United States.[BN]
The Plaintiff is represented by:
Brian T. Giles, Esq.
THE LAW OFFICES OF BRIAN T. GILES, LLC
1470 Apple Hill Rd.
Cincinnati, OH 45230
Phone: (513) 379-2715
Email: brian@gilesfirm.com
CINEFLIX MEDIA: Settles Class Suit Over Unpaid OT for $2.5 Million
------------------------------------------------------------------
The Canadian Press reports that two Canadian media and
entertainment unions say Cineflix has agreed to pay workers $2.5
million to settle a class-action lawsuit over unpaid work.
CWA Canada and IATSE say the deal with the Toronto-based media
production company behind several popular reality TV shows comes
after three years of negotiations.
The unions say the suit was launched by law firm Cavalluzzo LLP on
behalf of hundreds of current and former workers for years of
unpaid overtime, vacation pay and holiday premiums.
They say Cineflix had a choice between paying $2.5 million or
paying $1 million and signing a collective agreement with the
unions.
The unions say the company informed Cavalluzzo it had chosen the
first option and that the funds have been placed in trust to pay
workers.
Anna Bourque, the representative plaintiff in the class action,
says the settlement is a win-win for workers. [GN]
COMMUNITY HEALTH: Harvey Seeks to Recover Unpaid Wages, Damages
---------------------------------------------------------------
BROOKE HARVEY, individually and on behalf of all others similarly
situated v. COMMUNITY HEALTH NETWORK, INC., Case No.
1:22-cv-00659-TWP-MJD (S.D. Ind., April 1, 2022) seeks to recover
unpaid overtime wages and other damages owed by Community Health to
the Plaintiff and the non-overtime-exempt workers like him, who
were the ultimate victims of not just the Kronos hack, but also
Community Health's decision to make its front line workers bear the
economic burden for the hack, in violation of the Fair Labor
Standards Act, the Indiana Minimum Wage Law, and the Indiana Wage
Payment Statute.
Like many other companies across the United States, Community
Health's timekeeping and payroll systems were affected by the hack
of Kronos in 2021. That hack led to problems in timekeeping and
payroll throughout Community Health's organization.
As a result, Community Health's workers who were not exempt from
the overtime requirements under federal and state law, were
allegedly not paid for all hours worked or were not paid their
proper overtime premium after the onset of the Kronos hack.
Brooke Harvey is one such Community Health worker. Community Health
could have easily implemented a system for recording hours and
paying wages to non-exempt employees until issues related to the
hack were resolved. But it didn't. Instead, Community Health used
prior pay periods or reduced payroll estimates to avoid paying
wages and proper overtime to these non-exempt hourly and salaried
employees.
Community Health pushed the cost of the Kronos hack onto the most
economically vulnerable people in its workforce. The burden of the
Kronos hack was made to fall on front-line workers – average
Americans -- who rely on the full and timely payment of their wages
to make ends meet.
Community Health is a healthcare system operating hospitals, health
pavilions and doctors offices. Community Health also provides
healthcare services within workplaces, schools, and homes.[BN]
The Plaintiff is represented by:
Matthew S. Parmet,Esq.
PARMET PC
3 Riverway, Ste. 1910
Houston, TX 77056
Telephone: (713) 999 5228
E-mail: matt@parmet.law
CTRL HOLDINGS: Mejia Files ADA Suit in S.D. New York
----------------------------------------------------
A class action lawsuit has been filed against CTRL Holdings LLC.
The case is styled as Jose Mejia, individually, and on behalf of
all others similarly situated v. CTRL Holdings LLC, Case No.
1:22-cv-02822 (S.D.N.Y., April 5, 2022).
The lawsuit is brought over alleged violation of the Americans with
Disabilities Act.
CTRL -- https://drinkctrl.com/ -- is a producer and retailer of
powder-based meal replacement protein shakes for athletes.[BN]
The Plaintiff is represented by:
Edward Y. Kroub, Esq.
MIZRAHI KROUB LLP
200 Vesey Street
New York, NY 10281
Phone: (212) 595-6200
Email: ekroub@mizrahikroub.com
CURALEAF HOLDINGS: Sued in Illinois for Allegedly Confiscating Tips
-------------------------------------------------------------------
Abraham Jewett, writing for Top Class Actions, reports that
employees at Curaleaf cannabis dispensary locations in Chicago,
Illinois, were unlawfully deprived of their tips, a new class
action lawsuit alleges.
Plaintiff Morgan Heller claims store managers at the Curaleaf she
worked at in Northbrook violated the law by confiscating all of the
tips earned during a shift, which she says they kept for
themselves.
Heller claims that, in addition to her location, employees she
spoke with from a Curaleaf store in Melrose Park had a similar
problem with managers allegedly confiscating all of the day's tips.
Store managers at the Northbrook Curaleaf location initially did
not allow employees to accept customer tips, Heller says; however,
she claims the policy was changed in October 2020, at which time a
tip jar was placed at the front of the store.
The understanding among employees was that the tips would be fairly
divided between those that worked in the front assisting customers
and those who worked in the back of the store, according to the
class action lawsuit.
Curaleaf Store Managers Confiscated Tips Earned By Employees
Heller claims that, instead, the tips from each day were
confiscated by management and not distributed to the employees at
all.
"Heller was never permitted to keep any cash tips she received from
customers, and no tips were ever distributed by management to her
or any other hourly employees," the class action lawsuit states.
The total amount of tips taken by management would be in the range
of $350 and $600 each day, according to the class action lawsuit,
which calculated that, between October 2020 and October 2021,
managers confiscated approximately $126,000 in tips.
Heller says she has since learned that Curaleaf's managers finally
stopped confiscating all the tips in January, and now provide them
to their hourly employees, whom she says receive approximately $60
to $100 in tips each week.
Heller claims Curaleaf is in violation of the Fair Labor Standards
Act and the Illinois Wage Payment and Collection Act. She is
demanding a jury trial and requesting statutory damages for herself
and all class members.
Heller wants to represent a class of non-exempt Curaleaf employees
who worked at Chicago locations and who were not fully compensated
for all the hours that they worked, due to the alleged tip theft.
A separate class action lawsuit was filed against Curaleaf in
January over allegations the company sold products falsely marketed
as being CBD only that, in reality, contained THC and caused
customers to get sick.
The plaintiff is represented by Matthew Fletcher and Max Barack of
Garfinkel Group, LLC.
The Curaleaf Holdings Withheld Tips Class Action Lawsuit is Heller
v. Curaleaf Holdings, Inc., Case No. 1:22-cv-01617, in the U.S.
District Court for the Northern District of Illinois. [GN]
DAILY CONCEPTS: Mejia Files ADA Suit in S.D. New York
-----------------------------------------------------
A class action lawsuit has been filed against Daily Concepts, LLC.
The case is styled as Jose Mejia, individually, and on behalf of
all others similarly situated v. Daily Concepts, LLC, Case No.
1:22-cv-02816 (S.D.N.Y., April 5, 2022).
The lawsuit is brought over alleged violation of the Americans with
Disabilities Act.
Daily Concepts -- https://dailyconcepts.com/ -- offers functional
bath scrubbers to cleanse body and mind.[BN]
The Plaintiff is represented by:
Edward Y. Kroub, Esq.
MIZRAHI KROUB LLP
200 Vesey Street
New York, NY 10281
Phone: (212) 595-6200
Email: ekroub@mizrahikroub.com
DEBBIE DOES: Denson Suit Seeks Overtime Pay Under FLSA
------------------------------------------------------
Cheyenne Denson, Hannah White, Joel White, and Jeffrey Flagg,
individually and on behalf of all other similarly situated current
and former employees v. Debbie Does Doberge, LLC, Charles Mary IV,
Charlotte McGehee, and Faith Simmons, Case No.
2:22-cv-00864-NJB-KWR (E.D. La., April 1, 2022) seeks overtime pay
under the the Fair Labor Standards Act.
The Plaintiffs are essential workers who worked during the COVID-19
pandemic to reopen and operate the cake shops and restaurants
operated by Defendants. Upon returning to work during the COVID-19
pandemic, the Defendants lowered their salaries below the FLSA
salary basis cut off, required them to work overtime and yet,
refused to pay them for that overtime.
The Plaintiffs now bring this action because the Defendants
allegedly failed to pay them any wages for any overtime worked. The
Plaintiffs bring this action on behalf of themselves and other
similarly situated current and former employees of Defendants and
who elect to opt-in to this action pursuant to the FLSA's
collective action provision, 29 U.S.C. section 216(b). The
Plaintiffs also bring this action on behalf of themselves and all
similarly situated current and former employees who elect to opt-in
to this action to remedy Defendants’ violations of Louisiana
state law, including, but not limited to, the Louisiana Wage
Payment Act (LWPA) and the Louisiana Unfair Trade Practices Act.
Further, after Plaintiffs were forced out of their positions,
Defendants failed to provide notice of their right to employer paid
COBRA coverage under the American Rescue Plan Act, causing them
even further economic harm.
DDD owns and operates Bakery Bar located at 1179 Annunciation
Street in New Orleans, Louisiana 70130 and Debbie on the Levee
located at 2118 Reverend Richard Wilson Drive in Kenner, Louisiana
70062.[BN]
The Plaintiffs are represented by:
Casey Rose Denson, Esq.
Mercedes Townsend, Esq.
CASEY DENSON LAW, LLC
4601 Dryades Street
New Orleans, LA 70115
Telephone: (504) 224-0110
Facsimile: (504) 534-3380
E-mail: cdenson@caseydensonlaw.com
mtownsend@caseydensonlaw.com
DELL TECHNOLOGIES: Trial in Dell Class V Litigation to Begin Dec. 5
-------------------------------------------------------------------
Trial is scheduled to begin on December 5, 2022, in the
consolidated class action lawsuit captioned In Re Dell Class V
Litigation (Consol. C.A. No. 2018-0816-JTL), Dell Technologies Inc.
disclosed in its Form 10-K Report for the fiscal year ended January
28, 2022, filed with the Securities and Exchange Commission on
March 24, 2022.
On December 28, 2018, the company completed a transaction, the
Class V transaction, in which it paid USD14 billion in cash and
issued 149,387,617 shares of its Class C Common Stock to holders of
its Class V Common Stock in exchange for all outstanding shares of
Class V Common Stock. As a result of the Class V transaction, the
tracking stock feature of the company's capital structure
associated with the Class V Common Stock was terminated.
In November 2018, four purported stockholders brought putative
class action complaints arising out of the Class V transaction. The
actions were captioned Hallandale Beach Police and Fire Retirement
Plan v. Michael Dell et al. (Civil Action No. 2018-0816-JTL),
Howard Karp v. Michael Dell et al. (Civil Action No.
2019-0032-JTL), Miramar Police Officers' Retirement Plan v. Michael
Dell et al. (Civil Action No. 2019-0049-JTL), and Steamfitters
Local 449 Pension Plan v. Michael Dell et al. (Civil Action No.
2019-0115-JTL). The four actions were consolidated in the Delaware
Chancery Court into In Re Dell Class V Litigation (Consol. C.A. No.
2018-0816-JTL).
The suit currently names as defendants certain of the directors
serving on the board of directors at the time of the Class V
transaction, certain stockholders of the company, consisting of
Michael S. Dell and Silver Lake Group LLC and certain of its
affiliated funds, and Goldman Sachs & Co. LLC, which served as
financial advisor to the company in connection with the Class V
transaction.
In an amended complaint filed in August 2019, the plaintiffs
generally alleged that the director and stockholder defendants
breached their fiduciary duties under Delaware law to the former
holders of Class V Common Stock in connection with the Class V
transaction by allegedly causing the company to enter into a
transaction that favored the interests of the controlling
stockholders at the expense of such former stockholders, thereby
depriving the former stockholders of the fair value of their
shares.
On August 20, 2021, the plaintiffs added Goldman Sachs as a
defendant and alleged that it had aided and abetted the alleged
primary violations. In the complaint, the plaintiffs seek, among
other remedies, a judicial declaration that the director and
stockholder defendants breached their fiduciary duties. The
plaintiffs also seek disgorgement of all profits, benefits, and
other compensation obtained by the defendants as a result of such
alleged conduct and an award of unspecified damages, fees, and
costs. The defendants filed a motion to dismiss the action in
September 2019. The court denied the motion in June 2020 and the
case is currently in the discovery phase.
Trial is scheduled to begin on December 5, 2022.
The company is not a defendant in this action but is subject to
director indemnification provisions under its certificate of
incorporation and bylaws, and is a party to agreements with the
defendants that contain indemnification obligations of the company,
conditioned on the satisfaction of the requirements set forth in
such agreements, relating to service as a director, ownership of
the company's securities, and provision of services, as
applicable.
Dell Technologies Inc. is an American multinational technology
company headquartered in Round Rock, Texas. It was formed as a
result of the September 2016 merger of Dell and EMC Corporation
(which later became Dell EMC). Dell's products include personal
computers, servers, smartphones, televisions, computer software,
computer security and network security, as well as information
security services.
DELL TECHNOLOGIES: Trial in Stockholders Litigation on July 6
-------------------------------------------------------------
Trial is scheduled to begin on July 6, 2022, in In re: Pivotal
Software, Inc. Stockholders Litigation (Civil Action No.
2020-0440-KSJM), Dell Technologies Inc. disclosed in its Form 10-K
Report for the fiscal year ended January 28, 2022, filed with the
Securities and Exchange Commission on March 24, 2022.
Two purported stockholders brought putative class action complaints
arising out of VMware, Inc.'s acquisition of Pivotal Software, Inc.
on December 30, 2019. The two actions were consolidated in the
Delaware Chancery Court into In re: Pivotal Software, Inc.
Stockholders Litigation (Civil Action No. 2020-0440-KSJM). The
complaint names as defendants the company, VMware, Inc., Michael S.
Dell, and certain officers of Pivotal.
The plaintiffs generally allege that the defendants breached their
fiduciary duties to the former holders of Pivotal Class A Common
Stock in connection with VMware, Inc.'s acquisition of Pivotal by
allegedly causing Pivotal to enter into a transaction that favored
the interests of Pivotal's controlling stockholders at the expense
of such former stockholders. The plaintiffs seek, among other
remedies, a judicial declaration that the defendants breached their
fiduciary duties and an award of damages, fees, and costs.
Trial is scheduled to begin on July 6, 2022.
Dell Technologies Inc. is an American multinational technology
company headquartered in Round Rock, Texas. It was formed as a
result of the September 2016 merger of Dell and EMC Corporation
(which later became Dell EMC). Dell's products include personal
computers, servers, smartphones, televisions, computer software,
computer security and network security, as well as information
security services.
DFA OF CALIFORNIA: Soto Files Suit in Cal. Super. Ct.
-----------------------------------------------------
A class action lawsuit has been filed against DFA of California, et
al. The case is styled as Maria C. Soto, individually and on behalf
of all others similarly situated v. DFA of California, Does 1 –
20, Safe Food Alliance, Case No. 34-2022-00317275-CU-OE-GDS (Cal.
Super. Ct., Sacramento Cty., March 23, 2022).
The case type is stated as "Other Employment - Civil Unlimited."
DFA of California -- https://safefoodalliance.com/ -- operates as a
non-profit trade association. The Company offers training and
consulting, food safety audits, analytical services to growers,
packers, processors, and food manufacturers.[BN]
The Plaintiff is represented by:
Jessica L. Campbell, Esq.
AEGIS LAW FIRM
9811 Irvine Center Dr., Ste. 100
Irvine, CA 92618
Phone: 949-379-6250
DIGITAL RECOGNITION: Court Grants in Part Bid to Dismiss Mata Suit
------------------------------------------------------------------
In the case, GUILLERMO MATA, individually and on behalf of all
others similarly situated, Plaintiff v. DIGITAL RECOGNITION
NETWORK, INC., a Delaware corporation, Defendant, Case No.
21-CV-1485 JLS (BLM) (S.D. Cal.), Judge Janis L. Sammartino of the
U.S. District Court for the Southern District of California granted
in part and denied in part the Defendant's Motion to Dismiss and
dismissed the Plaintiff's complaint for lack of standing.
I. Background
The Defendant is a corporation organized and existing under the
laws of Delaware with its principal place of business located in
Fort Worth, Texas. It operates an automated or automatic license
plate reader ("ALPR") system within the state of California that
collects photographs of vehicles as well as their license plate
numbers. The Defendant uses vehicle-mounted ALPR cameras to collect
these photographs, and additionally records the camera's location
and the date and time of the photograph. It uses this data "to
provide its customers real-time vehicle location data."
The Defendant's website states that "its platform can build a full,
historical story on a vehicle and owner. Its realternative data --
license plate recognition data paired with our powerful, exclusive
analytics platform -- helps build the full vehicle stories our
users need to solve their portfolio management, collections,
recovery and fraud challenges." Because the Defendant operates and
uses an ALPR system within California, Plaintiff alleges that it
must comply with California Civil Code Sections 1798.90.5 et seq.
(the "ALPR statute"), but that it has failed to do so.
Specifically, the Plaintiff pleads that the Defendant "deliberately
collected the Plaintiff's and the putative Class's ALPR information
and disclosed that information to its 1,000 clients allowing them
to identify locations visited by the Plaintiff and each putative
Class member's vehicles." He alleges that the Defendant's conduct
violates certain notice, privacy, security, and proper-use
requirements in the ALPR statute. He further claims that the
Defendant "tracked his vehicle, thus gaining access to his home and
work address and other sensitive information such as the time he
typically leaves and comes home and where he likes to spend his
free time," thereby "disparaging the privacy rights of California
citizens," including the Plaintiff.
The Plaintiff initiated the putative class action on May 26, 2021,
in the Superior Court of the State of California for the County of
San Diego, asserting a single cause of action against Defendant for
violation of the ALPR statute. On Aug. 8, 2021, the Defendant
removed to this District based on diversity jurisdiction.
Presently before the Court is Defendant Digital Recognition
Network, Inc.'s ("Defendant" or "DRN") Motion to Dismiss. The
Plaintiff has filed an Opposition to, and the Defendant has filed a
Reply in support of, the Motion. The Court took the matter under
submission without oral argument pursuant to Civil Local Rule
7.1(d)(1).
II. Discussion
A. Request to Consider Materials Incorporated by Reference
As an initial matter, the Plaintiff's Opposition makes a passing
request that the Court takes judicial notice of the Defendant's
website.
Judge Sammartino holds that the Plaintiff's claim "necessarily
depends on the Defendant's Website and that his Complaint "refers
extensively" to the Defendant's Website; thus, the Website is
incorporated by reference into the Complaint. Indeed, the Complaint
not only "mentions the existence" of the Website, but quotes
portions of it throughout. Further, the bulk of the Plaintiff's
allegations revolve around the alleged failure of Defendant's
policy, posted on the Website, to adhere to the requirements of the
ALPR statute. The Defendant does not object to the Plaintiff's
request, but rather also refers extensively to its Website in its
briefing on the Motion. Accordingly, Judge Sammartino granted the
Plaintiff's request to find the Defendant's Website incorporated by
reference into the Complaint.
B. Motion to Dismiss and/or Strike
The Plaintiff's sole cause of action asserts that the Defendant
violates the ALPR statute. He alleges that DRN is an "ALPR
operator" as defined by the ALPR statute because it "operates an
ALPR system." Additionally, DRN is an "ALPR end-user" because it
"accesses or uses an ALPR system."
The Plaintiff contends that DRN has failed to comply with the ALPR
statute's Notice, Privacy, Security, and Proper Use Requirements,
and that he and the Class have been harmed by these violations
"because their private and sensitive personal information has been
improperly collected and used without their notice or consent."
The Defendant argues that the Plaintiff fails to state a claim
because he fails to allege sufficient plausible facts to establish
that he has suffered any actionable harm as a result of a violation
of the ALPR statute. It further seeks to dismiss or strike the
Plaintiff's claim for punitive damages for failure to allege
sufficiently egregious conduct.
1. Sufficiency of the Complaint's Allegations
a. Standing
Judge Sammartino holds that as the allegations of the Complaint
make clear, the purported harm to the Plaintiff's privacy interests
relies heavily on speculation; thus, any harm appears not to be
"actual or imminent," but rather "conjectural or hypothetical."
Thus, although he has listed various possibilities as to how the
Defendant's data theoretically could be misused, the Plaintiff
fails to allege that any of these eventualities have occurred or
are likely to occur.
Judge Sammartino finds that the Plaintiff has not adequately
alleged standing and thus dismisses his Plaintiff's Complaint.
Nonetheless, because she finds that the Plaintiff could allege
facts in an amended complaint to establish standing and solidify
the Court's jurisdiction, she finds that remand is not required at
this time.
b. The Notice Requirement
The Plaintiff alleges that the "Defendant's conduct violates the
Notice Requirement under Cal. Civ. Code Section 1798.90.51(b)(1) &
1798.90.53(b)(1) because the company does not make a meaningful
usage and/or privacy policy available to the public, nor does it
conspicuously post any information about usage and/or privacy on
its website."
The Defendant argues that the ALPR statute does not contain a
provision requiring it "to individually provide notice to or obtain
consent from anyone before photographing vehicle license plates in
public spaces. Indeed, the terms 'notice' and 'consent' appear
nowhere in the ALPR statute."
Having found the Website to be incorporated by reference into the
Complaint, Judge Sammartino finds, subject to the standing
deficiency noted, that the Complaint plausibly alleges a claim for
violation of the Notice Requirement. Although the Defendant has a
link to its "California ALPR Policy" on its homepage, the link
appears in small words at the very bottom of its website. One must
scroll all the way to the bottom, and accept a pop-up notification
about cookies, to even see the link. One plausibly could infer that
this is not "posted conspicuously" as required by the ALPR statute.
Accordingly, Judge Sammartino denied the Defendant's Motion on this
ground.
c. The Privacy, Security, and Proper Use Requirements
The Plaintiff alleges that Defendant violates the Security
Requirement "because it expressly disclaims the highly sensitive
nature and serious privacy implications of its ALPR data, and as a
result fails to conduct the security procedures and practices
reasonably necessary to protect such sensitive information from
unauthorized access, destruction, use, modification, or
disclosure." Finally, he pleads that ALPR operators must "require
that ALPR information only be used for the authorized purposes
described in the usage and privacy policy," but the Defendant
violates this Proper Use Requirement by "allowing, and indeed
encouraging its customers to use its ALPR system for the
unauthorized purpose of tracking and locating individuals."
The Defendant argues that the Plaintiff fails to allege an
actionable violation of the ALPR statute because he does not
plausibly allege: (1) "that DRN actually failed to maintain
reasonable security procedures and practices," (2) "that the usage
and privacy policy does not disclose the information required by
the statute," (3) that "any unauthorized access to DRN's ALPR data
has ever occurred," or (4) "that DRN fails to limit access to its
ALPR data to the 'authorized purposes' described in its usage and
privacy policy." Further, the Defendant argues that the ALPR
statute does not mandate that its security procedures be set forth
in its published usage and privacy policy.
Judge Sammartino finds that the Complaint at present fails to
adequately plead any violation of the ALPR statute's Privacy,
Security, or Proper Use Requirements. Similarly, the Plaintiff
offers no facts to support his bald assertion that the Defendant
has not implemented reasonable security procedures and practices
necessary to protect its ALPR data. Accordingly, the threadbare
allegations of the Complaint and the unfounded inferences the
Plaintiff invites the Court to draw, are inadequate to state a
claim.
Because the Plaintiff has failed to allege specific and plausible
facts to support his broad and unsubstantiated claim that the
Defendant has violated the Privacy, Security or Proper Use
Requirements of the ALPR statute, Judge Sammartino finds that the
Plaintiff fails to plead a violation of those requirements and
granted the Defendant's Motion on these grounds.
2. Punitive Damages Request
The Plaintiff requests "an award of liquidated damages, punitive
damages, costs, and attorneys' fees" for the Defendant's alleged
violations of the ALPR Statute. The Defendant argues that the
Plaintiff's request for punitive damages should be stricken and/or
dismissed because the Plaintiff has failed to plead "any facts that
would establish entitlement to punitive damages." The Plaintiff
counters that, under the ALPR statute, punitive damages may be
awarded upon a lesser showing: "Proof of willful or reckless
disregard of the law."
Judge Sammartino holds that a growing number of district courts
have concluded that Rule 12(b)(6) is generally inapplicable to
damage prayers. Nor does he find that the Defendant establishes
that the Plaintiff's prayer for punitive damages is "redundant,
immaterial, impertinent, or scandalous matter" properly stricken
under Rule 12(f). Rather, she says, the Plaintiff's request for
punitive damages goes directly to the relief to which he may be
entitled, assuming he can establish standing and a violation of the
ALPR statute. Accordingly, striking the Plaintiff's claim for
punitive damages would be improper at this stage and Judge
Sammartino denied the Defendant's request.
III. Conclusion
In light of the foregoing, Judge Sammartino granted in part and
denied in part the Defendant's Motion to Dismiss and dismissed the
Plaintiff's Complaint for lack of standing. Because she finds it is
possible the Plaintiff could amend his Complaint to cure the
deficiencies noted, however, said dismissal is without prejudice.
The Plaintiff may file an amended complaint within 30 days of the
date on which the Order is electronically docketed. Should the
Plaintiff elect to file an amended complaint, it must cure the
deficiencies noted herein and must be complete in itself without
reference to the Plaintiff's prior Complaint. Should he fail to
file an amended complaint within 30 days of the date on which the
Order is electronically docketed, the Court will enter a final
order dismissing this civil action based on the Plaintiff's failure
to prosecute in compliance with a court order requiring amendment.
A full-text copy of the Court's March 25, 2022 Order is available
at https://tinyurl.com/2kn5jbky from Leagle.com.
DOS TOROS: Faces Consumer Class Action Over Deceptive Claims
------------------------------------------------------------
A new class action lawsuit has been brought against Dos Toros, a
restaurant chain headquartered in Manhattan. Lead plaintiff Lauren
Prescott alleges that Dos Toros is in violation of state consumer
protection laws because of the company's deceptive claims that its
pork and chicken products are "naturally" and "humanely" raised.
The complaint contends that Dos Toros uses pork and chicken from
suppliers that raise animals in unnatural and inhumane industrial
facilities where animals have no access to the outdoors. The action
was filed Thursday, March 24, on behalf of Prescott by Richman Law
& Policy in U.S. District Court for the Southern District of New
York. Prescott is seeking the court's approval to represent a class
of consumers who purchased Dos Toros' pork or chicken products
based on the "naturally" and "humanely" raised marketing.
The lawsuit alleges that Dos Toros' in-store signage prominently
advertises its chicken and pork as being "naturally and humanely
raised" and "100% naturally raised." The suit further alleges that,
despite these representations, Dos Toros actually sources chicken
and pork from indoor industrial facilities where animals are
routinely raised and slaughtered in inhumane conditions of extreme
confinement that prevent the expression of their natural
behaviors.
The 23-page complaint alleges that inspection reports from the U.S.
Department of Agriculture detail the extreme inhumane treatment of
animals raised by Dos Toros' suppliers, including pigs being
deliberately hit by workers and chickens being suffocated and
boiled alive.
The lawsuit alleges that Dos Toros knows that American consumers
increasingly and consciously seek out, and will pay more for,
animal products marketed as "naturally" and "humanely" sourced. A
2015 survey found that 84% of consumers believe it is important to
improve living conditions for farmed animals. The complaint also
cites to studies showing that consumers believe that animal
products marketed as "naturally raised," and "humanely raised" come
from animals who had access to the outdoors.
Contact Information:
https://www.richmanlawpolicy.com/ [GN]
DOTTED ZEBRA: Mejia Files ADA Suit in S.D. New York
---------------------------------------------------
A class action lawsuit has been filed against Dotted Zebra
Consulting LLC. The case is styled as Jose Mejia, individually, and
on behalf of all others similarly situated v. Dotted Zebra
Consulting LLC, Case No. 1:22-cv-02818 (S.D.N.Y., April 5, 2022).
The lawsuit is brought over alleged violation of the Americans with
Disabilities Act.
Dotted Zebra -- https://www.dottedzebra.com/ -- offers a skincare
regime with an exciting range of unique scents, colours, and
textures.[BN]
The Plaintiff is represented by:
Edward Y. Kroub, Esq.
MIZRAHI KROUB LLP
200 Vesey Street
New York, NY 10281
Phone: (212) 595-6200
Email: ekroub@mizrahikroub.com
ELECTRIC LAST: Labaton Sucharow Files Securities Class Action
-------------------------------------------------------------
Labaton Sucharow LLP ("Labaton Sucharow") disclosed that on April
4, 2022, it filed a securities class action lawsuit on behalf of
its client Pierre Fontaine against Electric Last Mile Solutions,
Inc. and its predecessor company Forum Merger III Corp. ("ELMS,"
"FIIU," or the "Company") (NASDAQ: ELMS, ELMSW, FIII, FIIIU,
FIIIW), and certain of its executives (collectively, "Defendants").
The action, captioned Fontaine v. Electric Last Mile Solutions,
Inc., No. 22-cv-1902 (D.N.J.), asserts claims under Sections 10(b)
and 20(a) of the Securities Exchange Act of 1934, and U.S.
Securities and Exchange Commission ("SEC") Rule 10b-5 promulgated
thereunder, on behalf of all persons or entities that purchased or
otherwise acquired ELMS and/or FIIU securities between November 12,
2020 and February 1, 2022, inclusive (the "Class Period").
The Complaint expands the class period asserted in the action
against ELMS captioned Hacker v. Electric Last Mile Solutions, Inc.
et al., No. 2:22-cv-00545 (D.N.J.) (" Hacker Action"). Pursuant to
the notice published on February 3, 2022 in connection with the
filing of the Hacker Action, as required by the Private Securities
Litigation Reform Act of 1995, investors wishing to serve as Lead
Plaintiff in the securities actions pending against ELMS are
required to file a motion for appointment as Lead Plaintiff, no
later than 60 days from the February 3, 2022 notice (or no later
than April 4, 2022).
According to the lawsuit, Defendants throughout the Class Period
made false and/or misleading statements and/or failed to disclose:
(1) ELMS's previously issued financial statements were false and
unreliable; (2) ELMS's earlier reported financial statements would
need restatement; (3) certain ELMS executives and/or directors
purchased equity in the Company at substantial discounts to market
value without obtaining an independent valuation; (4) on November
25, 2021 (Thanksgiving), the Company's Board formed an independent
Special Committee to conduct an inquiry into certain sales of
equity securities made by and to individuals associated with the
Company; and (5) as a result, Defendants' statements about its
business, operations, and prospects, were materially false and
misleading and/or lacked a reasonable basis at all relevant times.
When the true details entered the market, the lawsuit claims that
investors suffered damages.
If you purchased or acquired ELMS and/or FIIU securities during the
Class Period, you are a member of the "Class" and may be able to
seek appointment as Lead Plaintiff. Lead Plaintiff motion papers
must be filed with the U.S. District Court for the District of New
Jersey no later than April 4, 2022. The Lead Plaintiff is a
court-appointed representative for absent members of the Class. You
do not need to seek appointment as Lead Plaintiff to share in any
Class recovery in this action. If you are a Class member and there
is a recovery for the Class, you can share in that recovery as an
absent Class member. You may retain counsel of your choice to
represent you in this action.
If you would like to consider serving as Lead Plaintiff or have any
questions about this lawsuit, you may contact Francis P.
McConville, Esq. of Labaton Sucharow, at (212) 907-0650, or via
email at fmcconville@labaton.com.
Fontaine is represented by Labaton Sucharow, which represents many
of the largest pension funds in the United States and
internationally with combined assets under management of more than
$2 trillion. Labaton Sucharow has been recognized for its
excellence by the courts and peers, and it is consistently ranked
in leading industry publications. Offices are located in New York,
NY, Wilmington, DE, and Washington, D.C. More information about
Labaton Sucharow is available at www.labaton.com.
CONTACT:
Francis P. McConville, Esq.
(212) 907-0650
fmcconville@labaton.com [GN]
EMBARK TECHNOLOGY: Faces Hardy Class Suit Over Stock Price Drop
---------------------------------------------------------------
TYLER HARDY, individually and on behalf of all others similarly
situated v. EMBARK TECHNOLOGY, INC. f/k/a NORTHERN GENESIS
ACQUISITION CORP. II, IAN ROBERTSON, KEN MANGET, ALEX RODRIGUES,
and RICHARD HAWWA, Case No. 3:22-cv-02090-JSC (N.D. Cal., April 1,
2022) is a federal securities class action on behalf of a class
consisting of all persons and entities other than the Defendants
that purchased or otherwise acquired Embark securities between
January 12, 2021 and January 5, 2022, both dates inclusive, seeking
to recover damages caused by the Defendants' violations of the
federal securities laws and to pursue remedies under Sections 10
10(b) and 20(a) of the Securities Exchange Act of 1934.
On November 10, 2021, the Company consummated a merger transaction
with Embark Trucks Inc., a Delaware corporation, among other
things, the Company changed its name from "Northern Genesis
Acquisition Corp. II" to "Embark Technology, Inc."
Throughout the Class Period, the Defendants allegedly 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 performed inadequate due
diligence into Legacy Embark
On January 6, 2022, The Bear Cave published a short report entitled
"Problems at Embark Technology (EMBK)" (the "Bear Cave Report").
The Bear Cave Report alleged, among other issues, "that Embark
appears to lack true economic substance" and that its "current
evaluation appears to be based on puffery rather than actual
substance", noting that "the company holds no patents, has only a
dozen or so test trucks, and may be more bark than bite."
On this news, Embark's stock price fell $1.37 per share, or 16.75%,
to close at $6.81 per share on January 6, 2022.
As a result of Defendants' alleged wrongful acts and omissions, and
the precipitous decline in the market value of the Company's
securities, the Plaintiff and other Class members have suffered
significant losses and damages.
The Plaintiff acquired Embark securities at artificially inflated
prices during the Class Period and was damaged upon the revelation
of the alleged corrective disclosures.
Embark develops self-driving software solutions for the trucking
industry in the U.S. The Company was originally a SPAC, also called
a blank-check company, which is a development stage company that
has no specific business plan or purpose or has indicated its
business plan is to engage in a merger or acquisition with an
unidentified company or companies, other entity, or person. The
Individual Defendants are officers of the company.[BN]
The Plaintiff is represented by:
Jennifer Pafiti, Esq.
Jeremy A. Lieberman, Esq.
J. Alexander Hood II, Esq.
POMERANTZ LLP
1100 Glendon Avenue, 15th Floor
Los Angeles, CA 90024
Telephone: (310) 405-7190
E-mail: jpafiti@pomlaw.com
jalieberman@pomlaw.com
ahood@pomlaw.com
EVERBRIDGE INC: Labaton Sucharow Files Securities Class Action
--------------------------------------------------------------
Labaton Sucharow LLP ("Labaton Sucharow") disclosed that on April
4, 2022, it filed a securities class action lawsuit, captioned
Sylebra Capital Partners Master Fund Ltd v. Everbridge, Inc., No.
2:22-cv-2249 (N.D. Cal.) (the "Action"), on behalf of its clients
Sylebra Capital Partners Master Fund Ltd, Sylebra Capital Parc
Master Fund, and Sylebra Capital Menlo Master Fund (together, the
"Sylebra Funds") against Everbridge, Inc. ("Everbridge" or the
"Company") and certain Everbridge officers and directors
(collectively, "Defendants"). The Action asserts claims under
Sections 10(b) and 20(a) of the Securities Exchange Act of 1934,
and SEC Rule 10b-5 promulgated thereunder, on behalf of all persons
or entities who purchased or otherwise acquired Everbridge common
stock between November 4, 2019 and February 24, 2022, both dates
inclusive (the "Class Period"), who were damaged thereby (the
"Class").
Everbridge is a software company that provides enterprise software
applications to automate and accelerate organizations' operational
response to "critical events" in order to keep people safe and
organizations running. These critical events include public safety
threats, information technology outages, cyber-attacks, product
recalls, and supply-chain interruptions. Shortly before and
throughout the Class Period, Everbridge engaged in a buying spree,
acquiring nine separate companies.
The Action alleges that, throughout the Class Period, Defendants
misled investors by: (1) failing to disclose that Everbridge was
experiencing integration problems with respect to these
acquisitions; (2) using the revenues from these acquisitions to
mask increasingly stagnant organic growth; and (3) failing to
disclose that the COVID pandemic was having a material impact on
the size of the deals that Everbridge was able to obtain, with a
negative effect on the Company's revenue growth.
The truth regarding Everbridge's failed growth strategy was
partially revealed through a press release issued on December 9,
2021. On that date, the Company disclosed that Defendant David
Meredith had unexpectedly resigned as Everbridge's CEO. The Company
also provided 2022 revenue growth guidance of between 20-23%, well
below the expected baseline of 30%. On this news, Everbridge's
common stock price fell almost by half, a price decline of $52.37
per share, or 45.4 percent, to close at $63.00 per share on
December 10, 2021.
Then, on February 24, 2022, the full truth was revealed. On that
date, Everbridge announced its financial results for the fourth
quarter and full year 2021, as well as its guidance for the first
quarter and full year 2022. As to revenue, the Company guided only
20% growth in the first quarter of 2022 and a scant 15-17% growth
for the full year, even lower than the disappointing guidance
previously issued in December 2021.
Further, in the related earnings call that same day, the new
interim co-CEO, Vernon Irvin, disclosed for the first time, despite
prior representations to the contrary, that "these products and
businesses" obtained from Everbridge's buying binge "have created
incremental product line complexity that produce integration
challenges and have complicated our go-to-market efforts." He also
stated that Everbridge will pause engaging in any new M&A activity
to focus on product integration, as well as significantly
"simplify" and reduce its product offerings.
Defendant Patrick Brickley, the other interim co-CEO and CFO,
stated that the focus on product integration and simplification
would alone result in an approximate $17 million of revenue loss.
Brickley also disclosed that the decline in deal sizes "has been
exacerbated by lingering effects of COVID," and that it would
result in another $15 million reduction in revenues. On all this
news, Everbridge's common stock price fell another $15.68 per
share, or 33.9 percent, to close at $30.61 per share on February
25, 2022.
As a result of Defendants' wrongful acts and omissions, and the
precipitous decline in the market value of the Company's common
stock, Plaintiff and other Class members have suffered significant
losses and damages.
If you purchased Everbridge common stock during the Class Period
and were damaged thereby, you are a member of the "Class" and may
be able to seek appointment as Lead Plaintiff. Lead Plaintiff
motion papers must be filed with the U.S. District Court for the
Northern District of California no later than June 3, 2022. The
Lead Plaintiff is a court-appointed representative for absent
members of the Class. You do not need to seek appointment as Lead
Plaintiff to share in any Class recovery in the Action. If you are
a Class member and there is a recovery for the Class, you can share
in that recovery as an absent Class member. You may retain counsel
of your choice to represent you in the Action.
If you would like to consider serving as Lead Plaintiff or have any
questions about this lawsuit, please contact David J. Schwartz,
Esq. of Labaton Sucharow, using the toll-free number (800)
321-0476, or via email at david@labaton.com.
The Sylebra Funds are represented by Labaton Sucharow, which
represents many of the largest pension funds in the United States
and internationally with combined assets under management of more
than $2 trillion. Labaton Sucharow has been recognized for its
excellence by the courts and peers, and it is consistently ranked
in leading industry publications. Offices are located in New York,
NY, Wilmington, DE, and Washington, D.C. More information about
Labaton Sucharow is available at www.labaton.com.
Contacts:
David J. Schwartz, Esq.
(800) 321-0476
david@labaton.com [GN]
EVERBRIDGE INC: Labaton Sucharow Reminds of June 3 Deadline
-----------------------------------------------------------
Labaton Sucharow LLP ("Labaton Sucharow") disclosed that on April
4, 2022, it filed a securities class action lawsuit, captioned
Sylebra Capital Partners Master Fund Ltd v. Everbridge, Inc., No.
2:22-cv-2249 (N.D. Cal.) (the "Action"), on behalf of its clients
Sylebra Capital Partners Master Fund Ltd, Sylebra Capital Parc
Master Fund, and Sylebra Capital Menlo Master Fund (together, the
"Sylebra Funds") against Everbridge, Inc. ("Everbridge" or the
"Company") and certain Everbridge officers and directors
(collectively, "Defendants"). The Action asserts claims under
Sections 10(b) and 20(a) of the Securities Exchange Act of 1934,
and SEC Rule 10b-5 promulgated thereunder, on behalf of all persons
or entities who purchased or otherwise acquired Everbridge common
stock between November 4, 2019 and February 24, 2022, both dates
inclusive (the "Class Period"), who were damaged thereby (the
"Class").
Everbridge is a software company that provides enterprise software
applications to automate and accelerate organizations' operational
response to "critical events" in order to keep people safe and
organizations running. These critical events include public safety
threats, information technology outages, cyber-attacks, product
recalls, and supply-chain interruptions. Shortly before and
throughout the Class Period, Everbridge engaged in a buying spree,
acquiring nine separate companies.
The Action alleges that, throughout the Class Period, Defendants
misled investors by: (1) failing to disclose that Everbridge was
experiencing integration problems with respect to these
acquisitions; (2) using the revenues from these acquisitions to
mask increasingly stagnant organic growth; and (3) failing to
disclose that the COVID pandemic was having a material impact on
the size of the deals that Everbridge was able to obtain, with a
negative effect on the Company's revenue growth.
The truth regarding Everbridge's failed growth strategy was
partially revealed through a press release issued on December 9,
2021. On that date, the Company disclosed that Defendant David
Meredith had unexpectedly resigned as Everbridge's CEO. The Company
also provided 2022 revenue growth guidance of between 20-23%, well
below the expected baseline of 30%. On this news, Everbridge's
common stock price fell almost by half, a price decline of $52.37
per share, or 45.4 percent, to close at $63.00 per share on
December 10, 2021.
Then, on February 24, 2022, the full truth was revealed. On that
date, Everbridge announced its financial results for the fourth
quarter and full year 2021, as well as its guidance for the first
quarter and full year 2022. As to revenue, the Company guided only
20% growth in the first quarter of 2022 and a scant 15-17% growth
for the full year, even lower than the disappointing guidance
previously issued in December 2021.
Further, in the related earnings call that same day, the new
interim co-CEO, Vernon Irvin, disclosed for the first time, despite
prior representations to the contrary, that "these products and
businesses" obtained from Everbridge's buying binge "have created
incremental product line complexity that produce integration
challenges and have complicated our go-to-market efforts." He also
stated that Everbridge will pause engaging in any new M&A activity
to focus on product integration, as well as significantly
"simplify" and reduce its product offerings.
Defendant Patrick Brickley, the other interim co-CEO and CFO,
stated that the focus on product integration and simplification
would alone result in an approximate $17 million of revenue loss.
Brickley also disclosed that the decline in deal sizes "has been
exacerbated by lingering effects of COVID," and that it would
result in another $15 million reduction in revenues. On all this
news, Everbridge's common stock price fell another $15.68 per
share, or 33.9 percent, to close at $30.61 per share on February
25, 2022.
As a result of Defendants' wrongful acts and omissions, and the
precipitous decline in the market value of the Company's common
stock, Plaintiff and other Class members have suffered significant
losses and damages.
If you purchased Everbridge common stock during the Class Period
and were damaged thereby, you are a member of the "Class" and may
be able to seek appointment as Lead Plaintiff. Lead Plaintiff
motion papers must be filed with the U.S. District Court for the
Northern District of California no later than June 3, 2022. The
Lead Plaintiff is a court-appointed representative for absent
members of the Class. You do not need to seek appointment as Lead
Plaintiff to share in any Class recovery in the Action. If you are
a Class member and there is a recovery for the Class, you can share
in that recovery as an absent Class member. You may retain counsel
of your choice to represent you in the Action.
If you would like to consider serving as Lead Plaintiff or have any
questions about this lawsuit, please contact David J. Schwartz,
Esq. of Labaton Sucharow, using the toll-free number (800)
321-0476, or via email at david@labaton.com.
The Sylebra Funds are represented by Labaton Sucharow, which
represents many of the largest pension funds in the United States
and internationally with combined assets under management of more
than $2 trillion. Labaton Sucharow has been recognized for its
excellence by the courts and peers, and it is consistently ranked
in leading industry publications. Offices are located in New York,
NY, Wilmington, DE, and Washington, D.C. More information about
Labaton Sucharow is available at www.labaton.com.
You can view a copy of the complaint here.
Contacts
David J. Schwartz, Esq.
(800) 321-0476
david@labaton.com [GN]
EXICURE INC: Sim Shareholder Suit Ongoing
-----------------------------------------
Exicure, Inc. 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 on March 8, 2022, a Yixin Sim
filed a shareholder derivative lawsuit in the same court against
the same individuals, captioned "Sim v. Giljohann, et al.," Case
No. 1:22-cv-01217.
Suit alleges that the defendants caused the company to issue false
and/or misleading statements in its 2021 proxy statement regarding
risk oversight, code of conduct, clinical program and compensation
matters, among other things, in violation of federal securities
law, and committed breaches of fiduciary duties owed under state
law.
Exicure is an early-stage biotechnology company developing nucleic
acid therapies targeting ribonucleic acid against validated targets
to neurological disorders and hair loss.
EXPRESS INC: Summary Judgment Bids Filed in Chacon Labor Class Suit
-------------------------------------------------------------------
Motions for summary judgment were filed on February 28, 2022, in
the lawsuit filed by Mr. Jorge Chacon in California alleging labor
law violations, Express 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 24, 2022.
On January 29, 2019, Mr. Jorge Chacon filed a second representative
action in the Superior Court for the State of California for the
County of Orange alleging violations of California state wages and
hour statutes and other labor standard violations.
The action was removed to federal court by the company and is now
pending in the United States District Court for the Central
District of California. The lawsuit seeks unspecified monetary
damages and attorneys' fees.
In June 2021, a portion of Mr. Chacon's claims in this action were
certified as a class action. Plaintiff and the company both filed
Motions for Summary Judgement on February 28, 2022. No trial date
has been set.
Express, Inc. is an American fashion retailer that caters mainly to
young men and women. The company is headquartered in Columbus,
Ohio. Express operated 500+ stores in the United States, Puerto
Rico, Mexico, Costa Rica, Panama, El Salvador and Guatemala.
FARCHITECTURE BB: Mejia Files ADA Suit in S.D. New York
-------------------------------------------------------
A class action lawsuit has been filed against Farchitecture BB,
LLC. The case is styled as Jose Mejia, individually, and on behalf
of all others similarly situated v. Farchitecture BB, LLC, Case No.
1:22-cv-02829 (S.D.N.Y., April 5, 2022).
The lawsuit is brought over alleged violation of the Americans with
Disabilities Act.
Farchitecture BB doing business as Coolhaus -- https://cool.haus/
-- is an American ice cream company based in Los Angeles,
California, founded in 2009 by Natasha Case and Freya Estreller on
the principle of using food to spark interest in architecture.[BN]
The Plaintiff is represented by:
Edward Y. Kroub, Esq.
MIZRAHI KROUB LLP
200 Vesey Street
New York, NY 10281
Phone: (212) 595-6200
Email: ekroub@mizrahikroub.com
FEDEX CORP: Overpeck Loses Bid to Certify Class and Bid to Seal
---------------------------------------------------------------
In the case, HERMAN OVERPECK, et al., Plaintiffs v. FEDEX
CORPORATION, et al., Defendants, Case No. 18-cv-07553-PJH (N.D.
Cal.), Judge Phyllis J. Hamilton of the U.S. District Court for the
Northern District of California denied the Plaintiffs' motion for
class certification and their motion to seal.
I. Background
The lawsuit is a putative class action brought by current or former
long-haul and local delivery drivers who provided transportation
and delivery services in California for defendants FedEx Ground
Package System, Inc. ("FedEx Ground") and FedEx Corp.
(collectively, "the FedEx defendants" or "FedEx"). The Plaintiffs
allege that FedEx's labor force was previously made up of
individual drivers that FedEx hired directly and labeled as
independent contractors. They allege that, following litigation
challenging the "independent contractor" classification, FedEx then
pivoted to an "independent service provider" ("ISP") model. The
Plaintiffs allege that the ISPs are "little more than job placement
outfits," and that the ISP model is "just a continuation of FedEx's
continuing practice of misrepresenting and obscuring the true
relationship between FedEx and its drivers: That of
employer-employee."
On Dec. 14, 2018, Plaintiffs Herman Overpeck and Kevin Sterling
filed a putative class action against FedEx. On Jan. 29, 2020, the
Plaintiffs filed the operative First Amended Complaint ("FAC"),
which added a new named Plaintiff, Shannon Sobaszkiewicz, and
alleged 12 causes of action: (1) Common Law Fraudulent
Misrepresentation; (2) Common Law Conversion; (3) Failure to Pay
for All Hours Worked, Cal. Labor Code Sections 201, 202, 204,
221-23, and 226.2; (4) Failure to Provide Meal Periods, Cal. Labor
Code Sections 226.7, 512 and 8 Cal. Code Regs. Section 11090; (5)
Failure to Provide Rest Periods, Cal. Labor Code Section 226.7 and
8 Cal. Code Regs. Section 11090; (6) Failure to Pay Minimum Wages,
Cal. Labor Code Sections 1182.11-82.12, 1194, and 1197-97.1; (7)
Failure to Pay Overtime Compensation, Cal. Labor Code Sections 510,
515.5, 1194, and 1198 et seq.; (8) Failure to Keep Accurate Payroll
Records, Cal. Labor Code Sections 1174-74.5; (9) Failure to Furnish
Accurate Wage Statements, Cal. Labor Code Section 226; (10) Waiting
Time Penalties, Cal. Labor Code Sections 201-03; (11) Unfair
Competition and Unlawful Business Practices, Cal. Bus. & Prof. Code
Section(12) Private Attorneys General Act violations, Cal. Labor
Code Section 2698, et seq.
The FAC also states that Mr. Overpeck is now "not a class
representative," but still "a class member." Thus, the two class
representatives are now Mr. Sterling and Ms. Sobaszkiewicz.
Sterling is a "pickup and delivery" driver, which means he does
short-distance deliveries from FedEx to customers. Sobaszkiewicz is
a "linehaul" driver, which means she delivers packages long
distances from one FedEx "hub" to another.
The Plaintiffs' motion states that they seek certification on only
a subset of claims, namely: (1) the first and second causes of
action for common law misrepresentation and conversion arising from
the exclusion of the Plaintiffs and the class from the health and
retirement employee benefits administered by FedEx; (2) the fourth
and fifth causes of action for failure to provide off-duty meal and
rest periods, arising out of the actions or inactions attributable
to FedEx; (3) the ninth cause of action for violation of Cal. Labor
Code Section 226(a)(8) arising out of FedEx's policy and practice
of prohibiting any FedEx entity from being identified as an
employer or joint employer on the drivers' wage statements; and (4)
the eleventh cause of action for violation of Cal. Bus. & Prof.
Code Section 17200, predicated on the alleged violations.
In effect, that means there are three categories of claims to be
examined on this motion: (1) the health/retirement benefit-related
claims, based on either a misrepresentation or conversion theory,
(2) the meal/rest break claims, and (3) the inaccurate wage
statement claim.
The Plaintiffs seek to certify the following class: "All
individuals transporting packages for FedEx Ground Package System,
Inc. (FedEx Ground) in California, pursuant to an Independent
Service Provider Agreement (ISPA) and/or Transportation Service
Provider Agreement (TSPA) between FedEx Ground and a Contract
Service Provider (CSP) and while using a vehicle that is operated
by FedEx Ground under Department of Transportation (DOT)
regulations, at any time from Dec. 14, 2014 until the date class
notice is provided under Fed. R. Civ. P. 23(c)(2)."
The Plaintiffs also seek to certify the following two subclasses:
a. Pickup and Delivery (P&D) subclass: All individuals who
have performed pickup and delivery services of the FedEx Ground
packages in California, while based out of a station or hub of
FedEx Ground in California, at any time from December 14, 2014
until the date class notice is provided under Fed. R. Civ. P.
23(c)(2).
b. Linehaul subclass: All individuals who have performed
Linehaul transports of the FedEx Ground packages in California,
while based out of a hub or station of FedEx Ground in California,
at any time from December 14, 2014 until the resolution of this
action.
After briefing on plaintiffs' motion was complete, the court
directed the parties to file supplemental briefs regarding a recent
decision by another court in this district involving similar facts.
See Dkt. 334; see also Hinds v. FedEx Ground Package System, Inc.
et al., 2021 WL 4926980 (N.D. Cal. Aug. 18, 2021).
Also pending before the Court is a motion to seal filed by the
Plaintiffs.
The Plaintiffs' motion for class certification came on for hearing
before the Court on March 24, 2022.
II. Analysis
Before addressing the Rule 23 requirements, Judge Hamilton first
addresses several threshold issues raised by the parties.
1. Joint Employment
The parties offer extensive evidence on the merits of the joint
employment issue. However, for purposes of this motion, Judge
Hamilton need not definitively resolve the merits of the joint
employment issue, but rather need only address whether the joint
employment issue is suitable for class treatment under Rule 23.
2. Integrated Enterprise
As FedEx Corp. appears to acknowledge at least in part, the
"integrated enterprise" issue is a merits issue that is more
appropriate for resolution on a summary judgment motion, not on a
class certification motion. In fact, as the Plaintiffs point out,
it would be prejudicial for the court to rule on the merits of the
"integrated enterprise" issue without full merits discovery.
Accordingly, Judge Hamilton concludes that the "integrated
enterprise" issue is premature for resolution on this motion. As
mentioned, he uses the collective term "FedEx" in the Order only
for ease of use, rather than as a statement on the merits of the
"integrated enterprise" issue.
3. Rule 23 Requirements
Rule 23(a) requires that the Plaintiffs demonstrate numerosity,
commonality, typicality and adequacy of representation in order to
maintain a class. If all four prerequisites of Rule 23(a) are
satisfied, the Court then determines whether to certify the class
under one of the three subsections of Rule 23(b), pursuant to which
the named Plaintiffs must establish either 1) that there is a risk
of substantial prejudice from separate actions; or 2) that
declaratory or injunctive relief benefitting the class as a whole
would be appropriate; or 3) that common questions of law or fact
common to the class predominate and that a class action is superior
to other methods available for adjudicating the controversy at
issue.
Judge Hamilton holds that (i) the Plaintiffs have sufficiently
established numerosity under Rule 23(a)(1) because there are "a few
thousand ISP drivers within the state of California every year and
FedEx does not appear to challenge that the numerosity requirement
is met; (ii) the Plaintiffs have not met Rule 23(a)'s commonality
requirement as to their fraud and conversion claims and the
non-viability of their legal theory of relief also prevents them
from being able to meet the predominance requirement of Rule
23(b)(3); (iii) tthe need for the class members to show individual
injury prevents the Plaintiffs from meeting the predominance
requirement; (iv) FedEx has provided no basis for the conclusion
that Plaintiff Sterling's theory of relief is inconsistent with
that of the class; and (v) the Plaintiffs are permitted to seek
certification of claims which they believe to be the most suitable
for class treatment.
Judge Hamilton also finds that (i) the Plaintiffs cannot satisfy
Rule 23(b)(3)'s predominance requirement for the same reasons that
they cannot satisfy Rule 23(a)'s commonality requirement; (ii) the
need for multiple phases of trial, combined with the vagueness of
the Plaintiffs' trial plan, lead to the conclusion that the
Plaintiffs have not established superiority or manageability under
Rule 23(b)(3); and (iii) the Court is not to consider
ascertainability at the class certification stage.
4. Motion to Seal
The Plaintiffs have filed a motion to seal portions of its class
certification motion, along with certain exhibits designated as
confidential by FedEx. FedEx filed a supporting declaration arguing
that the material contains sensitive and confidential business
information.
Judge Hamilton concludes that the sealing request is overbroad and
supported with largely-boilerplate statements about the potential
harm of disclosure. In particular, FedEx's declaration filed in
support of sealing contains a list that simply recites the name of
each document, and then states in general terms that the document
contains FedEx's "confidential, proprietary, and trade secret
information regarding details of its business operations" and that
disclosure "would irreparably harm FedEx and would provide an
unfair competitive advantage to other marketplace participants if
released to the public."
The motion to seal is denied. The Plaintiffs will file an
unredacted copy of their motion for class certification on the
public docket. Because the Court need not rely on the exhibits for
which sealing is sought, those documents do not need to be filed
publicly on the docket.
III. Conclusion
For the reasons he stated, Judge Hamilton denied the Plaintiffs'
motion for class certification. Specifically, class certification
is denied as to the misrepresentation/conversion claims and
inaccurate wage statement claim due to lack of commonality and
predominance, denied as to the meal/rest break claim due to lack of
predominance, and denied as to the section 17200 claim because it
is dependent on the other asserted claims.
The Plaintiffs' motion to seal is denied. The Plaintiffs will file
an unredacted version of their motion for class certification on
the public docket within seven days of the Order.
As discussed at the hearing, the parties are directed to submit a
stipulation to allow amendment of the complaint for the limited
purpose of changing the Plaintiffs' names on the case caption. The
stipulation must be filed within 14 days of the date of the Order.
Finally, a case management conference is set for May 19, 2022, at
2:00 p.m.
A full-text copy of the Court's March 25, 2022 Order is available
at https://tinyurl.com/27cm47as from Leagle.com.
FIRST HORIZON BANK: Young Files ADA Suit in S.D. New York
---------------------------------------------------------
A class action lawsuit has been filed against First Horizon Bank.
The case is styled as Leshawn Young, on behalf of herself and all
other persons similarly situated v. First Horizon Bank, Case No.
1:22-cv-02809 (S.D.N.Y., April 5, 2022).
The lawsuit is brought over alleged violation of the Americans with
Disabilities Act.
First Horizon Bank -- https://www.firsthorizon.com/ -- formerly
First Tennessee Bank, is a financial services company based in
Memphis, Tennessee.[BN]
The Plaintiff is represented by:
Jeffrey Michael Gottlieb, Esq.
Michael A. LaBollita, Esq.
150 E. 18 St., Suite PHR
New York, NY 10003
Phone: (212) 228-9795
Fax: (212) 982-6284
Email: nyjg@aol.com
michael@gottlieb.legal
GOLDEN ISLES MEDICAL: Mejia Files ADA Suit in S.D. New York
-----------------------------------------------------------
A class action lawsuit has been filed against Golden Isles Medical,
Inc. The case is styled as Jose Mejia, individually, and on behalf
of all others similarly situated v. Golden Isles Medical, Inc.,
Case No. 1:22-cv-02820 (S.D.N.Y., April 5, 2022).
The lawsuit is brought over alleged violation of the Americans with
Disabilities Act.
Golden Isles Medical, Inc. is located in Saint Simons Island,
Georgia and is part of the Offices of Physicians Industry.[BN]
The Plaintiff is represented by:
Edward Y. Kroub, Esq.
MIZRAHI KROUB LLP
200 Vesey Street
New York, NY 10281
Phone: (212) 595-6200
Email: ekroub@mizrahikroub.com
GRAB HOLDINGS: Bronstein Gewirtz Reminds of May 16 Deadline
-----------------------------------------------------------
Bronstein, Gewirtz & Grossman, LLC reminds investors that a class
action lawsuit has been filed against the following publicly-traded
companies. You can review a copy of the Complaints by visiting the
links below or you may contact Peretz Bronstein, Esq. or his
Investor Relations Analyst, Yael Nathanson of Bronstein, Gewirtz &
Grossman, LLC at 212-697-6484. If you suffered a loss, you can
request that the Court appoint you as lead plaintiff. Your ability
to share in any recovery doesn't require that you serve as a lead
plaintiff. A lead plaintiff acts on behalf of all other class
members in directing the litigation. The lead plaintiff can select
a law firm of its choice. An investor's ability to share in any
potential future recovery is not dependent upon serving as lead
plaintiff.
Class Period: August 12, 2021 - March 1, 2022
Deadline: May 16, 2022
For more info: www.bgandg.com/celh.
The complaint alleges that throughout the Class Period, Defendants
made materially false and misleading statements regarding the
Company's business, operations, and compliance policies, and made
false and/or misleading statements and/or failed to disclose that:
(1) that the Company had improperly recorded expenses for non-cash
share-based compensation for second and third quarters of 2021; (2)
that, as a result, the Company's financial statements for those
periods would be restated, including to report a net loss for the
third quarter of 2021; (3) that there was a material weakness in
Celsius's internal controls over financial reporting; 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.
Grab Holdings Limited
Class Period: November 12, 2021 - March 3, 2022
Deadline: May 16, 2022
For more info: www.bgandg.com/grab.
The complaint alleges that throughout the Class Period, Defendants
made materially false and misleading statements regarding the
Company's business, operations, and compliance policies, and made
false and/or misleading statements and/or failed to disclose that:
(1) Grab's driver supply declined during the third quarter; (2) as
a result, Grab continued to invest heavily in driver and consumer
incentives to "preemptively recalibrate driver supply"; (3) as a
result, the Company's financial results would be adversely
impacted, including, among other things, a significant decline in
revenue; and (4) 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.
CONTACT:
Bronstein, Gewirtz & Grossman, LLC
Peretz Bronstein or Yael Nathanson
212-697-6484 | info@bgandg.com [GN]
GREENSKY LLC: Robinson+Cole Attorney Discusses 11th Cir. Ruling
---------------------------------------------------------------
Wystan Ackerman, Esq., of Robinson+Cole Class Actions Insider, in
an article for JDSupra, reports that federal district court orders
remanding cases to state court are generally not appealable, as
provided by 28 U.S.C. Sec. 1447(d). One exception to this is that
the Class Action Fairness Act (CAFA) allows a court of appeals, in
its discretion, to accept an appeal from an order granting or
denying a motion to remand a putative class action. 28 U.S.C. Sec.
1453(c). The courts of appeals can decline to hear an appeal under
Sec. 1453(c), and they are selective about hearing these appeals,
particularly because if they accept one, they have to rule within
60 days (subject to an extension of time if either agreed by the
parties or limited to ten days). A recent Eleventh Circuit decision
pointed out, however, that there are narrow circumstances where a
party can appeal as of right from a remand order in a putative
class action -- where the order is based on CAFA's "local
controversy" or "home state" exception.
In Simring v. Greensky, LLC, -- F.4th --, 2022 WL 894206 (11th Cir.
Mar. 28, 2022), the district court remanded a putative class action
based on the "local controversy" exception, which provides that a
district court shall decline jurisdiction where more than
two-thirds of the members of all proposed classes are citizens of
the state where suit is filed and certain other requirements are
satisfied (there is at least one in-state defendant from which
significant relief is sought and whose contact forms a significant
basis for the claims alleged, the principal injuries were incurred
in that state, and no other class action asserting the same or
similar factual allegations against any of the defendant has been
brought within the last three years). 28 U.S.C. Sec. 1332(d)(4). In
Simring, the district court interpreted the complaint as limiting
the proposed class to Florida citizens, and because the other
requirements for the "local controversy" exception applied,
remanded the case to state court.
The Eleventh Circuit held that the district court's decision was
appealable as of right because "CAFA's local controversy exception
does not implicate subject matter jurisdiction" and thus 28 U.S.C.
Section 1447(c) and (d), which generally prohibit appeals of remand
orders, were not applicable. Rather, "the local controversy
exception is 'akin' to abstention," a basis for remand that is
appealable, "because it requires courts to decline jurisdiction
that otherwise exists."
The Eleventh Circuit went on to reverse the district court's order
because the class definition was not limited to Florida citizens,
despite the fact that other allegations in the complaint indicated
that suit was being brought "on behalf of all other Floridians
similarly situated." The plaintiff had the burden of proof on the
applicability of the local controversy exception, and did not
present any evidence of the citizenship of the putative class
members.
The key point here for class action practitioners is that there are
circumstances where a remand order is appealable as of right under
CAFA. Where that is the case, you would not want to file a petition
for permission to appeal, which could be denied for any number of
reasons. This decision is also significant in emphasizing that the
definition of the class, rather than other allegations in the
complaint, may control the analysis of whether the local
controversy (or home state) exception applies. [GN]
GRUBHUB INC: Must Face Class Action Over Pricing Rules
------------------------------------------------------
Mike Pomranz, writing for Food & Wine, reports that the major
restaurant delivery brands Grubhub, Uber Eats, and its subsidiary
Postmates will have to face a proposed class action lawsuit
alleging that the companies' practices have driven up the price of
restaurant food after a federal judge refused to dismiss the case.
The lawsuit, originally filed in 2020, claims that by forcing
restaurants into "no-price competition clauses," major delivery
services are inflating the price of ordering from the restaurants
they work with since these clauses prevent restaurants from
offering their food cheaper anywhere else, even directly from the
restaurant.
"Defendants charge restaurants fees ranging from 13.5 percent to 40
percent of revenues, even though the average restaurant's profits
range from 3 percent to 9 percent of revenues,"
Frank LLP, the law firm handling the suit, wrote on their website.
"All of this harms consumers and restaurants alike. Restaurants
have to charge consumers supra-competitive prices to those who do
not buy their meals through the delivery apps, so consumers are
driven to purchase meals through the apps. But because of
defendants' unjustifiably high fees, meals sold through the apps
are more expensive than they should be."
Grubhub, Uber Eats, and Postmates had asked for the lawsuit to be
dismissed, but U.S. District Judge Lewis Kaplan in Manhattan denied
that request, according to Bloomberg, writing that the suit
"alleges plausibly that restaurants cannot feasibly avoid doing
business" with these delivery companies and "that
restaurants—being foreclosed from lowering prices in the direct
markets to attract sales—have had no choice but to raise prices
in both the platform and direct markets."
In a comment sent to Bloomberg, a Grubhhub spokesperson stated that
the company is "disappointed in the decision and we will continue
to defend our business and the services we offer restaurants and
diners."
The lawsuit seeks damages for customers who purchased food directly
from restaurants contracted with these delivery services either for
delivery or dining in dating back to April of 2016. [GN]
HOMOLOGY MEDICINES: Pomerantz LLP Reminds of May 24 Deadline
------------------------------------------------------------
Pomerantz LLP on April 4 disclosed that a class action lawsuit has
been filed against Homology Medicines, Inc. 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
CONTACT:
Robert S. Willoughby
Pomerantz LLP
rswilloughby@pomlaw.com
888-476-6529 ext. 7980
URL: http://pomlaw.com[GN]
HUDSON RIVER FOODS: Mejia Files ADA Suit in S.D. New York
---------------------------------------------------------
A class action lawsuit has been filed against Hudson River Foods
Corporation. The case is styled as Jose Mejia, individually, and on
behalf of all others similarly situated v. Hudson River Foods
Corporation, Case No. 1:22-cv-02830-KPF (S.D.N.Y., April 5, 2022).
The lawsuit is brought over alleged violation of the Americans with
Disabilities Act.
Hudson River Foods -- https://hudsonriverfoods.com/ -- is a family
of brands creating healthier foods for healthier lifestyles.[BN]
The Plaintiff is represented by:
Edward Y. Kroub, Esq.
MIZRAHI KROUB LLP
200 Vesey Street
New York, NY 10281
Phone: (212) 595-6200
Email: ekroub@mizrahikroub.com
HYATT HOTELS: Court Grants in Part Bid to Dismiss Clark Class Suit
------------------------------------------------------------------
In the case captioned RAYMOND E. CLARK, BETTYJUNE CLARK, and
CHRYSTAL ANN McCONNELL, Plaintiffs v. HYATT HOTELS CORPORATION,
HYATT PLACE FRANCHISING, L.L.C., NOBLE INVESTMENT GROUP, LLC, NF II
BOULDER OP CO, LLC, HP BOULDER, LLC, INTERSTATE HOTELS & RESORTS,
INC., NOBLE-INTERSTATE MANAGEMENT GROUP, LLC, 3001 PEARL, LLC,
COLORADO CODE CONSULTING, LLC, DESIGN MECHANICAL INC., GIVEN &
ASSOCIATES, INC., MARXAIRE, INC., and MILENDER WHITE CONSTRUCTION
CO., Defendants, Civil Action No. 20-cv-01236-RM-SKC (D. Colo.),
Judge Raymond P. Moore of the U.S. District Court for the District
of Colorado granted in part and denied in part Hyatt Place's Motion
to Dismiss.
I. Background
The Plaintiffs allege they suffered from carbon monoxide poisoning
when they stayed at the Hyatt Place Boulder in Colorado and that
other guests at the hotel were likely exposed as well. The Clarks,
who are Montana citizens, brought the lawsuit on behalf of
themselves as well as a putative class of similarly situated
individuals who were guests at the hotel from Nov. 10 to 18, 2018.
The Third Amended Class Action Complaint asserts four causes action
against numerous Defendants for (1) violation of the Colorado
Premises Liability Act ("CPLA"), (2) negligence and vicarious
liability, (3) violation of the Colorado Consumer Protection Act
("CCPA"), and (4) medical monitoring.
The putative class action is before the Court on three
Recommendations by Magistrate Judge S. Kato Crews addressing five
pending Motions to Dismiss and a fourth Recommendation addressing a
Motion to Stay. Also pending is an Objection to the magistrate
judge's Jan. 3, 2022, Discovery Order.
II. Analysis
A. Motions to Dismiss by Hyatt, Interstate, and Noble
Defendants Interstate, Noble, and Hyatt moved to dismiss the claims
against them for lack of personal jurisdiction. After their Motions
were fully briefed, the magistrate judge concluded that the
Plaintiffs had failed to make a prima facie showing of jurisdiction
as to each of them.
Judge Moore agrees.
With respect to Interstate, first, Judge Moore declines to consider
the new evidence presented with the Plaintiffs' Objections. He
says, even if the Court were inclined to consider such evidence,
however, it moves the needle negligibly in the Plaintiffs' favor,
and they still fail to meet their burden of establishing
jurisdiction. Second, he agrees with the magistrate judge's
conclusion that the evidence the Plaintiffs submitted with their
Response does not amount to "competent proof" that Interstate
purposefully established minimum contacts with Colorado. Third,
even if the evidence is considered, he is not persuaded that it is
sufficient to establish either specific or general personal
jurisdiction over Interstate. Fourth, the Plaintiffs' request for
jurisdictional discovery is also unavailing because the Plaintiffs
have not filed a separate motion for jurisdictional discovery and
they have not shown they would be prejudiced if not allowed
jurisdictional discovery. Accordingly, Judge Moore overrules the
Plaintiffs' Objections to the Recommendation pertaining to
Interstate.
As for Noble, Judge Moore finds that in their Objections, the
Plaintiffs present more new evidence to support their contention
that Noble's senior executives were in control of these
subsidiaries. But again, he says, this evidence was not presented
to the magistrate judge. And in any event, he finds it is minimally
persuasive. For the most part, the Plaintiffs' Objections with
respect to Noble parallel those with respect to Interstate, and
Judge Moore overrules them for substantially the same reasons.
As for Hyatt, in their Objections, the Plaintiffs argue that their
Motion seeking to supplement the record with additional evidence of
Hyatt's involvement in the hotel's design and construction remains
pending. However, that Motion became moot after the Plaintiffs
filed the Second Amended Class Action Complaint, and the Plaintiffs
did not file a renewed motion to file their supplemental brief and
exhibits. Aside from this misguided argument, the Plaintiffs
Objections related to Hyatt's Motion are largely duplicative of its
arguments related to Interstate and Noble, which the Court has
already determined are without merit. Therefore, Judge Moore
overrules them for the same reasons.
B. Motion to Dismiss by Hyatt Place
In its Motion to Dismiss, Hyatt Place sought dismissal of all the
claims asserted against it. Nonetheless, Hyatt Place does not
object to the magistrate judge's Recommendation, which concluded
that the Complaint states a CPLA claim against it. For the
Plaintiffs' part, they do not object to the magistrate's
determination that the Complaint fails to state a claim for either
violation of the CCPA or medical monitoring. Judge Moore discerns
no error with respect to the portions of the Recommendation to
which no party objected and adopts them into his Order by
reference.
Moreover, in their Objections, the Plaintiffs do not meaningfully
address the magistrate judge's determination that the Complaint
lacks factual allegations to support a duty owed by Hyatt Place
apart from the CPLA. Judge Moore finds that the conclusory
allegations in the Complaint fail to support their actual agency
theory as a basis for holding Hyatt Place liable.
Therefore, he overrules the Plaintiffs' Objections with respect to
their negligence claims against Hyatt Place, and these claims are
dismissed as well.
C. Motion to Dismiss by Noble, NF II, HP Boulder, Interstate, and
Noble-Interstate
These Defendants filed a separate Motion to Dismiss with respect to
the Plaintiffs' claims for violation of the CCPA and medical
monitoring. As Judge Moore mentioned, the Plaintiffs do not object
to the portions of the Recommendation addressing these claims.
Accordingly, the Motion is granted.
D. Motion to Stay
Defendants Milender White Construction Co., Design Mechanical,
Inc., and Given & Associates, Inc., filed a Motion to Stay, seeking
an "automatic stay" in the case pending completion of the mandatory
notice of claim process under the Colorado Construction Defect
Action Reform Act ("CDARA"). The Motion was referred to the
magistrate judge. After it was fully briefed and Recommendations
had been issued on the pending Motions to Dismiss, the magistrate
judge recommended that these Defendants' Motion be denied.
No party objected to the Recommendation. Judge Moore discerns no
error in the record and agrees with the magistrate judge's
determinations that the CDARA's notice of claim procedure applies
to "property owners who bring claims against construction
professionals for damages to their property arising out of
construction defects," and therefore it does not apply to these
Defendants. Accordingly, the Motion is denied for the reasons
stated in more detail in the Recommendation.
E. Objection to Discovery Order
Finally, Noble-Interstate and Hyatt Place have filed an Objection
to the magistrate judge's Jan. 3, 2022, Discovery Order, requiring
them to produce hotel guest names and contact information. The
Plaintiffs have filed a Response to the Objection, and the
Objection is overruled.
Judge Moore holds that these Defendants have not shown that the
magistrate judge's determination is contrary to law. Moreover,
given the magistrate judge's findings that these Defendants failed
to articulate any undue burden and the Plaintiffs were seeking
discovery proportional to the needs of the case, Judge Moore is not
persuaded that any "more than minimal" burden has been shown. Thus,
these Defendants have also not shown the magistrate judge's
assessment of the Defendants' burden of production was clearly
erroneous.
In addition, Judge Moore finds that the Defendants have fallen well
short of establishing that the Discovery Order is contrary to law
or clearly erroneous. He will not also assume these Defendants'
burden to produce this information is significantly increased due
to the asserted privacy interests of its guests. Thus, Judge Moore
discerns no basis for setting aside the Discovery Order based on
anyone's privacy interests. Because these Defendants have again
fallen well short of leaving the Court with a definite and firm
conviction that a mistake has been committed, the Objection is
overruled.
III. Conclusion
For the reasons he stated, Judge Moore overruled the Plaintiffs'
Objections; accepted the Recommendations and incorporated into his
Order by reference; granted in part and denied in part Hyatt
Place's Motion to Dismiss, as stated in the Order; granted the
other Motions to Dismiss; denied the Motion to Stay; and overruled
Noble-Interstate and Hyatt Place's Objection.
A full-text copy of the Court's March 25, 2022 Order is available
at https://tinyurl.com/4v2u2cby from Leagle.com.
IKEA DISTRIBUTION: Wage Class Action to Remain in Federal Court
---------------------------------------------------------------
Kathleen Dailey, writing for Bloomberg Law, reports that Ikea
Distribution Services Inc. convinced a federal judge to retain
jurisdiction over an employee's proposed class action alleging
various violations of wage and break requirements under California
labor law.
The retailer established that the alleged meal break violations
alone are worth about $6 million, which exceeds the Class Action
Fairness Act's $5 million benchmark, Judge Dale A. Drozd of the
U.S. District Court for the Eastern District of California said
April 1.
Ikea submitted declarations from an outside consultant who reviewed
and analyzed employment, payroll, and timekeeping records, and the
human resources manager who gathered the data for review. [GN]
JEFFERSON PARISH, LA: Unconstitutionality of SBSEP Upheld in Mellor
-------------------------------------------------------------------
In the case captioned WILLIAM MELLOR, ET AL. v. THE PARISH OF
JEFFERSON, Case No. 2021-CA-0858 (La.), the Supreme Court of
Louisiana affirmed the trial court's judgment.
Jefferson Parish directly appeals the trial court's judgment
finding that Jefferson Parish ordinance, Section 36-320, et seq.,
titled, "School Bus Safety Enforcement Program for Detecting
Violations of Overtaking and Passing School Buses" ("SBSEP"), is
unconstitutional.
I. Background
After receiving notices of alleged violations of Section 36-320, et
seq., of the Jefferson Parish Code of Ordinances, the Petitioners
filed a class action Petition for Damages and Declaratory Judgment.
The Petitioners sought a judgment declaring Section 36-320, et seq.
unconstitutional and the return of the fines they paid pursuant to
the violations. The Jefferson Parish Council adopted the SBSEP in
2008. Section 36-322 defines the proscribed conduct and the
attendant civil fines.
The SBSEP establishes civil fines against vehicle owners whose
vehicles overtake and pass a school bus with its visual signals
activated. It is enforced by the use of automated cameras affixed
to the school buses to record the violating vehicles.
Additionally, and important to the discussions, Section 36-324(a),
titled "Enforcement; procedures," provides the following: "The
Jefferson Parish School Board, or its agent, is responsible for the
administration of the system and for notification of the violation.
The Jefferson Parish Sheriff's Office will be responsible for the
collection of the initial fines paid by the vehicle owner."
In 2007, prior to any formal adoption of the SBSEP, the Jefferson
Parish School Board entered into a contract with ONGO Live, Inc.
Under the contract, ONGO would administer the SBSEP on behalf of
the School Board by providing and installing the necessary
equipment to gather data relative to SBSEP violations. ONGO would
then provide such data to the Sheriff's Office for review. The
contract further vested the Jefferson Parish Sheriff's Office with
the sole authority to determine whether a violation notice should
be issued.
The School Board also entered into a Cooperative Endeavor Agreement
with the Sheriff's Office. Under the terms of the agreement, the
Sheriff's Office agreed to review, approve, or reject violations
based on the evidence provided by ONGO, and to collect the
associated fines. Additionally, the School Board authorized the
Sheriff's Office to establish management and bookkeeping protocols
with ONGO consistent with the terms of the School Board's contract
with the company.
In 2019, petitioners moved for summary judgment as to the
constitutionality of the SBSEP. They asserted multiple arguments
against the SBSEP, including arguments based on violations of the
Jefferson Parish Home Rule Charter and violations of Louisiana
statutory law. Most importantly, for our considerations, the
Petitioners argued that as a home rule charter government under La.
Const. art. VI, Section 5(G), Jefferson Parish is constitutionally
forbidden from enacting ordinances that regulate the School Board.
The trial court granted summary judgment in favor of the
Petitioners. It found the SBSEP unconstitutional because the plain
wording of the SBSEP, supported by Jefferson Parish's own
admissions, charged the School Board with various duties in
administering the SBSEP in violation of La. Const. art. VI, Section
5(G). According to the judge, "Jefferson Parish, under its Home
Rule Charter, cannot mandate that an independent arm of the State,
in the case the Jefferson Parish School Board, assume Jefferson
Parish's administrative or enforcement-related obligations under
SBSEP." Thereafter, Jefferson Parish filed its direct appeal to the
Court.
II. Discussion
The only issue before the Court is the constitutionality of the
SBSEP.
Jefferson Parish asserts the division of responsibility between the
School Board and the Sheriff's Office in the SBSEP is consistent
with the respective entities' mandates as set forth in the
Louisiana Constitution, La. R.S. 17:81 C4, La. R.S. 17:1585, and
La. R.S. 13:5539 C6. It contends the SBSEP relegates enforcement to
the Sheriff's Office and administration to the School Board, and
does not impermissibly usurp the enforcement power of the Sheriff's
Office. Jefferson Parish further argues the School Board is the
only entity that can administer the SBSEP because La. R.S. 17:158
requires the School Board to provide transportation services to
students, and La. R.S. 17:81 C permits the School Board to make
rules and regulations it may deem proper, as long as they are not
inconsistent with law or the State Board of Elementary and
Secondary Education ("BESE"). It further asserts the SBSEP is
consistent with La. Const. art. VII Section 14(C)7 and La. R.S.
33:13248, as it merely codifies the legally permissible cooperative
endeavor agreement between the parties.
After de novo review, the Supreme Court is not persuaded by the
arguments made by Jefferson Parish. It opines that the constitution
ensures school boards are not subject to control by local
governmental subdivisions. The constitutional provisions envision a
separation of the local parish government and school board. The
language of the Louisiana Constitution clearly prohibits Jefferson
Parish from enacting regulations affecting the School Board.
In short, the SBSEP is a direct mandate imposed on the School
Board. It "affects" the School Board as contemplated by La. Const.
art. VI, Section 5(G) by forcing it to take action to administer
the system and notify the sheriff. Moreover, that the School Board
does not object to the SBSEP is of no consequence. The Louisiana
Constitution makes clear that local governments cannot adopt laws
affecting a school board, and their acquiescence has no curative
properties for that which is constitutionally prohibited.
The Supreme Court further finds no merit in the argument that the
Sheriff's Office is the only entity being charged with enforcement
of the SBSEP. The SBSEP merely tasks the Sheriff's Office with
"collection of the initial fines paid by the vehicle owner."
Without the mandated obligation of the School Board to administer
the system of cameras and provide notice of violations, the sheriff
would have no function at all. It is clear that implementation of
the SBSEP requires action by and "affects" the School Board.
In consideration of these, the Supreme Court finds the SBSEP is
unconstitutional, and circumvents the constitutional limitations of
the parish's legislative authority. La. Const. art. VI, Section
5(G) unambiguously limits legislative bodies of home rule charter
parishes from controlling or affecting school boards.
III. Decree
For the foregoing reasons, the Supreme Court affirmed the trial
court's judgment finding the SBSEP unconstitutional; and it
remanded the matter for further proceedings.
A full-text copy of the Court's March 25, 2022 Opinion is available
at https://tinyurl.com/e2aybvrw from Leagle.com.
JPMORGAN CHASE: Duke Suit Removed from State Court to S.D. Cal.
---------------------------------------------------------------
The class action lawsuit captioned as CRAIG DUKE, an individual, on
behalf of himself and all others similarly situated v. JPMORGAN
CHASE BANK, NATIONAL ASSOCIATION, a United States Corporation;
JPMORGAN CHASE & CO., a Delaware Corporation; and DOES 1 to 50,
Case No. 37-2022-00007805-CU-OE-CTL (Filed March 1, 2018) was
removed from the San Diego County Superior Court to the United
States District Court for the Southern District of California on
April 1, 2022.
The Southern District of California Court Clerk assigned Case No.
3:22-cv-00436-DMS-WVG to the proceeding.
The Plaintiff seeks to represent the following class putative
class:
"All individuals who are or were employed by the Defendants as
mortgage bankers, loan sales associates, and equivalent positions
in California during the Class Period. The Class Period is defined
as the period from four years prior to the filing of this action
and continuing into the present and ongoing.
The Plaintiff's complaint seeks compensatory, consequential,
general, and special damages, penalties, restitution, attorneys'
fees, costs, and interest for the following claims: (1) failure to
pay all minimum wages; (2) failure to pay overtime; (3) failure to
provide rest periods and pay missed rest period premiums; (4)
failure meal periods and pay missed meal period premiums; (5)
failure to maintain accurate employment records; (6) failure to pay
wages timely during employment; and (7) failure to pay all wages
earned and unpaid at separation.
JPMorgan is an American multinational investment bank and financial
services holding company headquartered in New York City and
incorporated in Delaware.[BN]
The Defendants are represented by:
Alexander L. Gorban, Esq.
Joseph A. Govea, Esq.
MORGAN, LEWIS & BOCKIUS LLP
600 Anton Boulevard, Suite 1800
Costa Mesa, CA 92626-7653
Telephone: (714) 830 0600
Facsimile: (714) 830 0700
E-mail: carrie.gonell@morganlewis.com
alexander.grodan@morganlewis.com
joseph.govea@morganlewis.com
K&B AUTO SALES: Vogt Suit Removed to E.D. Missouri
--------------------------------------------------
The case styled as Lillian Louise Morgan Vogt, individually and as
the Representative of a class of similarly situated persons v. K&B
Auto Sales LLC, Progressive Casualty Insurance Company, Case No.
21SL-AC01922, was removed from the 21st Judicial Circuit, St. Louis
County, Missouri, to the U.S. District Court for the Eastern
District of Missouri on April 1, 2022.
The District Court Clerk assigned Case No. 4:22-cv-00385 to the
proceeding.
The nature of suit is stated as Other Fraud.
K&B Auto Sales -- https://www.kbautosalesstl.com/ -- is a car
dealer in Webster Groves, Missouri.[BN]
The Plaintiff appears pro se.
The Defendants are represented by:
Sandra Jane Wunderlich, Esq.
TUCKER ELLIS LLP - St Louis
100 S. 4th St., Suite 600
St. Louis, MO 63102
Phone: (314) 256-2544
Fax: (314) 256-2549
Email: sandra.wunderlich@tuckerellis.com
KAHRS LAW OFFICES: Sims Files FDCPA Suit in D. Kansas
-----------------------------------------------------
A class action lawsuit has been filed against Kahrs Law Offices,
P.A. The case is styled as Patricia Sims, on behalf of herself and
others similarly situated v. Kahrs Law Offices, P.A., Case No.
2:22-cv-02112-JWB-TJJ (D. Kan., March 23, 2022).
The lawsuit is brought over alleged violation of the Fair Debt
Collection Practices Act.
Kahrs Law Offices, P.A. -- https://kahrslaw.com/ -- is a debt
collection law office located in Wichita, Kansas.[BN]
The Plaintiff is represented by:
Andrew Taylor, Esq.
Jenilee V. Zentrich, Esq.
Mark W. Schmitz, Esq.
Bryce B. Bell, Esq.
BELL LAW, LLC
2600 Grand Blvd., Suite 580
Kansas City, MO 64108
Phone: (417) 631-8374
Email: at@belllawkc.com
jz@belllawkc.com
ms@belllawkc.com
bryce@BellLawkc.com
KONINKLIJKE PHILIPS: Suit Alleges Defective Sleep Apnea Machines
----------------------------------------------------------------
Irvin Jackson, writing for About Lawsuits, reports that a class
action lawsuit has been filed by a durable medical equipment
supplier over the fall-out from a Philips CPAP/BiPAP Machine recall
issued last year, indicating that the manufacturer knowingly
distributed dangerous and defective sleep apnea machines that
contained a defective sound abatement foam, which has been found to
breakdown and release toxic particles directly into the air
pathways.
The complaint was filed by Baird Respiratory Therapy in the U.S.
District Court for the Eastern District of Pennsylvania, pursuing
damages from Koninklijke Philips and its North American
subsidiaries as defendants.
The medical equipment supplier joins thousands of consumers
directly pursuing a Philips CPAP/BiPAP machine lawsuit over cancers
and other respiratory injuries linked to breathing the sound
abatement foam particles. However, this class action lawsuit seeks
damages on behalf of Baird Respiratory Therapy and other durable
medical equipment suppliers nationwide.
According to allegations raised in the equipment supplier class
action lawsuit over the Philips CPAP/BiPAP machines, problems with
the polyester-based polyurethane (PE-PUR) sound abatement foam
inside the machines was known to the manufacturer, but the company
continued to distribute products with the defective design, leading
Baird Respiratory Therapy and other suppliers to sell dangerous
products to their customers.
"Several facts support the assertion that Philips knew of the issue
of the degradation of PE-PUR foam well in advance of issuing the
recall. First, Philips' own language admits that the recall was
issued in response to 'several complaints' it had received
regarding black particles and debris in the airways of the Recalled
Devices," the lawsuit states. "Second, posts on message boards and
YouTube channels…complained about problems now known to be
consistent with the degradation of PE-PUR foam, including black
particles in the airways of the Recalled Devices."
According to an FDA inspection report released late last year,
Philips knew about the problem with the degrading sound abatement
foam since at least 2015, before Greene's device was purchased,
indicating that emails exchanged with the foam supplier discussed
the problem. However, no investigation was initiated or corrective
actions were taken until the massive recall was announced in June
2021.
Earlier this month, the FDA officials issued a scathing letter to
the manufacturer, warning that the Philips CPAP recall
notifications have been inadequate, leaving too many consumers and
medical equipment manufacturers unaware of the health risks posed
by continuing to use recalled sleep apnea machines with the toxic
sound abatement foam.
Baird Respiratory Therapy seeks class action status for the
lawsuit, which would include all DME suppliers in the U.S. who
purchased recalled breathing assistance devices from Philips before
June 14, 2021. The lawsuit seeks to recover damages for negligence,
breach of express warranty and fraud.
Given common questions of fact and law raised in Philips sleep
apnea machine product liability lawsuits and class action lawsuits
filed nationwide, coordinated pretrial proceedings have been
established before Senior U.S. District Judge Joy Flowers Conti in
the Western District of Pennsylvania, where this latest complaint
will also be centralized.
In the coming years, it is expected that Judge Conti will establish
a bellwether program where small groups of representative Philips
CPAP lawsuits will be prepared for early trial dates, to help gauge
how juries are likely to respond to certain evidence and testimony
that is likely to be repeated throughout the claims. [GN]
KWIK TEK: Calcano Files ADA Suit in S.D. New York
-------------------------------------------------
A class action lawsuit has been filed against Kwik Tek, Inc. The
case is styled as Marcos Calcano, on behalf of himself and all
other persons similarly situated v. Kwik Tek, Inc., Case No.
1:22-cv-02677 (S.D.N.Y., March 31, 2022).
The lawsuit is brought over alleged violation of the Americans with
Disabilities Act.
Kwik Tek Inc. doing business as Airhead -- https://www.airhead.com/
-- provides marine accessories. The Company offers docking,
mooring, and storage systems, flags, flag holders, paddles, and
safety gears.[BN]
The Plaintiff is represented by:
Jeffrey Michael Gottlieb, Esq.
Dana Lauren Gottlieb, Esq.
GOTTLIEB & ASSOCIATES
150 E. 18 St., Suite PHR
New York, NY 10003
Phone: (917) 796-7437
Fax: (212) 982-6284
Email: nyjg@aol.com
danalgottlieb@aol.com
LA TERRA FINA: West Suit Removed to E.D. Missouri
-------------------------------------------------
The case styled as Ramona West, individually and on behalf of alll
other similarly situated current Missouri citizens v. La Terra Fina
USA, LLC, Case No. 2222-CC00336, was removed from the Circuit Court
of the City of St. Louis, to the U.S. District Court for the
Eastern District of Missouri on April 1, 2022.
The District Court Clerk assigned Case No. 4:22-cv-00381-NCC to the
proceeding.
The nature of suit is stated as Other Fraud.
La Terra Fina -- https://laterrafina.com/ -- specializes in utterly
craveable dips, spreads, and quiches that are lovingly made with
fresh, wholesome ingredients.[BN]
The Plaintiff is represented by:
Matthew H. Armstrong
ARMSTRONG LAW FIRM LLC
8816 Manchester Road
St. Louis, MO 63144
Phone: (314) 258-0212
Email: matt@mattarmstronglaw.com
- and -
Stuart Lee Cochran
COCHRAN LAW PLLC
8140 Walnut Hill Ln., Suite 250
Dallas, TX 75231
Phone: (469) 333-3405
Fax: (469) 333-3406
Email: stuart@scochranlaw.com
The Defendants are represented by:
Meghan M. Lamping, Esq.
CARMODY MACDONALD PC - St Louis
120 S. Central Ave., Suite 1800
St. Louis, MO 63105
Phone: (314) 854-8600
Fax: (314) 854-8660
Email: mml@carmodymacdonald.com
LAKEVIEW LOAN: Faces Class Actions Over 2021 Data Breach
--------------------------------------------------------
Erin Shaak, writing for ClassAction.org. reports that Lakeview Loan
Servicing, LLC (LLS) has been hit with at least two proposed class
action lawsuits in the wake of a late 2021 data breach that
reportedly affected more than 2.5 million consumers.
The lawsuits, both filed March 31, allege that the data breach,
which occurred from October 27 through December 7, 2021, was a
direct result of Lakeview's failure to implement adequate
cybersecurity measures. According to the cases, Lakeview customers'
names, addresses, loan and Social Security numbers, and in some
cases additional loan information, were among the data exposed in
the breach.
Moreover, the suits claim that Lakeview waited until late March
2022 to notify those whose information was compromised. Per the
cases, Lakeview not only exposed its customers to a heightened risk
of identity theft and fraud but made matters worse by delaying
notice to victims.
"When a data set that is inclusive of the aforementioned
[personally identifiable information] is breached, every moment is
precious to ensure that that data is not then weaponized against
the rightful owner of that data through identity theft," one of the
complaints stresses. "Sitting on this information allowed LLS to
dodge responsibility and inevitably worsened the Data Breach
victims' chances at weathering the storm that LLS created."
Lakeview is the fourth-largest mortgage loan servicer in the U.S.,
the cases relay. Despite the defendant's responsibility to
safeguard customers' private information, Lakeview allegedly failed
to properly encrypt its data or otherwise protect its systems and
files from unauthorized access. Per the suits, an unauthorized
individual obtained access to the loan servicer's storage servers
between October 27 and December 7, 2021, and it wasn't until
January 31, 2022 that Lakeview was able to ascertain what
information was compromised.
Lakeview nevertheless waited another month before notifying the
roughly 2.5 million consumers who were affected by the breach, the
cases state.
According to the lawsuits, although Lakeview had the resources to
invest in adequate cybersecurity procedures and protocols, the loan
servicer failed to implement industry-standard data security
measures. The complaints relay that the consequences of the
defendant's failure to properly protect customers' data are "long
lasting and severe" given the misuse of their information could
continue for years.
The complaints, embedded below, respectively look to cover anyone
who utilized Lakeview's services and whose personally identifiable
information was maintained on the company's system that was
compromised in the data breach and who was sent a notice of the
data breach, and anyone in the U.S. whose personally identifiable
information was compromised in the data breach.
How do I join the lawsuits?
There's usually nothing you need to do to join or be considered
part of a proposed class action when it's first filed. If either of
the cases moves forward and settles, that's when those affected,
i.e., the class members, should receive notice of the settlement
with instructions on how to claim their share.
In the meantime, one of the best things you can do is to stay
informed. [GN]
LAWRENCE MARKS: Credit Unions File Suit in S.D. New York
--------------------------------------------------------
A class action lawsuit has been filed against Lawrence K. Marks, et
al. The case is styled as Greater Chautauqua Federal Credit Union,
Boulevard Federal Credit Union, Greater Niagara Federal Credit
Union, individually and on behalf of all others similarly situated
v. Hon. Lawrence K. Marks, in his official capacity as Chief
Administrative Judge of the Courts; Sheriff James B. Quattrone, in
his official capacity as Sheriff of Chautauqua County, New York;
Sheriff John C. Garcia, in his official capacity as Sheriff of Erie
County, New York; Sheriff Michael J. Filicetti, in his official
capacity as Sheriff of Niagara County, New York; Case No.
1:22-cv-02753-MKV (S.D.N.Y., April 4, 2022).
The nature of suit is stated as Constitutional - State Statute for
the Civil Rights (Personal Property).
Lawrence K. Marks is judge for the New York Court of Claims.[BN]
The Plaintiff is represented by:
Emily Seiderman West, Esq.
Kan Min Nawaday, Esq.
VENABLE LLP
1290 Avenue of the Americas
New York, NY 10104
Phone: (212) 503-9816
Email: EAWest@venable.com
kmnawaday@venable.com
LOGAN HEALTH: Former Patients File Data Breach Class Action
-----------------------------------------------------------
Derrick Perkins, writing for Daily Inter Lake, reports that former
patients of Logan Health allege in a new class-action lawsuit that
the medical provider's November data breach left them open to
identity theft and represented negligence, breach of contract and
breach of fiduciary duty.
Filed in Flathead County District Court last month, the lawsuit
accuses the health-care organization of failing to safeguard
personal information and delaying in alerting patients about the
data breach. More than 213,000 patients -- 174,761 of them Montana
residents -- had their private data, including Social Security
numbers, addresses and treatment codes, exposed in the hack, court
documents said.
"The data breach was a direct result of [Logan Health's] failure to
implement adequate and reasonable cybersecurity protections and
protocols that were necessary to protect the sensitive information
of patients who entrusted it into [the facility's] custody and
care," reads the lawsuit.
Officials with Logan Health acknowledged the data breach earlier
this year. Patients exposed in the "highly sophisticated criminal
attack" received a Feb. 18 letter regarding the hack signed by
Craig Lambrecht, Logan Health's CEO. Notice of the attack also went
up on the organization's website.
According to the letter, officials learned of the breach after
investigating evidence of outside access to a Logan Health file
server that hosts shared folders for business operations. Forensic
investigators confirmed unauthorized access to files containing
patient information -- but not electronic medical records -- on
Jan. 5.
In the letter, officials stressed that they lacked evidence the
information was thus far misused. They offered affected patients a
year each of identity monitoring services. As a result, officials
said the medical provider had "deployed additional safeguards to
further fortify our information systems."
THE LAWSUIT, filed by Great Falls attorney Mark Kovacich of
Odegaard Kovacich Snipes, argues that the breach left the
plaintiffs vulnerable to future crimes.
"Because of [Logan Health's] failure to protect their information,
plaintiffs and class members will be at a heightened risk of
identity theft for the rest of their lives," it reads.
As an example, the suit alleged that the two named plaintiffs,
Farrah Bereta and Illyhia Birk, have suffered increased phishing
and scamming attempts since the breach. Bereta also has seen her
credit score drop in the months following the hack, court documents
said.
The suit lists seven justifications for financial compensation on
behalf of its plaintiffs: negligence, breach of express contract,
breach of implied contract, two counts of breach of fiduciary duty,
violation of the Montana Code Annotated relating to computer
security breaches and unjust enrichment. It seeks compensation,
damages and reimbursement of the cost of legal fees among other
"punitive or exemplary damages." It also asks the court to require
Logan Health to offer identity theft monitoring for an extra five
years and direct the organization to "secure and fully encrypt"
confidential data.
A spokesperson for Logan Health did not respond to inquiries prior
to the Daily Inter Lake's press deadline. Kovacich deferred comment
until after the medical facility was served and he brought his
co-counsel aboard the suit.
IT'S NEITHER Logan Health's first data breach in recent memory nor
its first class-action lawsuit as a result of a hack. In late 2020,
the organization agreed to establish a $4.2 million settlement fund
for individuals affected by a 2019 data breach.
In that case, officials said a phishing attempt tricked employees
into providing login information. The hack exposed personal
information related to about 130,000 patients. Then, as now,
officials noted an increase in the number and sophistication of the
cyber attacks.
"Within the last year, more than 700 health systems and other
organizations have experienced cyber security events impacting
nearly 40 [million] individuals," Lambrecht wrote in February. "We
are committed to protecting the privacy of our patients and
continue to take steps to combat these malicious threats. Our
relationship with our patients is our most valued asset. I want to
personally express my deepest regret for any inconvenience that
these criminal actions may cause you and your family." [GN]
LONG BEACH COMMUNITY: Faces Class Action Over Unpaid Worked Hours
-----------------------------------------------------------------
Thomas Peele, writing for EdSource, reports that two adjunct
professors at the Long Beach Community College District filed a
class-action lawsuit on April 4, alleging the district illegally
forced them to do unpaid work outside the classroom such as
grading, class preparation and meeting with students.
Filed in Los Angeles County Superior Court, the suit claims the
district violated California's minimum wage laws and demands back
pay for lost wages and pay for the work going forward. If a judge
allows the suit to proceed as a class action, more than 600
part-time instructors in the district could be involved.
The outcome could have statewide repercussions, advocates say.
Adjuncts are "compensated based on their classroom hours worked,
even though the district knows that these faculty members
necessarily spend substantial additional time working outside the
classroom in connection with teaching their assigned classes," the
suit states. "Although this outside-the-classroom work is essential
to teaching their classes effectively, and the district knows and
indeed expects part-time faculty members to perform this additional
work, part-time hourly instructional faculty members are not paid
for their out-of-classroom time."
District officials declined to comment, citing the pending nature
of the litigation. State Community College Chancellor Eloy Oakley's
staff did not immediately respond to a request for comment. He is a
former Long Beach district president.
The suit addresses long-smoldering issues about the nature of
part-time academic work at the state's 72 local community college
districts and could have statewide impact, lawyers and advocates
said. Prior to the pandemic cutting into their ranks, adjuncts
taught nearly half of the community college system's classes.
At 35 districts, they made up at least 70% of all faculty,
community college data shows. At only two districts did full-time
professors outnumber them.
The suit "could be a sea change" for part-timers, Eileen Goldsmith,
a San Francisco lawyer representing the plaintiffs, said at a news
conference held by the California Teachers Association on April 4.
It is supporting the plaintiffs, Long Beach City College adjuncts
Seijs Rohkea and Karen Roberts.
"Adjunct instructors at community colleges have the same
qualifications as their full-time colleagues and need to be paid
accordingly. They should not be expected to perform the same
required work for free," said Roberts, who has taught in the
district for more than 20 years.
Rohkea said the district pays adjuncts for only 38 minutes of
office time per week, which isn't enough to address student needs.
Additional work is done "for free because we are dedicated to our
students."
While they make up the backbone of the community college system,
adjuncts often struggle financially and say they are essentially
gig workers with little job security. Basically limited to teaching
no more than three classes a semester in a given district, many
work in multiple districts to cobble together something akin to a
full-time job.
At 41 districts where EdSource was able to analyze salary data from
2020 released under the state Public Records Act, adjuncts grossed
an average of less than $20,000.
An EdSource investigation published in February showed adjuncts
across the state complaining about working unpaid hours similar to
the allegations in the Long Beach suit.
"Office hours are actually instruction. You're doing the work of an
instructor," Heidi Ahders, president of the part-time faculty union
at the Mendocino-Lake Community College District, told EdSource for
the series. "You feel like you have to help your student because
you're a teacher whether you're paid or not." Not paying adjuncts
for office time is "kind of a slap in the face."
The head of a statewide adjuncts group praised the litigation.
"It's about time," John Martin, president of the California
Part-Time Faculty Association, an advocacy group that is not part
of the litigation, said shortly after the suit was announced. "This
was the most exciting day of my life as a part-time (faculty)
activist. No longer can they ignore us and our issues."
Legislation that was scheduled for a hearing in Sacramento on
Tuesday, April 5, could also aid part-time faculty.
Sponsored by Assemblymember Miguel Santiago, D-Los Angeles,
Assembly Bill 1752 would create pay parity between full and
part-time faculty by paying part-timers the same hourly rates as
"full-time faculty for comparable duties," Santiago said in a
statement. It was set to go before the Assembly Higher Education
Committee on Tuesday, April 5. [GN]
LUCID GROUP: Bernstein Liebhard Reminds of May 31 Deadline
----------------------------------------------------------
Did you lose money on investments in Lucid Group? If so, please
visit Lucid Group, Inc. Shareholder Class Action Lawsuit or contact
Peter Allocco at (212) 951-2030 or pallocco@bernlieb.com to discuss
your rights.
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
Lucid Group, Inc. ("Lucid" or the "Company") (NASDAQ: LCID) between
November 15, 2021 and February 28, 2022, inclusive (the "Class
Period"). The lawsuit was filed in the United States District Court
for the Northern District of California and alleges violations of
the Securities Exchange Act of 1934.
Lucid designs, engineers, builds, and sells luxury electric
vehicles ("EVs"). Lucid currently sells an electric sedan, the
Lucid Air, and plans to launch an electric SUV, the Lucid Gravity.
On February 22, 2021, prior to the commercial launch of the Lucid
Air, Lucid announced its plans to merge with Churchill Capital
Corp. IV ("Churchill"), a special purpose acquisition company, in a
transaction that would allow Lucid securities to be publicly traded
and provide Lucid with $4.4 billion in capital (the "Merger").
As Lucid transitioned into a publicly traded company, Defendants
assured investors that Lucid would produce 577 EVs in 2021, 20,000
EVs in 2022, and 49,000 EVs in 2023 (including 12,000 of the
Project Gravity SUV, which would launch that year).
Defendants also repeatedly assured investors that Lucid's
production capacity was rapidly increasing and that Lucid would
reach its production targets.
The Complaint alleges that, 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 and operations. Specifically, Defendants overstated
Lucid's production capabilities while concealing that
"extraordinary supply chain and logistics challenges" were
hampering the Company's operations from the start of the Class
Period.
On February 28, 2022, the Company admitted that it: (1) had only
delivered approximately 125 EVs in 2021 and still had only produced
approximately 400 EVs by February 28, 2022; (2) would only produce
between 12,000 and 14,000 EVs in 2022; and (3) would delay the
launch of the Lucid Gravity until 2024. Individual Defendant Peter
Rawlinson, Lucid's Chief Executive Officer and Chief Technology
Officer, attributed the slashed production outlook to "the
extraordinary supply chain and logistics challenges [Lucid]
encountered."
On this news, the price of Lucid common stock fell more than 13%,
closing at $24.99 per share on March 1, 2022.
If you wish to serve as lead plaintiff, you must move the Court no
later than May 31, 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 LCID common stock, and/or would like to discuss
your legal rights and options please visit Lucid Group, 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. © 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.
Contact Information:
Peter Allocco
Bernstein Liebhard LLP
https://www.bernlieb.com
(212) 951-2030
pallocco@bernlieb.com [GN]
LUCID GROUP: Robbins Geller Reminds Investors of May 31 Deadline
----------------------------------------------------------------
The law firm of Robbins Geller Rudman & Dowd LLP on April 4
disclosed that purchasers of Lucid Group, Inc. (NASDAQ: LCID)
common stock between November 15, 2021 and February 28, 2022,
inclusive (the "Class Period") have until May 31, 2022 to seek
appointment as lead plaintiff in Mangino v. Lucid Group, Inc., No.
22-cv-02094 (N.D. Cal.). Commenced on April 1, 2022, the Lucid
class action lawsuit charges Lucid 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 Lucid 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 Lucid class
action lawsuit must be filed with the court no later than May 31,
2022.
CASE ALLEGATIONS: Lucid designs, engineers, builds, and sells
luxury electric vehicles ("EVs"). Specifically, Lucid currently
sells an electric sedan, the Lucid Air, and plans to launch an
electric SUV, the Lucid Gravity. On February 22, 2021, prior to the
commercial launch of the Lucid Air, Lucid announced its plans to
merge with Churchill Capital Corp. IV, a special purpose
acquisition company, in a transaction that would allow Lucid
securities to be publicly traded and would provide Lucid with $4.4
billion in capital (the "Merger").
The Lucid class action lawsuit alleges that, as Lucid transitioned
into a publicly traded company, defendants assured investors that
Lucid would produce 577 EVs in 2021, 20,000 EVs in 2022, and 49,000
EVs in 2023 (including 12,000 of the Project Gravity SUV, which
would launch that year). Indeed, defendants repeatedly assured
investors that Lucid's production capacity was rapidly increasing
and that Lucid would reach its production targets. However, as the
Lucid class action lawsuit alleges, defendants overstated Lucid's
production capabilities while concealing that "extraordinary supply
chain and logistics challenges" were hampering Lucid's operations
from the start of the Class Period.
On February 28, 2022, Lucid admitted that it: (1) had only
delivered approximately 125 EVs in 2021 and still had only produced
approximately 400 EVs by February 28, 2022; (2) would only produce
between 12,000 and 14,000 EVs in 2022; and (3) would delay the
launch of the Lucid Gravity until 2024. Defendant Rawlinson
attributed the slashed production outlook to "the extraordinary
supply chain and logistics challenges [Lucid] encountered." On this
news, the price of Lucid common stock fell by more than 13%,
damaging investors.
THE LEAD PLAINTIFF PROCESS: The Private Securities Litigation
Reform Act of 1995 permits any investor who purchased Lucid common
stock during the Class Period to seek appointment as lead plaintiff
in the Lucid 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 Lucid class action lawsuit. The lead
plaintiff can select a law firm of its choice to litigate the Lucid
class action lawsuit. An investor's ability to share in any
potential future recovery of the Lucid 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.
Attorney advertising.
Past results do not guarantee future outcomes.
Services may be performed by attorneys in any of our offices.
Contact:
Robbins Geller Rudman & Dowd LLP
655 W. Broadway, San Diego, CA 92101
J.C. Sanchez, 800-449-4900
jsanchez@rgrdlaw.com [GN]
MATRIX TRUST: Faces Class Action Over Unauthorized Plan Fees
------------------------------------------------------------
Jacklyn Wille, writing for Bloomberg Law, reports that a lawsuit
accusing benefit plan custodian Matrix Trust Co. of taking millions
of dollars in undisclosed and unauthorized fees from its plan
customers should be certified as a class action, an engineering
firm said in a Texas federal court filing.
MBA Engineering Inc. wants its Employee Retirement Income Security
Act lawsuit certified to cover two classes of Matrix customers
whose accounts generated mutual fund fees and interest since 2005.
MBA's motion, filed April 1 in the U.S. District Court for the
Northern District of Texas, says a "significant majority" of
Matrix's 120,000 customers are likely to fall within this class.
[GN]
MAVI JEANS: Lawal Files ADA Suit in S.D. New York
-------------------------------------------------
A class action lawsuit has been filed against Mavi Jeans, Inc. The
case is styled as Rafia Lawal, on behalf of herself and all others
similarly situated v. Mavi Jeans, Inc., Case No. 1:22-cv-02767
(S.D.N.Y., April 4, 2022).
The lawsuit is brought over alleged violation of the Americans with
Disabilities Act.
Mavi -- https://us.mavi.com/ -- is recognized as a leading
lifestyle brand worldwide.[BN]
The Plaintiff is represented by:
Yitzchak Zelman, Esq.
MARCUS & ZELMAN LLC
701 Cookman Avenue, Suite 300
Asbury Park, NJ 07712
Phone: (845) 367-7146
Fax: (732) 298-6256
Email: yzelman@marcuszelman.com
MCDONALD'S CORP: Settles Sexual Harassment Class Action for $1.5MM
------------------------------------------------------------------
Krystle Holleman, writing for WILX, reports that former workers of
a McDonald's restaurant in Mason, who are part of a class-action
lawsuit alleging a culture of sexual harassment, will be eligible
to claim awards averaging $10,000, depending on the extent of the
harassment they suffered, under the terms of a proposed settlement
sent for court approval on April 4.
The suit was originally filed in November 2019 by former McDonald's
employee Jenna Ries. In December 2021, a federal judge ruled the
lawsuit could proceed on behalf of a class of nearly 100 other
women and teenage girls. The judge's decision was based on evidence
showing the "consistency, frequency, severity, and visibility" of
the harassment they experienced at the hands of one store manager.
"No one should have to put up with sexual harassment to get a
paycheck," said Ries. "I filed this lawsuit because I didn't want
other women to go through what I did while working at McDonald's. I
hope those who were abused will get the compensation they deserve,
but I also hope McDonald's will listen to survivors, and do
everything possible to prevent sexual harassment in its
restaurants."
Ries worked at the Mason McDonald's for three years and alleged
that a manager frequently propositioned her for sex while on the
job, used degrading, offensive terms to describe her in front of
other workers and the store's general manager and that he
frequently grabbed her in private areas of her body.
Later, three former employees joined Ries in bringing the case,
with nearly 20 other women submitting sworn statements in support
of the lawsuit. All confirmed similar conduct they experienced at
the hands of the same manager.
"While this settlement is a win for dozens of Mason McDonald's
workers who claimed egregious harassment, it, unfortunately,
doesn't go as far as we would have hoped, because McDonald's
corporate wasn't at the table," said Gillian Thomas, senior staff
attorney at the American Civil Liberties Union Women's Rights
Project.
While the case originally was filed against McDonald's as well as
its Mason franchisee, the company was looking to be let out of the
case, claiming that since it did not directly employ the harasser
or the women which he targeted, it was not responsible for the
abuse.
In late 2021, the court agreed with the company, and dismissed the
corporate entity, leaving the franchisee as the only defendant in
the case. It alone is paying the $1.5 million settlement.
"If McDonald's accepted responsibility for the well-being of the
nearly one million people who work under the Golden Arches, it
would protect countless workers from harassment and violence,"
explained Darcie Brault, Michigan-based counsel for the Mason
Plaintiffs. "It is unconscionable that McDonald's continues to say
'not it' when it comes to sexual harassment of workers at its
franchise locations."
Of McDonald's 14,000 restaurants nationwide, 95% are franchisees.
However, the company traditionally has not required franchisees to
take steps to prevent or remedy harassment, and regularly fights
franchise workers' efforts to hold the company responsible in
court.
In April 2021, the company claimed that it would start requiring
franchisees to meet "Global Brand Standards" against harassment.
"We brought this suit because we want real change, and to stamp out
sexual harassment for everyone who wears the McDonald's uniform.
I'm sorry that that's not going to happen today," said Emily
Anibal, who was only 16 when she worked at the Mason McDonald's.
"It feels good to get some relief for the nightmare we endured, but
we're not going to be quiet. We're going to keep fighting on behalf
of McDonald's workers everywhere."
Since at least 2016, McDonald's workers have filed more than 100
complaints and lawsuits alleging workplace sexual harassment, such
as groping, propositions for sex (at times in exchange for hours),
and rape.
The Michigan class-action suit was initially filed by Ries and the
ACLU Women's Rights Project and co-counsel with support from the
TIME'S UP Legal Defense Fund. [GN]
META PLATFORMS: Levi & Korsinsky Reminds of May 9 Deadline
----------------------------------------------------------
Levi & Korsinsky, LLP notifies investors in Meta Platforms, Inc. of
a class action securities lawsuit.The lawsuit on behalf of Meta
Platforms, Inc. investors has been commenced in the the United
States District Court for the Northern District of California.
Affected investors purchased or otherwise acquired certain Meta
Platforms, Inc. securities between March 2, 2021 and February 2,
2022.
Levi & Korsinsky, LLP notifies investors in Meta Platforms, Inc.
("Meta Platforms, Inc." or the "Company") (NASDAQ: FB) of a class
action securities lawsuit.
The lawsuit on behalf of Meta Platforms, Inc. investors has been
commenced in the the United States District Court for the Northern
District of California. Affected investors purchased or otherwise
acquired certain Meta Platforms, Inc. securities between March 2,
2021 and February 2, 2022. Follow the link below to get more
information and be contacted by a member of our team:
https://www.zlk.com/pslra-1/meta-platforms-inc-loss-submission-form?prid=25488&wire=5
or contact Joseph E. Levi, Esq. either via email at
jlevi@levikorsinsky.com or by telephone at (212) 363-7500. There is
no cost or obligation to you.
Meta Platforms, Inc. NEWS - FB NEWS
CASE DETAILS: The filed complaint alleges that defendants made
false statements and/or concealed that: (1) Apple's iOS privacy
changes were having a material impact on Meta's ability to provide
the kind of targeted advertising that its customers wanted and, as
a result, customer ad spending was dropping precipitously; (2)
Meta's mitigation efforts were either not properly implemented or
ineffective; (3) measurement of ads was not accurate as mitigation
efforts were failing; and (4) Meta did not have a plan in place to
properly address the impact of the iOS privacy changes.
WHAT THIS MEANS TO SHAREHOLDERS: If you suffered a loss in Meta
Platforms, Inc. during the relevant timeframe, you have until May
9, 2022 to request that the Court appoint you as lead plaintiff.
Your ability to share in any recovery doesn't require that you
serve as a lead plaintiff.
NO COST TO YOU: If you are a class member, you may be entitled to
compensation without payment of any out-of-pocket costs or fees.
Discuss your rights with our legal team without cost or
obligation.
PROTECT YOUR FINANCIAL INTERESTS: Complete this brief submission
form
https://www.zlk.com/pslra-1/meta-platforms-inc-loss-submission-form?prid=25488&wire=5
or call 212-363-7500 to discuss the case.
WHY LEVI & KORSINSKY: Over the past 20 years, the team at Levi &
Korsinsky has secured hundreds of millions of dollars for aggrieved
shareholders and built a track record of winning high-stakes cases.
Our firm has extensive expertise representing investors in complex
securities litigation and a team of over 70 employees to serve our
clients. For seven years in a row, Levi & Korsinsky has ranked in
ISS Securities Class Action Services' Top 50 Report as one of the
top securities litigation firms in the United States.
CONTACT:
Levi & Korsinsky, LLP
Joseph E. Levi, Esq.
Ed Korsinsky, Esq.
55 Broadway, 10th Floor
New York, NY 10006
jlevi@levikorsinsky.com
Tel: (212) 363-7500
Fax: (212) 363-7171
www.zlk.com [GN]
META PLATFORMS: Plaintiffs' Lawyers File Sanctions Motion
---------------------------------------------------------
Alison Frankel, writing for Reuters, reports that in a newly
unsealed sanctions motion in a class action arising from the
Cambridge Analytica data-sharing scandal, plaintiffs' lawyers
contend that Facebook Inc and its legal team from Gibson, Dunn &
Crutcher not only acted in bad faith by delaying crucial discovery
but compounded their violations by attempting to blame plaintiffs
for the slowdown.
The redacted sanctions motion, originally filed under seal on March
12, seeks about $854,000 in fees and costs from Facebook (now Meta
Platforms Inc), Gibson Dunn and Gibson Dunn's lead partner in the
class action, Orin Snyder.
Plaintiffs' lawyers from Keller Rohrback and Bleichmar Fonti & Auld
moved for sanctions at the urging of the judge presiding over the
class action, U.S. District Judge Vince Chhabria of San Francisco.
At a hearing in February, Chhabria said he had already developed
"quite a strong preliminary view" that the company and Gibson Dunn
had engaged in sanctionable conduct.
The newly unsealed brief, first spotted by my colleague Mike
Scarcella, offers 56 pages of arguments to bolster Chhabria's
supposition. Plaintiffs' lawyers allege that Facebook's obfuscation
and delay were a deliberate litigation strategy. The company and
its lawyers, the brief said, "delayed discovery by slow-walking
discovery disputes, obstructing plaintiffs' requests for relevant
evidence, disobeying or distorting court orders and making
insubstantial and sometimes frivolous legal arguments."
Moreover, the plaintiffs allege, Facebook pushed a "false
narrative" that any delay was due to unreasonable discovery demands
from plaintiffs scrounging for viable claims and trying to expand
their case beyond allegations that Facebook improperly shared
users' data without consent. Keller Rohrback and Bleichmar Fonti
argued that Facebook's attempt to shift the blame for seemingly
irresolvable discovery disputes was additional proof of its bad
faith.
Plaintiffs appear to have a receptive audience in Chhabria. At a
March 30 hearing, the judge floated the possibility of simply
ruling that adverse inferences may be drawn against Facebook in
class certification and summary judgment briefing and at trial.
Chhabria even floated the prospect of entering judgment against
Facebook as a sanction for discovery delays.
"Let me just ask one question," the judge said to plaintiffs'
lawyer Derek Loeser of Keller Rohrback. "Have there ever been cases
where judgment is simply entered against the defendant based on
dilatory discovery conduct?"
Loeser's co-counsel, Lesley Weaver of Bleichmar Fonti, responded
that case-ending sanctions were "an appropriate remedy for serious
discovery abuse," citing motions last year for default rulings
against Endo International in opioids litigation.
Meta said in an email statement that the sanctions motion "is not
an accurate reflection of the record in this case," and that the
company is looking forward "to presenting the complete record to
the court." Gibson Dunn declined to provide a statement. Loeser and
Weaver declined to comment on their brief.
Facebook and its lawyers have previously told Chhabria, in hearings
and in filings, that the full record will show they have complied
with every discovery order issued by Special Master Daniel Garrie
and have acted throughout the case in good faith.
At the March 30 hearing, Gibson partner Rosemarie Ring, a recent
addition to Facebook's defense team, repeated those protestations
after Chhabria mused about a default judgment. "I truly believe
once there's a fuller understanding of what has happened here and
how things have unfolded, we will be able to convince you that not
only are terminating sanctions not warranted here, but no sanctions
are warranted," she said. Facebook, she noted, has not yet filed
its brief responding to plaintiff's assertions.
Chhabria responded that he is looking forward to reading that brief
-- it's due on April 11 - but warned, "It might be a little bit of
an uphill battle based on everything I've learned thus far."
Plaintiffs' sanctions motion highlighted alleged discovery abuses
in several areas that the judge previously cited as concerns,
including Facebook's assertion of privilege over documents from its
internal investigation of data-sharing with other apps and
Facebook's reluctance to produce all of the information it has
harvested about the eight named plaintiffs in the prospective class
action.
The motion asserts that Facebook improperly insisted it was
entitled to privilege over material from the app developer
investigation even after U.S. Magistrate Judge Jacqueline Corley,
who was initially appointed to oversee discovery, ruled that the
company could not broadly claim privilege. Facebook's contrary
arguments to the subsequently-appointed special discovery master,
Garrie, "were factually baseless and legally frivolous" and
"disobeyed" the magistrate's orders, plaintiffs said.
Plaintiffs also accused Facebook and Gibson Dunn of disregarding a
series of orders from Corley and Garrie to produce all of
Facebook's data on the named plaintiffs, even if that data was not
shared with app developers. (Plaintiffs allege that the company
harvested and shared highly personal and revealing data
-- such as photos and videos they posted or looked at; information
about their relationships, politics and religious views; and even
the actual words they used in messages -- without users' knowledge
or consent.)
"Between them, Judge Corley and Special Master Garrie have issued
more than a dozen orders related to the named plaintiffs' data,"
the sanctions motion said. "As of the date of this filing, Facebook
has not produced any documents," except for information Facebook
users can access on their own.
You can be sure that Facebook and Gibson Dunn will tell Chhabria a
different story when they file Facebook's brief on April 11. The
most recent case management report in the class action, which was
filed soon after the sealed sanctions brief, gives a taste of the
company's defense on the issue of the named plaintiffs' data. The
report quotes from a March 9 hearing in which the special master
profusely thanked Facebook for providing witnesses and written
submissions to explain the complexity of gathering the information
sought by plaintiffs. Facebook also said it has turned over
everything except for lawyer communications from the internal app
developer investigation.
Even Keller Rohrback and Bleichmar Fonti acknowledged in the joint
report that Facebook has changed its tone since Chhabria first
suggested sanctions in February - but the judge's most recent
statements suggest that a mere shift in tone isn't going to change
his mind.
We'll know in a week what else Facebook and Gibson Dunn have to
say. [GN]
META PLATFORMS: Suit Over Abuse of Dominant Position Pending
------------------------------------------------------------
Matthew Pryke, Esq., of Hamlins, disclosed that Meta Platforms,
Inc. (Meta) is the subject of a class action in the Competition
Appeal Tribunal (CAT) for alleged abuse of dominant position.
Dr Liza Lovdahl Gormsen has brought the application and contends
Meta has unfairly profited from the personal data of 45 million
Facebook users. The application claims Facebook occupied a dominant
position in the market with users forced to accept unfair terms and
conditions in order to use the platform.
Who is a 'user'?
The application claims a 'user' is someone who meets the following
criteria:
-- a natural person (i.e. not a company)
-- who is domiciled in the UK; and
-- who accessed their Facebook account at least once between 11
February 2016 and 31 December 2019.
The action is on an 'opt-out' basis which means a user is included
in the action unless they specifically choose not to be.
The basis of the action
Meta reportedly makes 98 per cent of its income through advertising
on its platforms. Adverts specifically target individual users
based off their own personal data which has been sold to the
advertisers. The applicant claims making Facebook free is not
adequate compensation and is disproportionate to the value gained
by Meta.
The action, therefore, comprises of three claims:
The so-called "Unfair Data Requirement" - Facebook, being the only
social media platform of its type in the claim period, abused its
dominant position by forcing users to provide personal data to
access the platform. Furthermore, the extent of the data collected
was disproportionate to the commercial objective.
The so-called "Unfair Price" - users' personal data was purchased
at an unfairly low price, especially in comparison to the high
revenue Meta generated through its sale. It is claimed had Facebook
been in a market with workable competition, the high profit margin
would not have been possible.
Other unfair trading conditions - the terms and conditions, aside
from being overly complex and long, failed to explain the extent of
the personal data collected by Facebook and how it would be
commercialised.
The applicant contends the loss to the users can be calculated by
reference to the commercial value of their personal data and
discounting the value of their access to Facebook. It would be down
to the judge to settle the amount of compensation due to each user,
but with approximately 45 million possible claimants the total
amount would be sizeable. This judgement will consider the real
value and cost of getting a digital service for 'free'.
This latest action serves as a useful reminder of how valuable
personal data is and all businesses should start by ensuring they
can answer 'yes' to these three questions:
-- Is your privacy policy accurate and up to date?
-- Is your privacy policy accessible and available when personal
data is accessed and stored?
-- Does your privacy policy give clear details of the intended use,
and potentially commercial use, of such personal data? [GN]
MIKE BLOOMBERG: Court Trims Claims in Wood's 2nd Amended Complaint
------------------------------------------------------------------
In the case, DONNA WOOD, et al., individually and on behalf of all
others similarly situated, Plaintiffs v. MIKE BLOOMBERG 2020, INC.,
Defendant, Case No. 1:20-CV-2489-LTS-GWG (S.D.N.Y.), Judge Laura
Taylor Swain of the U.S. District Court for the District of New
York granted in part and denied in part the Defendant's motion to
dismiss the Plaintiffs' Second Amended Complaint in part.
I. Background
In the action, Plaintiffs Donna Wood, Caelan Doherty, Max
Goldstein, Bridget Logan, James Kyle Newman, Zia Oram, Alan
Robinson, and Alexandra Marie Wheatley-Diaz, individually and on
behalf of all others similarly situated, bring the collective and
putative class action against Mike Bloomberg 2020, Inc. (the
"Campaign"), asserting claims under the Fair Labor Standards Act
(the "FLSA"), 29 U.S.C. Sections 201, et seq., and also asserting
claims for fraudulent inducement and promissory estoppel.
The Second Amended Complaint asserts additional state wage and hour
law claims against the Campaign, on behalf of Cheryl Baldwin,
Jonathan Barrio, Desmond Batts, Garrett Beckenbaugh, Cochiese
Bowers, Miles Ceplecha, Robin Ceppos, Melinda Cirilo, Jane Conrad,
Robert Cordova Jr., Christine Doczy, Rachel Douglas, Theresa
Edwards, Eliza Fink, Jason Finkelstein, Ilse Mendez Fraga, Josh
Fredrickson, Maria Gonzalez, Nathaniel Robert Groh, Brandi Harris,
Peter Kamara, Mack Kennedy, Madison Oliver Mays, Patrick McHugh,
Paul Monterosso, Rey Murphy, Frida Michelle Naranjo, Joseph Nestor,
Luke Nicholas, Josephine Olinger, Alec Silvester, Daniel Smith,
Chris Soth, Audra Tellez, Carlos Torres, Elliott Tricotti, Gloria
Tyler, Lakisha Watson-Moore, Jesse Weinberg, Clem Wright, Anoosh
Yaraghchian, and Jesus Zamora, individually and behalf of all those
similarly situated.
Michael Bloomberg announced his candidacy for President of the
United States on Nov. 24, 2019. In January 2020, the Campaign,
began hiring Field Organizers and other employees to assist in its
efforts to promote Mr. Bloomberg's candidacy and secure the
Democratic Presidential nomination. Because Mr. Bloomberg was a
late entry into the Presidential race, the Campaign knew that it
would be difficult to hire sufficient staff within the time
necessary in order to prepare for the Democratic primary.
Therefore, to incentivize individuals to apply to work for the
Campaign, Mr. Bloomberg and Campaign officials promised that
employees would have guaranteed employment, including wages and
healthcare and other benefits, through November 2020. Employees
were promised continued employment through the general election
even if Mr. Bloomberg did not secure the Democratic nomination. The
Plaintiffs allege that these promises were reiterated by Mr.
Bloomberg at a December 2019 Campaign event in North Carolina, by
Campaign officials in public statements and media interviews, and
by director-level employees and managers via email and during
interviews for prospective employees.
The Plaintiffs are former Campaign Field Organizers ("FOs") who
accepted employment with the Campaign between January and February
2020, foregoing alternative employment and/or educational
opportunities. At the initiation of their employment, each
Plaintiff signed an offer letter stipulating the terms of their
employment. The offer letters included the amount of compensation,
and timetable for payment, that the individuals would receive as
employees of the Campaign, confirmed eligibility for the Campaign's
employee benefit plans, and specified that the Campaign would
reimburse certain out-of-pocket relocation expenses. Each offer
letter contains the electronic signature of the employee and date
signed.
As Field Organizers, the Plaintiffs' primary duty was to make
telephone calls on behalf of the Campaign to potential voters,
promoting Mr. Bloomberg's candidacy. Their other core
responsibilities included door-to-door canvassing and recruiting
volunteers to join the Campaign's efforts. They also participated
in all-state conference calls led by the Campaign's Headquarters
office in New York City on at least a weekly basis and communicated
via email with Campaign officials daily. The regularly worked in
excess of 40 hours per week and did not receive overtime
compensation.
On March 4, 2020, Mr. Bloomberg withdrew from the 2020 Presidential
race. Beginning on March 9, 2020, the Campaign terminated the
Plaintiffs' employment. Th Plaintiffs allege that their
terminations breached the Campaign's promise of continued
employment, pay, and benefits through November 2020. They allege
that they were damaged "by losing their jobs with the Campaign,
losing their income, and losing their healthcare and other
benefits" in addition to "leaving their prior jobs" in order to
work for the Campaign.
Based on the Campaign's alleged failure to pay overtime
compensation, to which the Plaintiffs allege they were entitled
under the FLSA, and the alleged harms stemming from their
terminations in March 2020, the Plaintiffs bring the action on
behalf of themselves and all others similarly situated, asserting
claims under the FLSA and for fraudulent inducement and promissory
estoppel. The Plaintiffs seeks declaratory and monetary relief,
including unpaid overtime pay and compensatory and punitive
damages.
II. Discussion
In the SAC, the Plaintiffs assert three causes of action pertinent
to the motion before the Court. They assert that the Defendant
failed to pay the Plaintiffs and other similarly situated
individuals overtime wages to which they were entitled under the
FLSA. The Plaintiffs also assert claims for fraudulent
misrepresentation and promissory estoppel premised on their
allegation that the Defendant falsely promised them continued
employment through November 2020 but reneged on that promise when
it terminated their employment in March 2020.
The Defendant moves, pursuant to Federal Rule of Civil Procedure
12(b)(6), to dismiss the SAC in part for failure to state a claim,
arguing that: 1) the Plaintiffs were not entitled to overtime wages
under the FLSA because the FLSA does not apply to the Campaign, nor
does it apply to the Plaintiffs individually as employees of the
Campaign; 2) the Plaintiffs' claims for fraudulent inducement and
promissory estoppel are precluded as a matter of law because they
were at-will employees of the Campaign; and 3) if not precluded as
a matter of law from asserting fraudulent inducement and promissory
estoppel claims, the Plaintiffs have nevertheless failed to
plausibly allege such claims.
A. Consideration of Documents as Integral to the Complaint
In support of the Campaign's motion to dismiss the Second Amended
Complaint, the Defendant has proffered the Declaration of Katherine
Sayers and 95 accompanying attachments as exhibits. he documents
attached to the Sayers Declaration include individual offer letters
of employment with their corresponding attachments, executed by
each of the Plaintiffs, as well as such documents executed by the
plaintiffs who assert claims under state wage and hour laws in the
Second Amended Complaint. The attachments also include a copy of
the Campaign's Employee Handbook with forms acknowledging receipt
of the Handbook executed by each of the Plaintiffs and the
individuals bringing claims under state wage and hour laws in the
Second Amended Complaint.
The Plaintiffs argue that the Court may not consider the documents
attached to the Sayers Declaration because they are not referenced
in the Second Amended Complaint and they did not rely on the
documents in drafting their allegations.
Having considered the Plaintiffs' arguments carefully, Judge Swain
finds she may consider the signed offer letters of employment
submitted by the Defendant and attached as exhibits to the Sayers
Declaration in connection with the pending motion to dismiss.
Although the Plaintiffs neither attached these documents to the
Complaint, nor referenced the offer letters explicitly in their
allegations, she says, the Plaintiffs had notice of these documents
and relied on the "terms and effect of" these documents "in
drafting the Complaint." The Plaintiffs are seeking to recover
unpaid wages for hours they worked for the Campaign under the
FLSA.
The Plaintiffs' decision to "carefully avoid" explicit mention of
the offer letters "does not make them any less integral to the
complaint." Nor do their conclusory arguments in their memorandum
of law, that they "have not had the opportunity to cross examine"
the documents and that the parties disagree as to the impact of the
documents at issue on their substantive claims, preclude the
Court's consideration of the letters.
For essentially the same reasons, Judge Swain will consider the
Campaign's Employee Handbook and the accompanying acknowledgement
forms signed by the Plaintiffs and attached as exhibits to the
Sayer Declaration in connection with the motion to dismiss. She
finds that the Employee Handbook contains information regarding the
Plaintiffs' employment relationships with the Campaign, including
reimbursement of certain business expenses and other benefits, the
terms of which were relied upon by the Plaintiffs in drafting the
Second Amended Complaint.
B. Federal Wage and Hour Law Claim: First Cause of Action
In their first cause of action, the Plaintiffs assert a claim
against Defendant for denial of overtime pay in violation of the
FLSA, alleging that they regularly worked more than 40 hours per
week during their employment with the Campaign and were not
compensated for such excess hours. The Defendant moves to dismiss
the Plaintiffs' claim for unpaid overtime compensation under
section 207(a)(1) of the FLSA, arguing that the Campaign was not
subject to that statute.
At this stage of the proceedings, Judge Swain holds that the
Plaintiffs' account of their job responsibilities, read in the
light most favorable to them, plausibly demonstrates that they were
"engaged in commerce" under the FLSA and entitled to overtime
compensation for their work performed in excess of 40 hours per
week. The Plaintiffs allege that they used the telephone "to
communicate across state lines with prospective voters,"
"regularly," as part of their "primary duties" to "promote Mr.
Bloomberg's candidacy." They further allege that they used
telephones to "communicate multiple times a week" with Campaign
officials at the New York headquarters including through
"nationwide telephone conference calls," as well as "daily" email
communications. Although the legal standards as to when interstate
activity is more than "sporadic or occasional" and thus supports
coverage under the FLSA remains somewhat unclear, the Plaintiffs'
allegations that they utilized instrumentalities of commerce daily
with voters "across state lines" as part of their "primary job
duties" are sufficient at the motion to dismiss stage.
For these reasons, Judge Swain denies the Defendant's motion
insofar as it seeks dismissal of the Plaintiffs' claim for overtime
compensation under the FLSA as articulated in the Second Amended
Complaint. Given that she has found that the Plaintiffs have
plausibly stated a claim for individual coverage under the FLSA,
Judge Swain declines to address the parties' arguments as to
whether the Plaintiffs have adequately pled that enterprise
coverage under the FLSA also existed.
C. Fraudulent Inducement Claim: Sixteenth Cause of Action
The Plaintiffs assert that the Defendant made a series of false
statements concerning the intended duration of their employment
that induced them to accept or continue employment with the
Campaign. The Defendant moves to dismiss the Plaintiffs' fraudulent
inducement claim, arguing that their at-will employment status
precludes their claim and, in the alternative, that they have
failed to plead the elements of a fraudulent inducement claim
adequately.
Judge Swain granted with prejudice the Defendant's motion to
dismiss as to the Plaintiffs' claim for fraudulent inducement. She
finds that (i) although the Plaintiffs do not allege that they were
employees at-will in their Second Amended Complaint, the signed
offer letters of employment which are integral to their claims,
specify that their Plaintiffs' employment status was at will; (ii)
claims of fraudulent inducement based on future promises of
continued employment in an at-will employment context are not
cognizable under New York law; (iii) any portion of the Plaintiffs'
claim based on oral representations preceding the offer letters
fails as a matter of law; and (iv) the Plaintiffs have failed to
allege, with any degree of specificity, any actual promise of
guaranteed employment made to any particular Plaintiff, and relied
upon to his or her detriment, prior to their acceptance of the
Campaign's offer letter.
D. Promissory Estoppel Claim: Seventeenth Cause of Action
In support of their promissory estoppel cause of action, the
Plaintiffs allege that the Defendant clearly and unambiguously
promised them continued employment, pay, and benefits through
November 2020 but reneged on these promises by terminating their
employment in March 2020 when Michael Bloomberg withdrew from the
Presidential race. They allege that they reasonably relied on these
promises to their detriment by resigning from other employment
and/or foregoing other employment or educational opportunities to
work for the Campaign.
The Defendant moves to dismiss the Plaintiffs' claim for promissory
estoppel, arguing that claims for promissory estoppel are not
recognized in the employment context under New York law and, in the
alternative, that the Plaintiffs have failed to state a claim.
Judge Swain opines that the Plaintiffs have failed to plausibly
allege facts framing a viable claim for promissory estoppel in the
employment context, and their claim fails for additional reasons.
First, to the extent to which the Plaintiffs allege that they
relied on the Campaign's promises of guaranteed employment after
accepting the Campaign's offer letters, the Plaintiffs' promissory
estoppel claim fails for the same reason as their fraudulent
inducement claim. Second, to the extent to which the Plaintiffs
allege that they relied on promises, made prior to their receipt of
the offer letters specifying their at-will status, the Plaintiffs
have failed to identify a clear and unambiguous promise of
guaranteed employment made to any specific Plaintiff, upon which
that Plaintiff relied to his or her detriment.
For these reasons, the Defendant's motion to dismiss is granted
with prejudice as to the Plaintiffs' claim for promissory
estoppel.
III. Conclusion
For the reasons she discussed, Judge Swain granted the Defendant's
motion pursuant to Federal Rule of Civil Procedure 12(b)(6) to
dismiss the Second Amended Complaint to the extent that the
Plaintiffs' fraudulent inducement and promissory estoppel claims
(Counts 16 and 17) are dismissed with prejudice, and the motion is
denied with respect to the Plaintiffs' FLSA claims. She need not
reach the Defendant's motion in the alternative to strike the
Second Amended Complaint's class allegations because the
Plaintiffs' fraudulent inducement and promissory estoppel claims
are hereby dismissed.
Judge Swain denied the Plaintiffs' request for leave to amend their
allegations as to their fraudulent inducement and promissory
estoppel claims because the at-will terms of their contracts
rendered reliance on the alleged representations of guaranteed
continued employment unreasonable as a matter of law, and thus any
further opportunity to amend would be futile.
The case remains referred to Magistrate Judge Gorenstein for
general pretrial management.
The Memorandum Order resolves docket entry no. 110.
A full-text copy of the Court's March 25, 2022 Memorandum Opinion &
Order is available at https://tinyurl.com/5ezvs88t from
Leagle.com.
MIKE BLOOMBERG: S.D. New York Dismisses Sklair's 1st Amended Suit
-----------------------------------------------------------------
In the case, ALEXIS SKLAIR, STERLING RETTKE, NATHANIEL BROWN, BRIAN
GILES, JOCELYN REYNOLDS, and CARYN AUSTEN, on behalf of themselves
and all others similarly situated, Plaintiffs v. MIKE BLOOMBERG
2020, INC., and MICHAEL BLOOMBERG, Defendants, Case No.
1:20-CV-2495-LTS-GWG (S.D.N.Y.), Judge Laura Taylor Swain of the
U.S. District Court for the Southern District of New York granted
in full the Defendants' motion to dismiss the First Amended
Complaint.
I. Introduction
In the action, Plaintiffs Alexis Sklair, Sterling Rettke, Nathaniel
Brown, Brian Giles, Jocelyn Reynolds, and Caryn Austen,
individually and on behalf of all others similarly situated, bring
this putative class action against Defendants Mike Bloomberg 2020,
Inc. (the "Campaign") and Michael Bloomberg, asserting claims for
fraudulent inducement and promissory estoppel.
The case is before the Court on the Defendants' motion to dismiss
the Plaintiffs' First Amended Complaint, pursuant to Federal Rule
of Civil Procedure 12(b)(6), for failure to state a claim upon
which relief can be granted. They move in the alternative to strike
the class allegations with respect to the Plaintiffs' claims
pursuant to Federal Rule of Civil Procedure 23(d)(1)(D). The Court
has jurisdiction of the Plaintiffs' claims under 28 U.S.C. section
1332(d)(2).
II. Background
Michael Bloomberg announced his candidacy for President of the
United States on Nov. 24, 2019. Because his announcement came "just
months" before votes would be cast in the Democratic primary, the
Campaign knew it would need to incentivize applicants to join its
efforts rather than pursue employment with other political
campaigns. Accordingly, Mr. Bloomberg and members of the Campaign
promised field staffers and field staff applicants that "the nature
of the staffers' work would involve both primary and general
election work, either working directly for the Campaign or another
entity established or funded by Bloomberg, regardless of whether
Bloomberg won the nomination." The Defendants also promised the
Campaign's field staffers that Mr. Bloomberg and the Campaign "had
committed the funds necessary to keep field offices open through
November 2020" and "employ the staffers on the general election."
The Plaintiffs allege that that these promises were made by the
Campaign's hiring managers during recruitment efforts and
interviews, reiterated by Mr. Bloomberg and Campaign
representatives in public statements, and reinforced by Campaign
representatives to employees in the days following Mr. Bloomberg's
withdrawal from the Presidential race on March 4, 2020.
The Plaintiffs are former Campaign field organizers who accepted
employment with the Campaign in late 2019 and early 2020, foregoing
alternative employment and/or educational opportunities. At the
initiation of his or her employment, each Plaintiff entered into an
employment agreement with the Campaign that specified that each
staffer was an "at-will" employee and noted that the Campaign "may
terminate his or her employment at any time, with or without notice
and with or without cause, for any reason or for no reason." These
employment agreements also contained a no-oral modification clause
stating: "No statement varying any of the terms of this offer
letter will be enforceable unless set forth in a writing signed by
a duly authorized officer of the Organization." Mr. Bloomberg was
not individually a party to these employment agreements.
On March 4, 2020, Mr. Bloomberg withdrew from the 2020 Presidential
race. On March 20, 2020, the Campaign terminated the Plaintiffs'
employment. The Plaintiffs allege that their terminations broke the
Campaign's promises of providing the opportunity to work on the
general election and continued employment through November 2020.
They allege that the opportunity to perform "both primary and
general election work" was material to their decisions to work for
the Campaign, and they would not have accepted their positions with
the Campaign in the absence of the Campaign's representations.
III. Discussion
In the FAC, the Plaintiffs assert claims, on behalf of themselves
and all others similarly situated, for fraudulent misrepresentation
and promissory estoppel premised on their allegation that the
Defendants falsely promised them continued employment through the
November 2020 general election but reneged on the promise when the
Campaign terminated their employment on March 20, 2020.
The Defendant moves, pursuant to Federal Rule of Civil Procedure
12(b)(6), to dismiss the FAC for failure to state a claim, arguing
that: 1) the Plaintiffs' claims for fraudulent inducement and
promissory estoppel are precluded as a matter of law because they
were at-will employees of the Campaign; and 2) if not precluded as
a matter of law, the Plaintiffs have nevertheless failed to
plausibly allege claims for fraudulent inducement and promissory
estoppel against the Campaign and against Mr. Bloomberg,
individually.
A. Consideration of Documents Incorporated by Reference into the
First Amended Complaint
In support of the Defendants' motion to dismiss the First Amended
Complaint, the Defendants submit the Declaration of Katherine
Sayers and eleven accompanying attachments as exhibits. The
exhibits include offer letters of employment, executed by each of
the Plaintiffs. The exhibits also include a copy of the Campaign's
Employee Handbook and employee acknowledgement forms signed by
Plaintiffs Sklair, Rettke, Brown, Giles, and Reynolds.
The Plaintiffs do not contest the Court's consideration of the
offer letters, nor the Employee Handbook and the accompanying
employee acknowledgement forms. Judge Swain finds it may consider
these documents in connection with the Defendants' motion to
dismiss. The offer letters are incorporated by reference into the
First Amended Complaint because the Plaintiffs' allegations refer
explicitly to the employment agreements with the Campaign that
categorized them as "at-will" employees and quote directly from the
offer letters' provision stating the Campaign "may terminate their
employment at any time, with or without notice and with or without
cause, for any reason or for no reason."
B. Fraudulent Inducement Claim
The Plaintiffs assert that the Defendants made a series of
fraudulent statements that induced them to accept employment, and
remain employed, with the Campaign. The Defendants move to dismiss
the Plaintiffs' fraudulent inducement claim, arguing that (1)the
Plaintiffs' at-will employment status precludes their claim because
reliance was unreasonable as a matter of law, and (2) the
Plaintiffs have failed to adequately plead the remaining elements
of a fraudulent inducement claim.
Judge Swain opines that the Plaintiffs have failed to adequately
plead reasonable reliance on the Defendants' alleged
misrepresentations. She finds that (i) the Plaintiffs' alleged
reliance on the Defendants' promises was unreasonable because their
employment agreements specified that their employment was at-will;
(ii) because the Plaintiffs were terminated after Mr. Bloomberg
withdrew from the primary election in March 2020, they were not
employed for long enough to redirect their efforts toward the
general election; (iii) the Plaintiffs have put forth no
allegations in support of their argument that the nature of their
employment, rather than its duration, was different than what was
promised them; and (iv) the Plaintiffs' claim fails for the
additional reason that none of the cited statements constituted a
promise to employ any particular individual, let alone to employ
that individual for a certain duration of time. She need not
consider the parties' arguments as to whether the Plaintiffs have
also failed to plead adequate damages.
Therefore, the Defendants' motion to dismiss is granted with
prejudice as to the Plaintiffs' claims for fraudulent inducement
against the Campaign and Mr. Bloomberg, individually. The
Plaintiffs will not be granted leave to amend their complaint
because their claim for fraudulent inducement is not cognizable
under New York law--any reliance by the Plaintiffs on the
Defendants' promises of future employment was unreasonable as a
matter of law. The Plaintiffs' attempt to recast Defendants' future
promises of continued employment as statements of present fact and
present intentions amounts to an improper attempt to characterize a
potential contract claim as one based in fraud.
C. Promissory Estoppel Claim
The Plaintiffs claim that the Defendants clearly and unambiguously
promised them continued employment through the November 2020
general election but reneged on this promise by terminating their
employment in March 2020 when Mr. Bloomberg withdrew from the
Presidential race. They allege that they reasonably relied on the
promise to their detriment by resigning from other employment
and/or foregoing other employment or educational opportunities to
work for the Campaign.
The Defendants move to dismiss the Plaintiffs' claim for promissory
estoppel, arguing that (1) the Plaintiffs' claim is precluded as a
matter of law because at-will employees cannot reasonably rely on
promises of continued employment, and (2) the Plaintiffs have also
failed to plead an unconscionable injury.
Judge Swain opines that (i) the promises at issue concerned the
duration of the Plaintiffs' employment, and therefore were not
separate from but, rather, were central to the employment
relationship; (ii) the Plaintiffs' promissory estoppel claim fails
for the same reason as their fraudulent inducement claim, namely
that they are unable to plausibly plead reasonable reliance on the
Defendants' representations of continued employment when they were
at-will employees of the Campaign; and (iii) the Plaintiffs have
not adequately alleged reasonable reliance, nd there is no need to
reach the Defendants' argument as to whether the Plaintiffs have
also failed to plead an unconscionable injury.
Thus, the Defendants' motion to dismiss is granted with prejudice
as to the Plaintiffs' claims for promissory estoppel against the
Campaign and Mr. Bloomberg, individually. The Plaintiffs will not
be granted leave to amend their allegations as to this claim
because any reliance on the alleged oral representations of
continued employment was unreasonable as a matter of law.
IV. Conclusion
For the reasons she discussed, Judge Swain granted the Defendants'
motion to dismiss pursuant to Federal Rule of Civil Procedure
12(b)(6), and dismissed with prejudice the Plaintiffs' fraudulent
inducement and promissory estoppel claims against the Campaign and
Mr. Bloomberg. The Court need not reach the Defendants' motion in
the alternative to strike the First Amended Complaint's class
allegations.
The Memorandum Opinion and Order resolved docket entry no. 51. The
Clerk of Court is respectfully directed to enter judgment
dismissing the First Amended Complaint and close the case.
A full-text copy of the Court's March 25, 2022 Memorandum Opinion &
Order is available at https://tinyurl.com/4k4sjxx3 from
Leagle.com.
NATIONAL PUBLIC: Discloses Subscribers' Identities, Dawood Alleges
------------------------------------------------------------------
MAHMOOD DAWOOD on behalf of himself and all other similarly
situated v. NATIONAL PUBLIC RADIO, INC., Case No. 2:22-at-00345
(E.D. Cal., April 1, 2022) arises from the Defendant's practice of
knowingly disclosing to a third party, Meta Platforms, data
containing its digital subscribers' (i) personally identifiable
information or Facebook ID ("FID") and (ii) the computer file
containing video and its corresponding URL viewed ("Video Media").
Mr. Dawood files this complaint against Defendant National Public
Radio, Inc. for violation of the federal Video Privacy Protection
Act.
Like other businesses with an online presence, Defendant allegedly
collects and shares the personal information of visitors to its
website and mobile application (App) with third parties. The
Defendant does this through cookies, software development kits
("SDK"), and pixels. In other words, NPR's digital subscribers have
their personal information disclosed to Defendant's third-party
business partners.
The Facebook pixel is a code Defendant installed on its website
allowing it to collect subscribers' data. More specifically, it
tracks when digital subscribers enter NPR's website (www.npr.org)
or App and view Video Media. NPR's website tracks and discloses to
Facebook the digital subscribers' viewed Video Media, and most
notably, the digital subscribers' FID. This occurs even when the
digital subscriber has not shared (nor consented to share) such
information.
Importantly, the Defendant shares the Personal Viewing Information
-- i.e., digital subscribers' unique FID and video content viewed
-- together as one data point to Facebook. Because the digital
subscriber's FID uniquely identifies an individual's Facebook
subscriber account, Facebook—or any other ordinary person -- can
use it to quickly and easily locate, access, and view digital
subscribers' corresponding Facebook profile. Put simply, the pixel
allows Facebook to know what Video Media one of its subscribers
viewed on NPR's website or App.
Thus, without telling its digital subscribers, Defendant profits
handsomely from its unauthorized disclosure of its digital
subscribers' Personal Viewing Information to Facebook. It does so
at the expense of its digital subscribers' privacy and their
statutory rights under the VPPA, the lawsuit says.
National Public Radio is an American privately and publicly funded
non-profit media organization headquartered in Washington, D.C.,
with its NPR West headquarters in Culver City, California.[BN]
The Plaintiff is represented by:
Alex R. Straus, Esq.
MILBERG COLEMAN BRYSON
PHILLIPS GROSSMAN, PLLC
280 S. Beverly Drive
Beverly Hills, CA 90212
Telephone: (917) 471-1894
Facsimile: (865) 522-0049
E-mail: astraus@milberg.com
NCINO INC: Faces Antitrust Suit in E.D. N.C.
--------------------------------------------
nCino, Inc. disclosed in its Form 10-K Report for the fiscal year
ended December 31, 2021, filed with the Securities and Exchange
Commission on March 31, 2022, that on March 12, 2021, a putative
class action complaint was filed in the United States District
Court for the Eastern District of North Carolina alleging a
contract, combination or conspiracy between and among the company,
Live Oak Bancshares, Inc. and Apiture, Inc. not to solicit or hire
each other's employees in violation of Section 1 of the Sherman
Act.
The complaint seeks treble damages and additional remedies,
including restitution, disgorgement, reasonable attorneys' fees,
the costs of the suit, and pre-judgment and post judgment
interest.
nCino is a provider of cloud-based software for financial
institutions, empowering banks, credit unions, and independent
mortgage banks with the technology they need to meet ever-changing
client expectations and regulatory requirements, gain increased
visibility into their operations and performance, replace legacy
systems and operate digitally and more competitively.
NEW PERSPECTIVE: Woods Seeks Unpaid Wages & Back Pay Under FLSA
---------------------------------------------------------------
LATERRA WOODS, on behalf of herself and all others similarly
situated v. NEW PERSPECTIVE SENIOR LIVING, LLC, Case No.
2:22-cv-00412 (E.D. Wis., April 1, 2022) is a collective and class
action brought by Plaintiff Laterra Woods, on behalf of herself and
all other similarly situated current and former employees who work
or have worked as Caregivers for New Perspective pursuant to the
Fair Labor Standards Act of 1938 for purposes of obtaining relief
under the FLSA for unpaid wages, back pay, liquidated damages,
costs, attorneys' fees, and/or any such other relief that the Court
may deem appropriate.
At times since April 1, 2022, the Plaintiff and the putative
collective and class members have been employed as caregivers by
New Perspective in the State of Wisconsin and the State of
Minnesota. During their respective employments at New Perspective,
they allegedly suffered identical wage losses under New
Perspective's illegal pay policies and practices in violation of
the Fair Labor Standards Act of 1938 and Wisconsin law.
Laterra Woods is an adult resident of Waukesha County in the State
of Wisconsin.
New Perspective Senior Living offers independent & assisted senior
living as well as memory care community options. Explore our senior
living communities.[BN]
The Plaintiff is represented by:
Larry A. Johnson, Esq.
Summer Murshid, Esq.
Timothy P. Maynard, Esq.
HAWKS QUINDEL, S.C.
222 East Erie, Suite 210
P.O. Box 442
Milwaukee, WI 53201-0442
Telephone: (414) 271-8650
Facsimile: (414) 271-8442
E-mail: ljohnson@hq-law.com
smurshid@hq-law.com
tmaynard@hq-law.com
NEW YORK: Faces Class Action Over Mental Health Services
--------------------------------------------------------
Shiva Pedram, of Proskauer Rose LLP, in an article for Mondaq,
reports that Proskauer, in conjunction with attorneys from
Children's Rights, Disability Rights New York, and the National
Health Law Program, have filed a class action lawsuit against New
York officials in response to the mental health crisis arising from
New York's failure to provide, in sufficient quantity, frequency,
and duration, home and community-based mental health services that
are medically necessary to permit children with mental health
issues to remain safely at home in their communities.
The complaint is brought on behalf of Medicaid-eligible children
under the age of 21 with mental health conditions for whom
intensive home and community-based mental and behavioral health
services are medically necessary. In New York, more than two
million children and adolescents are enrolled in Medicaid, with
thousands of children requiring home and community-based mental
health services.
As detailed in the complaint, the mental health treatment needs of
New York's Medicaid-eligible youth have long been at crisis levels,
with more than 1 in 10 teenagers suffering a major depressive
episode, surges of youth visiting emergency rooms due to mental
health crises, and suicide being a leading cause of death for youth
aged 5-19.
There are tens of thousands of Medicaid-eligible children in New
York who require intensive home and community-based services, but
only a fraction actually receive the services they need. And for
the few children who do receive these medically necessary services,
they often have to wait weeks or months before being seen by a
mental health professional in violation of applicable law.
Without these services, families often have to rely on hospital
emergency rooms to provide short-term care that fails to address
children's underlying conditions. Too often, police officers are
the only available emergency responders to children in mental
distress.
The complaint asserts that New York's failure to provide such
mental health services violates the Medicaid Act, Title II of the
Americans with Disabilities Act, and Section 504 of the
Rehabilitation Act, and, as a result, Medicaid-eligible children
are unnecessarily segregated or placed at serious risk of
institutionalization, which significantly disrupts their lives and
harms their mental health, education, families and relationships.
The class representatives are New York children who have suffered
the consequences of inadequate access to intensive home and
community-based mental health services, and, consequently, have
cycled in an out of institutions, hospitals and residential
facilities as an inadequate alternative to address their ongoing
mental health issues.
The complaint seeks permanent injunctive relief requiring New York
to establish and implement policies and practices to ensure the
timely provision of intensive home and community-based mental
health services for children for whom such services are medically
necessary; to promptly make available such services to
Medicaid-eligible children; and that New York provide the class
members with such medically necessary services in the most
integrated setting appropriate to their needs.
As reflected in the complaint, the benefits of home and
community-based mental health services have been borne out by
expert medical opinion and court decisions across the country. Such
services result in the best long-term outcomes for children,
including significant improvement in their quality of life,
improved school attendance and performance, increases in emotional
and behavioral strength, more stable living situations, reduced
suicide attempts, and fewer contacts with law enforcement.
The Proskauer team, which is led by Steven H. Holinstat, Co-Head of
the Fiduciary Litigation Group, includes Antonieta P. Lefebvre,
Shiva Pedram, and Jacob E. Wonn. [GN]
OREGON: Judge Certifies Class Action Over Prison COVID Response
---------------------------------------------------------------
Conrad Wilson, writing for OPB, reports that a federal judge has
certified a class-action lawsuit in Oregon over state leaders'
response to the COVID-19 pandemic inside its prisons.
The decision is thought to be the first ruling of its kind in the
nation where a federal judge has signed off on prisoners suing for
damages over a state's pandemic response. It opens the door to a
potentially massive liability that could cost Oregon millions of
dollars to resolve.
"This really is quite a groundbreaking order, and decision, and it
could potentially be a model for advocates in other parts of the
country where they're having similar problems," said Corene
Kendrick, deputy director of the American Civil Liberty Union's
National Prison Project.
In Oregon, 45 people in the Department of Corrections custody have
so far died after testing positive for COVID-19, and more than
5,000 people have tested positive for the virus while in custody.
"The fears we had in April 2020 about how incarcerated people would
be affected by the pandemic have sadly come to pass," attorneys
David Sugarman and Juan Chavez, who represent those in custody,
said in a written statement. "The impact of this disease and its
mishandling by those in charge has been devastating to people in
prison."
A group of adults in custody who contracted COVID-19 first sued the
state in April 2020, alleging culpability by Gov. Kate Brown,
Corrections Department Director Colette Peters and Health Authority
Director Patrick Allen, among other state officials. The lawsuit
focuses on how the state centralized decision-making for all
prisons through the Department of Corrections' agency operations
center. By signing off on policies and procedures, the state's
prison system created a top-down approach to managing the virus,
the inmates argued through their attorneys.
In a 54-page ruling on April 1, U.S. Magistrate Judge Stacie
Beckerman signed off on two separate classes. One is a wrongful
death class that will include the estates of 45 adults who died in
the state's custody and "for whom COVID-19 caused or contributed to
their death." The other is a damages class that would include
anyone incarcerated after Feb. 1, 2020, who was diagnosed with
COVID-19 at least 14 days after they were incarcerated.
The state could appeal Beckerman's ruling, settle, or take the
cases to trial. Spokespersons for the governor's office, the Oregon
Department of Corrections and the state's Department of Justice
declined to comment on the pending litigation.
Attorneys bringing the lawsuit have already used it to some success
by securing vaccines for adults in custody in February 2021. At the
time, vaccines were not widely available. The lawyers stated that
people in custody should be treated like other congregate care
settings.
In her ruling on April 1, Beckerman said she found the theory of
the case was sufficient to certify classes. Other questions, she
wrote, could only be answered by a jury, should the cases go to
trial. For example, Beckerman did not answer whether the state
acted with deliberate indifference, or whether that indifference
was the reason thousands were sickened with COVID-19. [GN]
PEPSICO: Faces Overtime Class Action in New Jersey
--------------------------------------------------
Beverly Banks, writing for Law360, reports that a PepsiCo employee
accused the soft drink giant on April 4 in New Jersey federal court
of failing to pay adequate wages and overtime after a ransomware
attack crippled its timekeeping system. [GN]
RA MEDICAL: Final Hearing on Derr Suit Settlement Set for June 13
-----------------------------------------------------------------
The U.S. District Court for the Southern District of California
granted on February 11, 2022, preliminary approval of a settlement,
scheduled a hearing on final approval of the settlement for June
13, 2022, and denied a pending motion to dismiss without prejudice,
in the securities class action complaint captioned Derr v. Ra
Medical Systems, Inc., et al., (Civil Action no. 19CV1079 LAB NLS),
according to Ra Medical Systems, Inc.'s Form 10-K Report for the
fiscal year ended December 31, 2021, filed with the Securities and
Exchange Commission on March 23, 2022.
On June 7, 2019, a putative securities class action complaint
captioned Derr v. Ra Medical Systems, Inc., et al., (Civil Action
no. 19CV1079 LAB NLS) was filed in the U.S. District Court for the
Southern District of California against the company, certain
current and former officers and directors, and certain underwriters
of the company's initial public offering.
Following the appointment of a lead plaintiff and the filing of a
subsequent amended complaint, the lawsuit alleges that the
defendants made material misstatements or omissions in the
company's registration statement in violation of Sections 11 and 15
of the Securities Act and between September 27, 2018 and November
27, 2019, inclusive, in violation of Sections 10(b) and 20(a) of
the Exchange Act. On March 11, 2020, lead plaintiffs voluntarily
dismissed the underwriter defendants without prejudice.
On March 13, 2020, defendants filed a motion to dismiss the amended
complaint. On March 24, 2021, the court issued an order granting
defendants' motion to dismiss claims under the Securities Act in
full and certain claims under the Exchange Act and denying
defendants' motion to dismiss certain Exchange Act claims.
Plaintiffs filed their second amended complaint on April 19, 2021,
realleging the Securities Act claims and certain of the previously
dismissed Exchange Act claims.
On June 10, 2021, defendants moved to dismiss the second amended
complaint. On November 12, 2021, following a private settlement
mediation with the lead plaintiffs, the parties executed a
stipulation of settlement that resolved the claims asserted in the
securities class action.
The settlement provides for a payment to the plaintiff class of
$10.0 million. On March 18, 2022, the company paid approximately
$0.6 million towards the settlement and is working with its
insurers to determine if it must pay an additional amount, up to an
additional $0.4 million (total of $1.0 million), to satisfy its
self-insured retention/deductible. Its insurers will pay the
remaining amount towards the settlement. The proposed settlement
requires both preliminary and final approval by the court.
On February 11, 2022, the court granted preliminary approval of the
settlement, scheduled a hearing on final approval of the settlement
for June 13, 2022, and denied the pending motion to dismiss without
prejudice. Should the court not approve the proposed settlement or
if the proposed settlement otherwise does not become final, the
parties will be returned to their litigation postures prior to the
execution of the stipulation of settlement.
Ra Medical Systems, Inc. is a medical device company leveraging its
advanced excimer laser-based platform for use in the treatment of
vascular immune-mediated inflammatory diseases. It designs,
develops, and produces medical devices. RA Medical Systems serves
patients in the United States.
RAM PAYMENT: Antico's Bid to Certify Class Denied Without Prejudice
-------------------------------------------------------------------
In the case, FRANCES ANTICO, Executrix of the Estate of June
Germinario, Plaintiff v. RAM PAYMENT, L.L.C., et al., Defendants,
Civil Action No. 20-12130 (CPO) (D.N.J.), Judge Christine P.
O'Hearn of the U.S. District Court for the District of New Jersey
denied Antico's motion to certify Class without prejudice.
I. Procedural Background
The Plaintiff filed her initial Complaint in the Superior Court of
New Jersey, Law Division, Burlington County, on March 22, 2019. The
Defendants removed the case to the Court on July 11, 2019, but the
Court granted the Plaintiff's Motion for Remand to the Superior
Court on April 20, 2020.
The Plaintiff subsequently served Defendants Reliant Account
Management, L.L.C., Reliant Account Management Systems, L.L.C., and
Account Management Systems, L.L.C. between Aug. 3, 2020, and Aug.
4, 2020. The Defendants then removed the case to the Court for the
second time on Sept. 1, 2020.
On Sept. 9, 2020, the Plaintiff filed an Amended Complaint, and
filed the Motion to Certify Class presently before the Court on
Oct. 23, 2020. On Aug. 19, 2019, the Plaintiff moved to Substitute
a Party following the death of June Germinario. The Executrix of
June Germinario's Estate, Francis Antico, was substituted as the
plaintiff on March 16, 2022.
The parties proceeded with discovery, during which time they
notified the Court that they had new information that may impact
the Motion and requested to file supplementary briefing. The Court
granted the request and each party filed a supplemental brief.
II. Factual Background
The first group of companies, electronic payment processing
companies and money transmitters, are designated the "Principal
Defendants." The group includes Defendants Reliant Account
Management L.L.C. (California) ("RAM CA"); Reliant Account
Management, L.L.C. (Tennessee) ("RAM TN"), now known as Account
Management Systems, L.L.C. ("AMS"); Reliant Account Management
Systems ("RAMS"); and RAM Payment, L.L.C. ("RAMP").
The second group of companies directed the actions of the Principal
Defendants and is designated as "Participating Defendants." The
group includes Defendants, RAMP,2 GS Holdings L.L.C. (California)
("GSCA"); GS Holdings L.L.C. (Arizona) ("GSAZ".); WST Management,
L.L.C. ("WST"); Austin Co. L.L.C. ("AC"); Reliant Management
Services, L.L.C. ("RMS"), Stephen Chaya; Gregory Winters, Scott
Austin, and Stephen Chaya Trust Agreement (SCTA).
The final group of companies, Florida debt settlement companies now
out of business, are designated the "Bankrupt Defendants." The
group includes Active Debt Solutions, L.L.C., formerly known as
Active Debt Solutions, Inc., doing business as Guardian Legal
Center and Paralegal Support Group, formerly known as Paralegal
Support Staff.
The Plaintiff, a New Jersey citizen, entered into a debt settlement
agreement with Legal Helpers Debt Resolution, L.L.C. on Aug. 16,
2010. The agreement authorized Legal Helpers to negotiate the
reduction of the Plaintiff's debt to creditors Capital One, to whom
Plaintiff owed $4,910, and Sears, to whom the Plaintiff owed
$17,634.
The Plaintiff also executed a second document entitled Special
Purpose Account Application which authorized Global Client
Solutions, L.L.C. to electronically withdraw money from the
Plaintiff's bank account each month and deposit it into an escrow
account. The purpose of the escrow account was to both pay the
costs and fees of Legal Helpers and Global's services and pay any
creditors who agreed to a settlement.
Legal Helpers filed for Chapter 7 Bankruptcy and notified the
Plaintiff that it was terminating her relationship with Legal
Helpers and Global. At the Plaintiff's request, Global issued her a
check in the amount of $8,517.09.
On May 22, 2014, Guardian contacted the Plaintiff to advise her
that they were taking over her debt settlement program. The
following month, at Guardian's instruction, Plaintiff sent a check
for $8,127.28 to Paralegal. Guardian used the Principal Defendants
to withdraw money from the Plaintiff's bank account each month and
deposit it into an escrow account, the purpose of which was to pay
the costs and fees of Guardian and the Principal Defendants and pay
any creditors who agreed to a settlement.
Throughout the course of these transactions, the Plaintiff alleges
that one of the Principal Defendants paid itself illegal
transaction charges amounting to $298.50 over the course of thirty
months, and paid additional illegal fees to Guardian, all while
paying nothing to creditors.
The three main documents before the Court are:
(1) samples of RAM template contracts with arbitration
agreements ("RAM template contracts") used between 2013-2021 that
may have been signed by members of the proposed class;
(2) an Electronic Funding Authorization & Service Agreement
executed by the Plaintiff, permitting the Defendant RAM to process
the costs and fees associated with the Plaintiff's contract with
Active Debt Solutions; and
(3) a Settlement Agreement and General Release from the matter
of Federal Trade Commission and State of Florida v. Jeremy Lee
Marcus, et al., No. 17-60907 (S.D. Fl) ("Florida Settlement
Agreement") that the Defendants allege may be binding on some
members of the proposed class.
According to the supplemental briefing, the Plaintiff learned after
initial discovery, that the "Plaintiff executed a contract with the
RAM defendants," but the parties have been unable to produce the
actual executed contract at this point in discovery. Neither party
has a copy of the contract as it appears that Paralegal sent RAM's
contract to the Plaintiff, never provided a copy to RAM, and has
been unable to furnish it thus far in discovery. Therefore, "it
cannot be determined with 100% certainty" whether or not the
Plaintiff's contract includes an arbitration agreement.
As for the contracts of the proposed class members, the Defendants
have "issued a subpoena to the Receiver for the Marcus Entities, in
an attempt to determine the exact number of individuals whose
agreements contain language mandating arbitration and waiver of
participation in a class action lawsuit," but they have not yet
provided that information. The Plaintiff alleges that confidential
discovery has disclosed close to a 6,000-person class but that
Defendants have only produced some of the single signature pages so
far.
III. Discussion
After a review of the parties' briefs and the discovery presented
so far, Judge O'Hearn believes that further discovery is required
for the Court to engage in a rigorous analysis of the Motion. She
therefore deny the Defendant's Motion to Certify Class and grants
the Plaintiff leave to renew her motion at the close of discovery.
Since there does not appear to be a challenge to the
ascertainability, numerosity, superiority, or adequacy of
representation, Judge O'Hearn reviews these only briefly. Her main
concern is that she is unable to conduct a rigorous review of the
commonality, typicality, and predominance requirements given the
potential disruptive impact of arbitration agreements which are not
before the Court and about which there is inadequate information at
the present time.
Judge O'Hearn finds that (i) the Plaintiff has satisfied the
ascertainability requirement of Rule 23(a); (ii) from information
provided by the RAM Defendants under the confidentiality order it
appears at a minimum there are over 6,000 class members, so the
Plaintiff has satisfied the numerosity requirement of Rule 23(a);
(iii) judicial efficiency weighs in favor of certifying the Class;
(iv) the interests of the members of the proposed class are
aligned; (v) she simply cannot make a finding as to whether the
Plaintiff's interests are wholly aligned or patently conflicted
with proposed class members who might be subject to an arbitration
clause; and (vi) she is unable to conduct a rigorous review as to
what, if any, impact it might have on the certification of a
class.
In summary, the parties need to complete discovery as to the
existence of arbitration agreement(s), the specific language of any
such agreement(s), and the number of potential class members who
executed them, among other issues.
IV. Conclusion
For the foregoing reasons, Judge O'Hearn denied the Plaintiff's
Motion to Certify Class without prejudice. The Plaintiff will be
granted leave to renew her Motion at the close of discovery. An
appropriate Order will be entered.
A full-text copy of the Court's March 25, 2022 Opinion is available
at https://tinyurl.com/bden4vch from Leagle.com.
Joseph Michael Pinto -- Jfpolino@prodigy.net -- POLINO AND PINTO,
P.C., Moorestown, NJ, Carl D. Poplar, POLINO AND PINTO, P.C., in
Cherry Hill, New Jersey, On behalf of Plaintiff June Germinario.
Shaji M. Eapen -- eapen@methwerb.com -- METHFESSEL & WERBEL, ESQS.,
in Edison, New Jersey, On behalf of Defendants Reliant Account
Management, L.L.C. (California), Reliant Account Management, L.L.C.
(Tennessee), Account Management Systems, L.L.C., Reliant Account
Management Systems, L.L.C., Gs Associated Holdings, L.L.C.
(California), GS Associated Holdings, L.L.C. (Arizona), WST
Management, L.L.C., Austin Co. L.L.C., Reliant Management Services,
L.L.C. Stephen Chaya, Gregory Winters, Scott Austin, Stephen Chaya
Trust Agreement.
REAL KETONES: Mejia Files ADA Suit in S.D. New York
---------------------------------------------------
A class action lawsuit has been filed against Real Ketones, LLC.
The case is styled as Jose Mejia, individually, and on behalf of
all others similarly situated v. Real Ketones, LLC, Case No.
1:22-cv-02813 (S.D.N.Y., April 5, 2022).
The lawsuit is brought over alleged violation of the Americans with
Disabilities Act.
Real Ketones -- https://realketones.com/ -- delivers exogenous
ketones made from the highest-quality beta-hydroxybutyrate
(BHB).[BN]
The Plaintiff is represented by:
Edward Y. Kroub, Esq.
MIZRAHI KROUB LLP
200 Vesey Street
New York, NY 10281
Phone: (212) 595-6200
Email: ekroub@mizrahikroub.com
RIVIAN AUTOMOTIVE: Faces Securities Suit in C.D. Cal.
-----------------------------------------------------
Rivian Automotive, Inc. disclosed in its Form 10-K Report for the
fiscal year ended December 31, 2021, filed with the Securities and
Exchange Commission on March 31, 2022, that on March 22, 2022, an
alleged stockholder filed a similar securities class action against
Rivian Automotive, Inc., certain of its officers and directors, and
its IPO underwriters, also in the Central District of California,
on behalf of a putative class of purchasers of its common stock
between November 10, 2021 and March 10, 2022.
The complaint, in addition to alleging violations of Sections 11
and 15 of the Securities Act, alleges violations under Sections
10(b) and 20(a) of the Exchange Act. Each of these complaints seeks
damages and attorneys' fees, among other things.
Rivian designs, develops, and manufactures category-defining
electric vehicles and accessories and sells them directly to
customers in the consumer and commercial markets.
SETERUS INC: California Court Denies Lemp's Bid to Certify Class
----------------------------------------------------------------
In the case, MARTIN LEMP, individually and on behalf of all others
similarly situated, Plaintiff v. SETERUS, INC., Defendant, Case No.
2:18-cv-01313-TLN-KJN (E.D. Cal.), Judge Troy L. Nunley of the U.S.
District Court for the Eastern District of California denied the
Plaintiff's Motion to Certify Class.
I. Background
The Plaintiff alleges the Defendant violated the Fair Debt
Collection Practices Act ("FDCPA"), 15 U.S.C. Section 1692, and the
Rosenthal Fair Debt Collections Practices Act, California Civil
Code Section 1788, for charging "unlawful convenience fees" for
payments made online or by phone. The Plaintiff alleges the
Defendant is a mortgage servicer and has provided services for his
loan. The Defendant charged him a convenience fee for paying his
mortgage online or by phone.
The Plaintiff seeks to certify the following nationwide class under
the FDCPA: "All individuals in the United States, who, during the
applicable limitations period, paid a convenience fee to Seterus
for paying over the phone or online in connection with any
residential mortgage loan, where the term convenience fee was not
specifically enumerated in the original agreement and where
Defendant's records indicate that the debt had not been current for
30 or more consecutive days at the time Defendant began servicing
it. All employees of the Court and Plaintiff's counsel are excluded
from this class."
The Plaintiff also seeks to certify the following statewide class
under the Rosenthal Act: "All individuals in the state of
California, who, during the applicable limitations period, paid a
convenience fee to Seterus for paying over the phone or online in
connection with any residential mortgage loan owned or serviced by
Seterus. All employees of the Court and Plaintiff's counsel are
excluded from this subclass."
The Plaintiff filed the instant action on May 21, 2018. He filed
the operative Second Amended Complaint ("SAC") on Feb. 4, 2020,
which alleges violations under the FDCPA and Rosenthal Act for
charging unlawful debt collection fees. On Oct. 15, 2020, the
Plaintiff filed his motion to certify class pursuant to Federal
Rule of Civil Procedure 23. The Defendant filed an opposition to
the motion on Oct. 29, 2020. The Plaintiff filed a reply on Nov. 5,
2020.
II. Analysis
The Plaintiff argues that all of the requirements of Rule 23(a) and
(b)(3) are satisfied for the putative classes. In opposition, the
Defendant asserts: (1) the Plaintiff fails to establish commonality
under Rule 23(a) and predominance under Rule 23(b)(3); (2) a class
action is not superior to individual lawsuits under Rule 23(b)(3);
(3) the Plaintiff cannot prove typicality under Rule 23(a)(3); and
(4) the FDCPA and Rosenthal Act do not permit declaratory relief,
precluding certification under Rule 23(b)(2). Judge Nunley examines
each of the Defendant's arguments in turn.
A. Whether a Class Member's Loan is "In Default"
Judge Nunley agrees with the Defendant that the FDCPA only applies
if Defendant acquired payments from a borrower whose account is "in
default." Because it cannot be easily determined whether individual
accounts are "in default" -- an element of the claim -- it cannot
be easily determined whether the FDCPA applies to each transaction.
"Where, in the present case, individual inquiries are required to
prove a core element of liability, courts have found that
individual questions predominate over common questions." Therefore,
this individualized issue weighs against a finding of predominance
and commonality.
B. Whether Individual Agreements or Modifications Authorize the
Fee
The Defendant states that it services a variety of loans from
different mortgage originators, so "different forms underlie
borrowers' loans." It argues the Plaintiff provides no evidence the
underlying mortgage agreements of putative class members used a
standard form or have any similarities, and therefore certification
"would require unearthing and scrutinizing the account file for
each contract to determine whether that particular form authorizes
convenience fees." The FDCPA (and, by extension, the Rosenthal Act)
permits collection of fees "expressly authorized by the agreement
creating the debt or permitted by law."
In reply, the Plaintiff argues the Defendant does not cite, nor can
the Plaintiff find, a case in which a mortgage servicer has
presented a loan agreement which specifically authorized
convenience fees. He contends "if any of the class' loan documents
contained such a provision, the Defendant would have submitted a
declaration or other evidence to that effect" and this inquiry
requires "a simple yes/no check from its records.
Judge Nunley finds that the Plaintiff does not present the Court
with any information as to how many types of underlying mortgage
agreements must be examined, let alone any evidence substantiating
their claim that no mortgage agreement expressly authorizes the
convenience fee. The Defendant services mortgages from numerous
mortgage originators with different mortgage agreements. As the
parties' briefs show, this inquiry requires intense factual
determinations concerning loan agreements which a "simple yes/no"
answer would not satisfy. The Plaintiff bears the burden of proof.
Without a further showing, Judge Nunley cannot conclude that the
question of whether class members' security instruments expressly
authorize the phone payment convenience fee may be resolved on a
common basis. Thus, this individualized issue weighs against a
finding of predominance and commonality.
C. "Notice-and-Cure" Provisions
The Defendant argues many class members, unlike the Plaintiff, have
agreements with "notice-and-cure" provisions which require the
borrower to give written notice of a breach of the agreement and
provide the lender an opportunity to cure prior to filing a
lawsuit. It contends that before the Court could adjudicate the
FDCPA and Rosenthal Act claims on the merits, it would "need to
conduct detailed fact-finding about each putative class member's
eligibility to proceed under his or her individual contract."
The Defendant maintains the Court would need to determine the
following: "(1) which class members had agreements with
notice-and-cure requirements; (2) whether those class members gave
notice to the Defendant in accordance with the specific
requirements of the originating document (or any amendment); and
(3) whether the Defendant failed to cure the complained of action
(under the terms of the specific document)."
In reply, the Plaintiff argues a "notice-and-cure" provision is not
relevant when the borrower's claim has an independent basis in
statute, such as the FDCPA and Rosenthal Act, instead of the
contract.
Judge Nunley finds the Plaintiff's argument persuasive. He says,
the Plaintiff is challenging a fee that was allegedly not specified
in his loan agreement, so the mortgage lender's attempts to impose
the fees were clearly not "actions pursuant to" the agreements.
Thus, the "notice-and-cure" provisions do not impact a class
member's ability to bring the claim, even if their agreement
contained the provision.
However, the Plaintiff presents the Court with limited information
about the diversity of loan agreements in the proposed class. As
such, "the parties' dispute as to the named plaintiff's
notice-and-cure provision indicates that the parties will need to
engage in similar colloquies for every species of notice-and-cure
provision in class members' loan agreements." Therefore, Judge
Nunley finds this individualized issue weighs against a finding of
predominance and commonality.
D. Other Proceedings and Defenses
The Defendant argues many putative class members have settled their
claims through foreclosure, bankruptcy, and other proceedings such
that defenses related to waiver, estoppel, and res judicata would
apply. In reply, the Plaintiff argues the Defendant fails to cite a
case demonstrating that such a hypothetical situation defeats class
certification. The Plaintiff contends "that most certified classes
contain at least a few members who would be barred from
participating because they settled or discharged their individual
claims."
Judge Nunley is unpersuaded by the Defendant's proposed defenses as
they are "no more than cursory hypotheticals" which, even if they
applied to some class members, would not bar certification "as more
important questions predominate." Therefore, this issue weighs in
favor of a finding of predominance and commonality.
III. Conclusion
In conclusion, Judge Nunley finds that the Plaintiff has not met
the commonality or predominance requirement under Rule 23(a) and
Rule 23(b)(3), respectively, "because individual permutations of
fact and law predominate and would overwhelm any common question."
The Plaintiff does not provide any reasonable solution to resolve
these questions, other than to examine the Defendant's records for
each of the potentially tens of thousands of class members.
Therefore, Judge Nunley will deny class certification of both
classes because the Plaintiff has not provided a likely method for
determining: (1) whether class members are in default; (2) whether
class members' individual mortgage agreements or modifications
authorize the fee; and (3) whether class members have
"notice-and-cure" provisions. The predominance inquiry is
dispositive, so Judge Nunley declines to address the other
requirements of Rule 23."
IV. Disposition
For the foregoing reasons, Judge Nunley denied the Plaintiff's
Motion to Certify Class.
A full-text copy of the Court's March 25, 2022 Order is available
at https://tinyurl.com/4yhf6v3w from Leagle.com.
SHERWIN-WILLIAMS: Faces Class Suit Over Deceptive Surcharge Scheme
------------------------------------------------------------------
Jessy Edwards, writing for Top Class Actions, reports that
Sherwin-Williams secretly slaps a 4% surcharge on its products
without giving customers any notice, a new class action lawsuit
alleges.
Plaintiffs Maureen E. Dunham and Frank Novak filed the class action
lawsuit against The Sherwin-Williams Company Mar. 30 in a New York
federal court, alleging violations of consumer laws.
According to the plaintiffs, the paint and stain company runs a
deceptive bait-and-switch scheme of covertly tacking on a hidden 4%
"Supply Chain Surcharge" to every sale transaction at the cash
register once it's too late for the customer to rescind their
purchase.
"Sherwin-Williams adds the Surcharge covertly, and customers are
often entirely unaware of the Surcharge until after paying and
checking out," the plaintiffs allege.
The plaintiffs state that, in the wake of the COVID-19 pandemic,
supply chain shortages increased throughout the nation for raw
materials such as paint.
Feeling the pressure of rapidly rising manufacturing costs,
Sherwin-Williams decided to shift this cost onto customers, they
allege.
"But instead of raising its list prices in a transparent manner,
Sherwin-Williams chose to add the surcharge on to sales after the
customer has decided to make a purchase," the customers say in the
lawsuit. "This deceptive practice allows Sherwin-Williams to hide
the true prices of its products. Customers are induced to make
purchases in reliance on the lower listed price and then are duped
at the cash register into paying 4% more than the prices advertised
by Defendant."
Sherwin-Williams Surcharge Impacts Thousands of Customers, Lawsuit
Alleges
The lawsuit alleges that the practice is "deceptive and illegal" as
it obstructs customers' ability to engage in fair and accurate
price comparisons in the marketplace and to shop around for the
best value for their money.
The plaintiffs allege that thousands, if not more, of
Sherwin-Williams customers have been assessed hidden surcharges
that they did not bargain for.
They're looking to represent a nationwide class of people who made
a purchase at a Sherwin-Williams store and were charged a 4%
surcharge, plus New York and Michigan subclasses. They're suing
under state consumer laws plus breach of contract and unjust
enrichment.
The lawsuit is seeking damages, injunctive relief that allows
customers to decide whether they will pay Sherwin-Williams'
surcharge, fees, costs and a jury trial.
In 2020, Sherwin-Williams faced a class action lawsuit alleging its
SuperDeck and Duckback deck stain is prone to peeling.
Have you had dealings with Sherwin-Williams? Let us know your
experience in the comments!
The plaintiffs are represented by Jeffrey D. Kaliel and Sophia
Loren Gold of KalielGold PLLC.
The Sherwin-Williams Surcharge Class Action Lawsuit is Maureen E.
Dunham et al., v. The Sherwin-Williams Company, Case No.
1:22-cv-00300-DNH-DJS, in the U.S. District Court Northern District
of New York. [GN]
SHOPIFY INC: Fails to Secure Customers' Info, Forsberg Suit Says
----------------------------------------------------------------
GREGORY FORSBERG, CHRISTOPHER GUNTER, SAMUEL KISSINGER, AND SCOTT
SIPPRELL, individually and on behalf of all others similarly
situated v. SHOPIFY, INC., SHOPIFY HOLDINGS (USA), INC., SHOPIFY
(USA) INC., TASKUS, INC., Case No. 1:22-cv-00436-UNA (D. Del.,
April 1, 2022) is a class action for damages against TaskUs and
Shopify for their failure to exercise reasonable care in securing
and safeguarding consumer information in connection with a massive
2020 data breach impacting Ledger SAS cryptocurrency hardware
wallets, resulting in the unauthorized public release of
approximately 272,000 pieces of detailed personally identifiable
information ("PII"), including the Plaintiffs' and "Class" members'
full names, email addresses, postal addresses, and telephone
numbers.
Ledger sells Ledger Wallets through its e-commerce website, which
is run on Shopify's platform.
Ledger Wallets store the "private keys" of an individual's
crypto-assets. These private keys are similar to bank account
passwords in that access to the private keys allows an individual
to transfer the assets out of a cryptocurrency account. Unlike a
bank account
transaction, however, cryptocurrency transactions are
non-reversible -- once assets are transferred out of a
cryptocurrency account, they are able to be distributed or spent
with little information about where they could have gone. Ledger
Wallets were marketed as providing owners of cryptocurrency with
the best security for their cryptocurrency because they hold
password information in a physical form and restrict transfer of
crypto-assets in an individual's account unless the physical device
is mounted to a computer and a twenty-four-word passphrase is
entered.
Because of these features, Ledger's platform is built on marketing
the utmost security and trust to its customers. Ledger and Shopify
know that cryptocurrency transactions are publicly visible through
a transaction's underlying blockchain, but cannot be traced back to
their particular owner without more information. When hackers know
the identity of a cryptocurrency owner and know what platform that
consumer is storing their crypto-assets on, the hacker can work
backwards to create a targeted attack aimed at luring hardware
wallet owners into mounting their hardware device to a computer and
entering their passphrase, allowing unfettered access and transfer
authority over their crypto-assets, says the suit.
Accordingly, to the world of cybercriminals, Ledger's customer
list, which was in the possession of Shopify at the time of the
"Data Breach", is extremely valuable. By accessing Ledger customer
PII entrusted to Shopify, such as full names, email addresses,
postal addresses, and telephone numbers, hackers can engineer
targeted communications -- known as phishing attacks—that compel
users to unlock their cryptocurrency accounts and make untraceable,
irreversible transfers of cryptocurrency into these criminals'
accounts overseas and within the United States. The security of
Ledger customers' PII is accordingly of the utmost importance. One
instance of a customer mistakenly releasing their account
information to hackers can lead to the loss of millions of dollars
in cryptocurrency that will never be returned to their owner.
With their PII in hackers' hands, the Plaintiffs and Class members
contain that they are no longer in possession of a secure
cryptocurrency portfolio.
Between April and June of 2020, hackers gained access to and
exploited a Ledger database vulnerability through its e-commerce
vendor, Shopify, and TaskUs as a third-party contractor, in order
to obtain a list of Ledger's customers' PII (the "Data Breach").
Had Plaintiffs and Class members known that the information
necessary to perform targeted phishing attacks against them would
not be adequately protected by Shopify and TaskUs, they would not
have paid the amount of money they did to purchase the Ledger
Wallets. Nor, for that matter, would they have agreed to have their
data transmitted to either company in order to perform e-commerce
support for Ledger's operations, the suit added.
On behalf of the Class and several Subclasses of victims impacted
by the Data Breach described herein, Plaintiffs seek, under state
common law and consumer-protection statutes, to redress Defendants'
misconduct occurring from April 1, 2020 to the present (the "Class
Period").
TaskUs is a Delaware corporation with its principal place of
business registered at 1650 Independence Drive, Suite 100, New
Braunfels, Texas. TaskUs had access to Ledger customers' PII and
failed to secure the received PII or implement any security
measures or even screening procedures to ensure that its agents,
support representatives, and other individuals to whom Ledger and
Shopify entrusted the Private PII data would ensure secure handling
of the data.
Shopify Holdings (USA), Inc. acts as a holding company for all of
Shopify Inc.'s US-based subsidiaries.[BN]
The Plaintiffs are represented by:
P. Bradford deLeeuw, Esq.
DELEEUW LAW LLC
1301 Walnut Green Road
Wilmington, DE 19807
Telephone: (302) 274-2180
Facsimile: (302) 351-6905
E-mail: brad@deleeuwlaw.com
- and -
Nicholas A. Migliaccio, Esq.
Jason S. Rathod, Esq.
MIGLIACCIO & RATHOD, LLP
412 H Street, NE, Suite 302
Washington, DC 20002
Telephone: (202) 470-520
Facsimile: (202) 800-2730
E-mail: nmigliaccio@classlawdc.com
jrathod@@classlawdc.com
SHOSHANNA COLLECTION: Lawal Files ADA Suit in S.D. New York
-----------------------------------------------------------
A class action lawsuit has been filed against The Shoshanna
Collection, LLC. The case is styled as Rafia Lawal, on behalf of
herself and all others similarly situated v. The Shoshanna
Collection, LLC, Case No. 1:22-cv-02770 (S.D.N.Y., April 4, 2022).
The lawsuit is brought over alleged violation of the Americans with
Disabilities Act.
Shoshanna Collection -- https://shoshanna.com/ -- offers women's
dresses, evening wear, and swimwear.[BN]
The Plaintiff is represented by:
Yitzchak Zelman, Esq.
MARCUS & ZELMAN LLC
701 Cookman Avenue, Suite 300
Asbury Park, NJ 07712
Phone: (845) 367-7146
Fax: (732) 298-6256
Email: yzelman@marcuszelman.com
SIG SAUER: Must Face Class Action Over P320 Pistol's Safety Issues
------------------------------------------------------------------
Todd Bookman, writing for nhpr, reports that a federal judge is
declining to dismiss a proposed class action suit filed against New
Hampshire-based gun manufacturer Sig Sauer over safety concerns
related to its popular P320 pistol.
In 2019, Derek Ortiz, an Arizona law enforcement officer, filed the
civil suit alleging he wouldn't have purchased the P320, or would
have paid less, had he known about the gun's potential to discharge
when dropped at certain angles.
Sig Sauer, based in Newington, maintains the P320 is safe. The
company has offered a free voluntary modification that swaps out
certain components of the gun, including its trigger, in response
to a series of injuries allegedly caused by a dropped weapon.
In a ruling released, Judge Joseph LaPlante rejected Sig Sauer's
efforts to dismiss the proposed class action case, noting that
Ortiz presented two examples of upgraded P320s allegedly firing
without a trigger pull, including a recent incident in which a
Texas detective was shot in the leg after her gun fired from inside
her purse.
"Sig Sauer claims, without adequate evidentiary support, that these
incidents do not involve drop fires," LaPlante wrote. While the
exact circumstances of the firings remain unclear, he noted "while
not resounding, these two incidents bar the court, at this stage,
from concluding that Sig Sauer's upgrades cure the drop fire
defect."
LaPlante dismissed other claims made by Ortiz regarding a breach of
the gun's warranty.
Attorneys for Sig Sauer and Ortiz were not immediately available
for comment on April 4.
The company continues to state that the weapon is safe, including
in its original unmodified version. The U.S. Army first discovered
the risk of potential discharge in April 2016, according to court
documents, while the weapon was being considered as the new
standard-issue sidearm for soldiers. In previous court filings,
Ortiz claimed there are more than 300,000 unmodified P320s in
circulation, though that number has not been verified.
The gunmaker has settled previous suits brought by members of law
enforcement and the public seriously injured when their P320
allegedly fired without a trigger pull. [GN]
SOUTHWEST AIRLINES: Averts Class Action Over Military Leave
-----------------------------------------------------------
Patrick Dorrian, writing for Bloomberg Law, reports that a
Southwest Airlines Co. pilot failed with a lawsuit alleging the
airline denied him and other workers on military leave equal pay
and benefits under its Covid-19 extended emergency time-off
program, a Baltimore federal judge ruled.
But Barry Weaver can try again with one of his two claims in the
proposed class lawsuit under the Uniformed Services Employment and
Reemployment Rights Act, the U.S. District Court for the District
of Maryland said.
According to Weaver's July 28 suit, Southwest announced the program
June 1, 2020. Under it, employees were allowed to volunteer for
extended absences ranging from six months. GN].
SPLUNK INC: California Court Narrows Claims in Securities Suit
--------------------------------------------------------------
Splunk Inc. disclosed in its Form 10-K Report for the fiscal year
ended January 31, 2022, filed with the Securities and Exchange
Commission on March 24, 2022, that on March 21, 2022, a California
Court granted in part and denied in part a motion to dismiss a
securities class action filed against the company.
This putative class action lawsuit alleging violations of the
federal securities laws was filed on December 4, 2020 in the U.S.
District Court for the Northern District of California.
The company, its former CEO and current CFO were named as
defendants in this complaint alleging violations of the Securities
Exchange Act of 1934, as amended, for allegedly making materially
false and misleading statements regarding its financial guidance
and asserted a putative class period of October 21, 2020 to
December 2, 2020.
On March 16, 2021, the Court appointed Louisiana Sheriffs' Pension
& Relief Fund as lead plaintiff and approved its selection of lead
plaintiff counsel in the case. On June 7, 2021, the lead plaintiff
filed an amended complaint which expands the putative class period
to run from March 26, 2020 to December 2, 2020 and alleges that
defendants made materially false and misleading statements
regarding their marketing efforts, hiring practices, and retention
of personnel. The lead plaintiff seeks unspecified monetary damages
and other relief.
On July 27, 2021, defendants filed a motion to dismiss the amended
complaint. On March 21, 2022, the Court issued a decision granting
in part and denying in part the defendants' motion to dismiss. The
decision dismissed some claims with leave to amend and permitted
other claims to proceed.
Splunk Inc. is an American software company based in San Francisco,
California, that produces software for searching, monitoring, and
analyzing machine-generated data via a Web-style interface.
SPRINT CORP: Court Narrows Claims in Solomon's Amended Complaint
----------------------------------------------------------------
In the case, ISAAC SOLOMON and FRANCINE CANION, individually and on
behalf of all others similarly situated, Plaintiffs v. SPRINT
CORPORATION, MICHAEL COMBES, ANDREW DAVIES, MARCELO CLAURE, and
TAREK ROBBIATI, Defendants, Case No. 1:19-cv-05272 (MKV)
(S.D.N.Y.), Judge Mary Kay Vyskocil of the U.S. District Court for
the Southern District of New York granted in part and denied in
part the Defendants' motion to dismiss the Amended Class Action
Complaint.
I. Background
The lawsuit is a putative class action asserting violations of the
federal securities laws in connection with Defendant Sprint's
financial statements in advance of its 2020 merger with T-Mobile.
In particular, the Plaintiffs alleges that Sprint and its
executives misled the markets when reporting about Sprint's
"postpaid net additions" and with regard to Sprint's internal
controls connected to its involvement in the federal "Lifeline"
reduced price phone lines program.
The case relates to financial statements Sprint made before its
April 2020 merger with T-Mobile. Prior to the merger, in 2013,
Softbank Corp. first merged with Sprint and acquired a 78% interest
in the company. According to the Plaintiffs, Softbank had an
immediate appetite to merge "with another telecommunications
company to take market share from Verizon and AT&T Inc." Despite
this interest, merger discussions between Sprint and T-Mobile
apparently failed in both 2014 and 2017.
As alleged by the Plaintiff, the failure of the first two rounds of
merger talks led Sprint to begin disseminating false and misleading
statements intended to artificially increase the value of Sprint in
the eyes of the market. The misrepresentations allegedly were only
revealed by disclosures and due diligence in connection with the
eventually successful merger. The Plaintiffs' complaint alleges
misrepresentations regarding two topics: Sprint's reported net
"postpaid additions" and its involvement in and controls regarding
the federal "Lifeline" program.
One of the principal methods through which Solomon alleges Sprint
increased its apparent value was by misreporting Sprint's so-called
"postpaid additions." Sprint claimed that its growth largely was
based on increasing postpaid phone lines and increasing revenue per
customer. To keep up this narrative, Sprint allegedly included
phone lines added free of charge to its sales quota in
representations to the FCC, increasing the apparent success of its
sales and products. And between August 2018 and January 2019,
Sprint "repeatedly touted" its postpaid subscriber additions,
including that they expected to see "continued acceleration" in
subscribers. Behind the scenes, however, Sprint may have been less
enthusiastic.
The April 2019 FCC Letter and a Wall Street Journal article
discussing the article are alleged to be the first public
disclosures of the Company's purported misrepresentations about its
postpaid additions. In light of them, Sprint common stock fell
$0.37 (6.2%) between April 16 and 17, 2019: from $6.01 per share to
$5.64 per share.
In addition to their allegations of misrepresented postpaid
additions, the Plaintiffs allege that Sprint's involvement with the
federal "Lifeline" program, and an admitted failure of its internal
controls, further affected the value of its stock. The Lifeline
program is a federally sponsored program that lowers the monthly
costs for phones and internet to qualifying low-income consumers.
On the announcement of the news that Sprint had improperly sought
and received reimbursements for ineligible Lifeline accounts,
Sprint stock fell $0.29 (4.4%) between Sept. 23 and 24, 2019, from
$6.59 per share to $6.37 per share. This downward trend continued
over the following two days, closing at $6.34 per share and then
$6.19 per share -- down 7% overall. According to financial analyst
firm Cowen & Company, the Lifeline program issue resulted in a $220
million one-time impact on wholesale revenue for the second quarter
of 2019, in addition to a $30 million recurring impact. Following
this information, Sprint's stock fell $0.15 (2.3%) from $6.30 per
share to $6.15 per share between Nov. 1 and 4, 2019.
In April 2018, Sprint announced that it would merge with T-Mobile
in an all-stock transaction. The announced merger ultimately closed
in April 2020. During this period, Sprint and T-Mobile filed a
merger application with the FCC. The Plaintiffs allege that many of
the misrepresentations for which they seek damages were made in
connection with the merger and in an effort to portray Sprint's
value as strong and to ensure the merger was consummated.
The action was filed in June 2019. However, this was not the first
case filed in the District asserting securities claims about the
same conduct. That honor went to Aleneses v. Sprint Corp., No.
19-cv-3549. However, before the pending actions could be
consolidated and lead plaintiff appointed, Aleneses was voluntarily
dismissed. Judge Daniels, to whom the instant case was previously
assigned, ordered Plaintiff to file his motion for appointment as
lead counsel in the instant case after the Aleneses dismissal.
Before a lead plaintiff was appointed, the case was transferred to
Judge Vyskocil.
The Court granted Plaintiff Isaac Solomon's unopposed motion to
serve as lead plaintiff. The Plaintiffs then filed their Amended
Class Action Complaint. Their complaint asserts two causes of
action. First, the Plaintiffs assert that Sprint's false statements
about their postpaid additions and the Lifeline program violated
Section 10(b) of the Exchange Act and Rule 10b-5. This claim is
asserted against the company and all individual defendants for
statements each made regarding the issues. Second, the Plaintiffs
assert a Section 20(a) claim for control-person liability against
the individual Defendants. The Plaintiffs assert a class period
from October 2017 until November 2019.
Pending before the Court is the Defendants' motion to dismiss. In
support of their motion, the Defendants filed a memorandum of law
and a declaration of counsel. They argue that the Amended Complaint
fails to state a claim because the Plaintiff does not allege any
false or misleading statement by the Defendants, do not allege
scienter, and do not adequately plead loss causation. The
Plaintiffs opposed the motion with a memorandum of law. The Court
thereafter heard oral argument on the motion.
II. Analysis
In a typical Section 10(b) private action, a plaintiff must prove
(1) a material misrepresentation or omission by the defendant; (2)
scienter; (3) a connection between the misrepresentation or
omission and the purchase or sale of a security; (4) reliance upon
the misrepresentation or omission; (5) economic loss; and (6) loss
causation." For an inference of scienter to be strong as required,
a reasonable person must deem it cogent and at least as compelling
as any opposing inference one could draw from the facts alleged.
A. The Amended Class Action Complaint Plausibly Alleges That
Defendants Made Materially False Statements
The Defendants first suggest that the Plaintiffs have failed to
allege that Sprint or its executives made any material
misrepresentations or omissions. In addition to other statements,
the most serious of the alleged misstatements concern Sprint's
public statements about its postpaid net additions and its
representations about its internal controls in connection with the
Lifeline program.
After review of the record to date in the case, Judge Vyskocil
finds that the Amended Class Action Complaint alleges sufficient
facts to establish that Defendants made materially false and
misleading statements with regard to both topics and the motion to
dismiss is denied in relevant part. However, the Amended Complaint
does fall short in alleging that certain forward-looking statements
about future performance are actionable. Those claims are
dismissed.
B. Plaintiffs Have Sufficiently Pleaded Scienter
As noted above, a plaintiff must "state with particularity facts
giving rise to a strong inference that the defendant acted with the
required state of mind," which is a mental state "embracing intent
to deceive, manipulate, or defraud." Scienter can be established by
alleging facts to show either (1) that defendants had the motive
and opportunity to commit fraud, or (2) strong circumstantial
evidence of conscious misbehavior or recklessness. The Plaintiffs
point almost exclusively to evidence and allegations of
recklessness rather than motive.
Judge Vyskocil opines that the Plaintiffs adequately have pleaded
that Sprint's statements about its reporting of postpaid net
additions were made with the requisite scienter. The Plaintiffs
have adequately alleged scienter only in connection with their
claims regarding Sprint's reporting of postpaid net additions.
However, the Plaintiffs have failed to allege facts supporting a
strong inference of scienter in connection with the Defendants'
statements about the Lifeline program, either as it relates to
Sprint's internal controls or the company's financial statements.
They have not alleged sufficient facts to support an inference of
scienter at least as compelling as the alternative inferences.
C. Plaintiffs Have Pleaded Loss Causation Adequately
The Defendants also challenge the Plaintiffs' pleading of loss
causation.
Judge Vyskocil opines that this argument is of no moment on a
motion to dismiss. At the pleading stage, a plaintiff need only
allege (a) "the existence of cause-in-fact on the ground that the
market reacted negatively to a corrective disclosure of the fraud;"
or (b) that "that the loss was foreseeable and caused by the
materialization of the risk concealed by the fraudulent statement."
As outlined, the Amended Complaint pleads a loss following the
corrective disclosures alleged therein. No more is required. The
Defendants' arguments urging the Court to consider a 90-day
lookback period and arguing that the Plaintiffs must disaggregate
their losses both are inapplicable at this stage and on a motion to
dismiss.
D. Defendants' Motion to Dismiss Plaintiffs' Section 20(a) Claim is
Denied
The Defendants argue that the Plaintiffs' Section 20(a) claim for
control person liability should be dismissed along with the
Plaintiffs' Section 10(b) claim for a primary violation. However,
because Judge Vyskocil finds that the Plaintiffs have stated a
claim with regard to at least some of the misstatements alleged in
the Amended Complaint, the Section 20(a) claim also survives, and
the motion to dismiss is denied.
III. Conclusion
The Defendants' motion to dismiss the Amended Class Action
Complaint is granted in part and denied in part. Judge Vyskocil
concludes that while the Defendants are correct that certain
statements alleged in the complaint are mere puffery and that the
Plaintiffs have failed to allege scienter in connection with their
claims concerning Sprint's internal control and the Lifeline
program, the Plaintiffs have stated a claim for violation of the
securities laws in connection with Sprint's reporting and public
statements concerning its postpaid net additions. To that end, the
Plaintiffs' claims are dismissed only to the extent they rely on
those former statements. The case will move forward with the claims
to the extent they seek damages as a result of the statements
regarding postpaid net additions. The Defendants are directed to
file an answer.
The Clerk of Court respectfully is requested to close the motion at
ECF No. 42.
A full-text copy of the Court's March 25, 2022 Opinion & Order is
available at https://tinyurl.com/y3v3mdca from Leagle.com.
STONEMORE INC: Corporate Officer Faces Fried Class Suit
-------------------------------------------------------
Stonemor Inc. disclosed in its Form 10-K Report for the fiscal year
ended December 31, 2021, filed with the Securities and Exchange
Commission on March 31, 2022, that its Chairman of the Board,
Andrew M. Axelrod, is facing a securities suit captioned "Fried v.
Axelrod, et al.," Case No. 2020-1065-SG, pending in the Chancery
Court of the State of Delaware and filed on December 16, 2020.
The plaintiff in this case brought an action he seeks to have
certified as a class action that asserts claims against Axar
Capital Management, LP, which beneficially owns approximately 74.9%
of Stonemor's outstanding common stock. Andrew M. Axelrod and the
other individuals who were directors at the time of the
transactions in question and against the Company as a nominal
defendant. The complaint includes direct claims against all
individual defendants and derivative claims against the individual
defendants other than Mr. Axelrod for breach of fiduciary duty in
approving certain transactions in connection with the company's
sale of preferred and common stock to Axar and certain accounts
managed by Axar. The complaint also includes derivative claims
against Axar for breach of fiduciary duty and unjust enrichment in
connection with those same transactions as well as direct claims
against both Axar and Mr. Axelrod for breach of fiduciary duty with
respect to those transactions.
Finally, the complaint includes a derivative claim against all
individual defendants for breach of fiduciary duty in connection
with the approval of a related-party investment disclosed by the
company. The plaintiff seeks rescission of the transactions
contemplated by the Axar Stock Purchase and the related-party
investment and/or an award of damages as well as attorneys' fees
and costs.
On January 6, 2021, a motion to dismiss the complaint was filed on
behalf of the company and the individual defendants other than Mr.
Axelrod and on January 11, 2021, a motion to dismiss the complaint
was filed on behalf of Axar and Mr. Axelrod. On April 2, 2021, the
plaintiff filed a First Amended Complaint, which included
additional factual background regarding the plaintiff's claims and
alleged demand futility, but did not add additional defendants,
claims or relief sought. The defendants filed a motion to dismiss
the First Amended Complaint on April 16, 2021.
Stonemor Inc. is currently one of the largest owners and operators
of cemeteries and funeral homes in the US.
SYNCHRONY FINANCIAL: Young Files ADA Suit in S.D. New York
----------------------------------------------------------
A class action lawsuit has been filed against Synchrony Financial.
The case is styled as Leshawn Young, on behalf of herself and all
other persons similarly situated v. Synchrony Financial, Case No.
1:22-cv-02812 (S.D.N.Y., April 5, 2022).
The lawsuit is brought over alleged violation of the Americans with
Disabilities Act.
Synchrony Financial -- https://www.synchrony.com/ -- is a consumer
financial services company headquartered in Stamford,
Connecticut.[BN]
The Plaintiff is represented by:
Jeffrey Michael Gottlieb, Esq.
Michael A. LaBollita, Esq.
150 E. 18 St., Suite PHR
New York, NY 10003
Phone: (212) 228-9795
Fax: (212) 982-6284
Email: nyjg@aol.com
michael@gottlieb.legal
TICKETSONSALE.COM: Shankula Sues Over Failure to Provide Refunds
----------------------------------------------------------------
John Shankula, Jason Ingman, Courtney Hanscom, individually and on
behalf of all others similarly situated v. TICKETSONSALE.COM, LLC,
a Delaware limited liability company; TICKET FULFILLMENT SERVICES
LP, a Delaware limited partnership; and DOES 1-10 inclusive, Case
No. 2022LA000282 (Ill. 18th Judicial Cir. Ct., DuPage Cty., March
23, 2022), is brought to protect the consuming public throughout
the US from the deceptive and unfair business practices of the
Defendants, resulting in violations of common law and California
state consumer protection laws related to Defendants' deceptive,
unfair, and unlawful acts and practices in failing to provide
refunds for cancelled, indefinitely postponed, and/or rescheduled
live events.
On March 3, 2020, Shankula used the Defendants' website to purchase
2 tickets to a live performance by Hillsong Worship at the Cal
Coast Credit Union Open Air Theatre at San Diego State University
for June 23, 2020. On April 6, 2020, ToS sent Shankula an email
informing him that the tickets he purchased were still valid and
that the concert had been rescheduled to August 15, 2020. Shankula
was assured that the tickets would be honored. On June 22, 2020,
ToS sent Shankula another email informing him that the concert had
been postponed indefinitely. Shankula was again assured that the
tickets remained valid and would be honored. On February 2, 2021,
Shankula contacted ToS directly to request a refund because the
event had not been rescheduled. ToS denied the request on the
grounds that Defendants' policy is to issue refunds only for
officially cancelled events. Sometime after March of 2021, Shankula
learned that the event is now cancelled, and that Shankula was
issued a credit of $441.64 on or about May 21, 2021. However,
Plaintiff does not want a credit and instead desires a full refund
for the now cancelled event.
On May 1, 2021, Ingman purchased four VIP box tickets for The
Backstreet Boys concert, which was scheduled to take place on
August 7, 2021, at the Toyota Amphitheater in Wheatland,
California. The total for the charges for the transaction,
including service charges and fees, was approximately $952.07. On
May 6, 2021, Ingman was notified that the event was being
rescheduled to August 6, 2022, which was a year later. Ingman
requested a refund from ToS on or about May 8, 2021, but he was
denied a refund on or about May 10, 2021. The rationale offered by
ToS was that the event was not cancelled but had merely been
rescheduled.
On February 28, 2021, Hanscom visited Ticketmaster.com to purchase
2 tickets totaling $557.08 to a live performance by Leonid and
Friends at Penns Peak in Jim Thorpe, Pennsylvania, for June 12,
2021. On June 7, 2021, less than one week before the Leonid and
Friends concert, Hanscom received an email from Ticketmaster.com
indicating that her pending ticket transfer for that concert was
cancelled because the concern was cancelled and that "the tickets
can no longer be accepted and have been returned."
To date, the Plaintiffs have not been issued a refund. The
Defendants' failure to honor its contractual obligation and refund
the purchase price of tickets for cancelled or effectively
cancelled events has deprived Plaintiffs and similarly situated
customers of the benefit of their bargains. The Defendants'
withholding of monies that is the property of the Plaintiffs and
the putative Class is unlawful. This action seeks, among other
things, public injunctive and declaratory relief, restitution of
all amounts illegally obtained, and disgorgement of ill-gotten
gains resulting from the misconduct, says the complaint.
The Plaintiffs have purchased tickets from the Defendants'
website.
The Defendants are an online secondary ticket (resale) marketplace
whose website provides a platform for the resale between private
parties of tickets to live events.[BN]
The Plaintiffs are represented by:
Todd M. Friedman, Esq.
LAW OFFICES OF TODD M. FRIEDMAN, P.C.
21031 Ventura Blvd, Suite 340
Woodland Hills, CA 91364
Phone: (323) 306-4234
Fax: (866) 633-0228
Email: tfriedman@toddflaw.com
- and -
Abbas Kazerounian, Esq.
KAZEROUNI LAW GROUP, APC
245 Fischer Avenue, Unit D1
Costa Mesa, CA 92626
Phone: (800) 400-6808
Facsimile: (800) 520-5523
Email: ak@kazlg.com
UDEMY INC: Williams Suit Stayed Pending Arbitration
---------------------------------------------------
Udemy Inc. 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 complaint
captioned "Williams v. Udemy, Inc.," Case No. 3:21-CV-06489, was
filed against in the U.S. District Court for the Northern District
of California in August 23, 2021 alleging violations of
California's unfair competition and false advertising statutes as
well as the California Consumer Legal Remedies Act in connection
with our pricing practices.
The complaint seeks injunctive relief, unspecified damages,
restitution and disgorgement of profits. On February 23, 2022, the
court granted Udemy's motion and entered an order staying
litigation pending arbitration.
Udemy is a two-sided marketplace where instructors develop content
to meet learner demand where courses can be accessed through
direct-to-consumer platforms.
ULTA BEAUTY: Shearman & Sterling Discusses Class Action Ruling
--------------------------------------------------------------
Shearman & Sterling LLP disclosed that on March 30, 2022, the
United States District Court for the Northern District of Illinois
dismissed, without prejudice, a putative class action asserting
claims under the Securities Exchange Act of 1934 against a
cosmetics retailer and certain of its executives. Chandler v. Ulta
Beauty, Inc., No. 18-CV-1577, 2022 WL 952441, at *1 (N.D. Ill. Mar.
30, 2022). Plaintiffs alleged that the company made various
statements that were misleading because they failed to disclose the
company's alleged practice of reselling used returned products. The
Court held that plaintiffs failed to identify any actionable
misrepresentations and failed to adequately allege scienter, but
granted plaintiffs leave to replead.
Plaintiffs alleged that the company's personnel were instructed to
"retouch used and dirty returned products and resell them as new in
order to reduce inventory losses." Id. at *3. Plaintiffs alleged on
this basis that the company made misstatements and omissions
relating to (i) compliance with the company code of conduct, (ii)
the company's compensation program, (iii) the quality of the
company's products, (iv) the company's financial results, and (v)
the company's internal controls and reporting. Id. at *7.
The Court held that plaintiffs failed to explain why the challenged
statements were false. For example, with respect to the company's
statements about compliance with the company code of conduct --
specifically, that employees "must act ethically at all times" and
in accordance with the code of conduct, which itself provided that
employees "should not deliberately misrepresent information to
customers" -- the Court concluded that such statements were
"immaterial as a matter of law" because they were "too general to
cause a reasonable investor to rely upon them" and amounted to
"inactionable puffery." Id. at *9. With respect to statements
regarding the company's "compensation plans, practices and
policies," the Court concluded that plaintiffs did not explain how
those statements were false and further observed that the alleged
improper reselling practices were "not so closely tied to
compensation" that they were required to be disclosed in order to
prevent the compensation-related statements from being misleading.
Id. at *10. With respect to statements concerning product quality
-- specifically, that the company had a "pipeline of newness and
innovation in merchandising" -- the Court found that this statement
was referring to new types of products and it was not reasonable to
infer that the company was touting the product offerings as "being
'new' -- as opposed to used—because such a statement would only
make sense if investors believed that [the company] was selling
used products," something which the complaint alleged was being
hidden from the public. Id. at *11.
In addition, the Court held that challenged statements regarding
the company's financial performance were not adequately alleged to
be false or misleading, including because plaintiffs never alleged,
even in a general sense, "what the correct sales, income, and
inventory figures purportedly were that [the company] should have
reported." Id. at *14. Similarly, the Court rejected plaintiffs'
allegations as to statements regarding internal controls and
reporting, explaining that plaintiffs failed to allege facts
showing how such challenged statements were false or misleading and
failed to explain "how [the company's] internal controls should
have been designed differently." Id. at *21.
The Court then evaluated plaintiffs' allegations of scienter and
concluded that they failed to support a strong inference of
scienter as to either the company itself or to the CEO or CFO, who
were alleged to have made the challenged statements. The Court
rejected plaintiffs' argument that the CFO's alleged attendance at
committee meetings designed to prevent "shrink" -- losses from
customer returns of products as well as theft and in-store damage
-- showed the CFO's knowledge of the alleged improper reselling,
including because there were no allegations that the scheme was
discussed at such meetings. Id. at *23. Moreover, with respect to
the CEO's alleged approval of bonuses relating to reduced "shrink,"
the Court discounted such allegations as they were attributed to a
confidential witness who was four levels of seniority below the
CEO, and there was no alleged basis for the confidential witness's
knowledge of the CEO's alleged approval of the bonuses. Id. at *24.
The Court also noted that even if the CEO had approved such
bonuses, issues of "shrink" involved a number of different issues
and not only issues relating to the alleged reselling practices.
Id.
The Court further rejected plaintiffs' argument that the CFO and
CEO must have known about the alleged scheme given their roles and
responsibilities. The Court explained that plaintiffs did not
allege how many used products were resold or reshelved, or that
reselling used products was critical to the company's operations.
Id. at *24-26. While the Court determined that the CEO and CFO were
"likely aware of [the company's] general problem with shrink," the
Court emphasized that "it does not follow that they must have been
aware that retail stores were combating it by selling used items,"
and plaintiffs failed to "quantify[] how significant the practice
actually was." Id. at *25. Thus, the Court concluded that, even if
the alleged reselling practice was widespread, it did not support a
strong inference of scienter as to the CEO and CFO because there
was "no alleged connection" between them and the alleged practice.
Id. at *26. Similarly, the Court rejected plaintiffs' contention
that the CEO and CFO had access to weekly reports that revealed
stores were reselling used products, noting that neither executive
was plausibly alleged to have reviewed those reports, and there was
no allegation explaining how the reports would have revealed the
alleged reselling practices. Id. at *27-28. In addition, the Court
rejected plaintiffs' allegations of scienter based on the CEO's and
CFO's stock sales. The Court concluded that those sales occurred
"shortly after announcements of quarterly results, a pattern that
appears benign on its face" and were not close in time to any other
significant event. Id. at *28-29.
Finally, the Court rejected plaintiffs' argument that scienter
should be imputed to the company based on the allegation that
employees other than the CEO and CFO were "aware of, and even
encouraged, the resale of used products." Id. at *30. The Court
explained that those employees' alleged knowledge could not be
imputed to the company because they were "not alleged to have had
any role in promulgating the alleged misrepresentations." Id. The
Court concluded that the "most cogent explanation for [the
company's] alleged conduct is that the resale of used product was
an unfortunate and unintentional byproduct of [the company's] focus
on reducing shrink," rather than something known by the executives
responsible for the alleged misstatements. Id. at *31. [GN]
UNITED STATES: Court Dismisses Ravi Suit for Lack of Jurisdiction
-----------------------------------------------------------------
In the case, TEJA RAVI, Plaintiff v. THE UNITED STATES, Defendant,
Case No. 20-1237C (Fed. Cl.), Judge Nancy B. Firestone of the U.S.
Court of Federal Claims issued an Opinion:
a. granting the government's motion to dismiss Plaintiff
Ravi's amended complaint for lack of subject matter
jurisdiction;
b. dismissing as moot the government's alternative motion for
summary judgment;
c. denying as futile Mr. Ravi's requests for further
discovery; and
d. denying as futile Mr. Ravi's motion to amend the complaint.
I. Introduction
Between 2018 and 2019, Plaintiff Teja Ravi, a citizen of India,
enrolled at and made tuition payments to the University of
Farmington. At the time of his enrollment, Mr. Ravi did not know
that the University of Farmington was a fictitious school staffed
and operated by agents from United States Immigration and Customs
and Enforcement (ICE) as part of an undercover law enforcement
operation whose purpose was to expose student visa fraud. In 2019,
after ICE ceased operating Farmington and began pursuing
enforcement actions, Mr. Ravi left the United States and returned
to India. In this action, Mr. Ravi seeks the return of his tuition
payments, alleging that the government breached a contract with him
when it did not provide him legitimate educational services.
Now pending before the Court are the government's motion to dismiss
Mr. Ravi's amended complaint, or, in the alternative, motion for
summary judgment, as well as Mr. Ravi's requests for additional
discovery and his motion to further amend his complaint.
II. Procedural Background
On Sept. 21, 2020, Mr. Ravi filed his initial complaint in this
court individually and on behalf of a class of similarly situated
Farmington students. According to Mr. Ravi, he understood the
University to be a legitimate educational institution and, by
paying tuition, he entered into a contractual relationship with the
government for educational services. Because the government never
provided those services, Mr. Ravi brings claims for breach of
contract and breach of the implied covenant of good faith and fair
dealing. Among other things, he seeks that the action be certified
as a class action, "compensatory, statutory and/or punitive
damages" for breach of contract, "fraud, negligent
misrepresentation and false promises," and "equitable monetary
relief, including restitution and disgorgement."
On Jan. 8, 2021, the government filed a motion to dismiss the
complaint under Rules 12(b)(1) and 12(b)(6) of the Rules of the
United States Court of Federal Claims (RCFC), arguing that Mr. Ravi
failed to sufficiently allege two elements required to establish a
valid contract with the government: That the government intended to
enter into an educational services contract with Mr. Ravi and that
the HSI agents running Farmington had actual authority to bind the
government in a contract for educational services. The government
also argues that Mr. Ravi's claims should be dismissed under the
sovereign capacity doctrine, which bars contract claims that arise
out of the government's sovereign actions.
After the government filed its motion to dismiss, on Jan. 28, 2021,
Mr. Ravi filed an amended complaint under RCFC 15(a)(1)(B). The
amended complaint reiterates the allegations of the original
complaint and adds allegations that the HSI personnel behind the
University "had actual authority to bind the government in
contract." The amended complaint also alleges that the government
"ratified" the contracts for educational services with Farmington
students when it "accepted the benefit of the contracts by keeping
all tuition money paid by Plaintiff and class members under the
contracts."
After the government filed its reply brief in support of its motion
to dismiss, the Court held a status conference and ordered Mr. Ravi
to file a supplemental brief regarding whether Mr. Ravi, as a
citizen of India, had standing to sue under the Reciprocity Act, 28
U.S.C. Section 2502. The Reciprocity Act grants plaintiffs who are
citizens of a foreign government the right to sue the United States
in its courts only if a reciprocal right is afforded to an American
citizen in the plaintiff's country. In his supplemental briefing,
Mr. Ravi argues, and the government agrees, that the Reciprocity
Act does not bar his claims.
The Court also ordered the government to file a supplemental brief
in support of its motion to dismiss or, in the alternative, a
motion for summary judgment. It directed the government to address
in its supplemental briefing a variety of topics, including "the
statutory basis for the University of Farmington undercover
operation and whether that operation was certified under the
relevant statutes," whether the alleged educational services
contract with Mr. Ravi was illegal and unenforceable, and whether
the HSI agents operating the University of Farmington had the
authority to bind the United States to an educational services
contract with Mr. Ravi.
In its supplemental briefing, the government argues that Mr. Ravi's
amended complaint should be dismissed or summary judgment should be
granted in the government's favor for three reasons: (1) the
sovereign capacity doctrine bars Mr. Ravi's claims because those
claims arise out of a certified undercover law enforcement action;
(2) Mr. Ravi cannot plead or prove a mutuality of intent to
contract or that HSI agents had the necessary authority to bind the
United States to a contract for educational services; and (3) Mr.
Ravi knew his conduct was illegal, and, therefore the doctrine of
in pari delicto bars him from obtaining assistance from the Court
to recover his tuition money. The government attached to its
supplemental brief evidence in support of these arguments,
including affidavits from ICE personnel and the required
certification documents for the Farmington undercover operation.
Supplemental briefing on the government's motion to dismiss, or, in
the alternative, for summary judgment was completed on Oct. 8,
2021. Oral argument was held on Jan. 13, 2022, and the government's
motion is now pending.
Two other matters are also before the Court. First, Mr. Ravi makes
a request in his supplemental briefing for further discovery, which
the government opposes. Second, one day before oral argument, Mr.
Ravi moved to amend his complaint to add another named Plaintiff.
Pursuant to the Court's Jan. 12, 2022 order, the government at oral
argument opposed the motion to amend.
III. Discussion
Although the parties agree on this point, Judge Firestone first
addresses whether the Reciprocity Act bars Mr. Ravi's claims. She
then turn to the government's motion to dismiss, or, in the
alternative, motion for summary judgment. Finally, she addresses
Mr. Ravi's request for additional discovery and Mr. Ravi's motion
to amend his complaint to add another named plaintiff.
A. The Reciprocity Act Does Not Bar Mr. Ravi's Contract Claims
Because Mr. Ravi is a citizen of India, he must meet the
requirements of the Reciprocity Act, 28 U.S.C. Section 2502, in
order to pursue his claims before this court. Under the Reciprocity
Act, "citizens or subjects of any foreign government which accords
to citizens of the United States the right to prosecute claims
against their government in its courts may sue the United States in
the United States Court of Federal Claims if the subject matter of
the suit is otherwise within such court's jurisdiction." The Act
"burdens alien plaintiffs who invoke the process of the Court of
Federal Claims with showing that their home courts treat natives
and American citizens equally when they adjudicate claims brought
against their home countries."
Judge Firestone agrees with Mr. Ravi and the government that Mr.
Ravi has satisfied the requirements of the Reciprocity Act. She
finds that Mr. Ravi provides an affidavit from an experienced
Indian attorney who is an Assistant Professor at a leading law
school in India explaining that "an American citizen has a right to
sue the Indian government in its courts under the existing
constitutional as well as statutory scheme in India." In support,
Mr. Ravi's supplemental brief and attached affidavit cite the
Indian Constitution, Indian Civil Procedure Code Sections 9, 79,
and 83, and case law. Taken together, these sources of law
demonstrate that the Act does not bar Mr. Ravi's claims. Hence, the
Reciprocity Act does not bar Mr. Ravi's contract claims in the
Court.
B. The Sovereign Capacity Doctrine Bars Mr. Ravi's Contract Claims
While the government has moved to dismiss Mr. Ravi's contract
claims, or for summary judgment, on three grounds, Judge
Firestone's Opinion focuses only on the government's argument based
on the sovereign capacity doctrine that Mr. Ravi's claims should be
dismissed for lack of subject matter jurisdiction under RCFC
12(b)(1). A
Under the sovereign capacity doctrine, Judge Firestone opines that
the Court must dismiss Mr. Ravi's contract claims. The central
question in the case is whether the government was acting in its
sovereign or proprietary capacity when it entered into the alleged
contract with Mr. Ravi for educational services.
Judge Firestone concludes that Mr. Ravi's claims are barred by the
sovereign capacity doctrine and must be dismissed for lack of
subject matter jurisdiction. The undisputed facts demonstrate that
the government was acting in its sovereign capacity when it
allegedly entered into an educational services contract with Mr.
Ravi. Specifically, the allegations in Mr. Ravi's amended complaint
and the undisputed evidence submitted by the government during
supplemental briefing demonstrate that the alleged educational
services contract was made in furtherance of an undercover law
enforcement operation, a sovereign action. The undisputed evidence
provided by the government likewise shows that the government was
acting in its sovereign capacity when undercover agents enrolled
Mr. Ravi at Farmington and accepted his tuition payments.
In sum, the purported educational services contract on which Mr.
Ravi bases his contract claims arises out of a government law
enforcement operation, a sovereign action. Under the sovereign
capacity doctrine, the Court lacks jurisdiction over Mr. Ravi's
contract claims, which must be dismissed under RCFC 12(b)(1). Judge
Firestone does not address the government's other grounds for
dismissal or summary judgment, and the government's alternative
motion for summary judgment is dismissed as moot.
C. Mr. Ravi's Request for Additional Discovery is Denied as Futile
Although he has not made a formal motion, Mr. Ravi throughout his
supplemental response brief requests that the Court orders
additional discovery before ruling on the government's alternative
motion for summary judgment so that Mr. Ravi may explore certain
material facts that he argues are disputed. The government opposes
Mr. Ravi's request because additional discovery would be futile.
Judge Firestone agrees with the government. She finds that r. Ravi
fails to satisfy the requirements of RCFC 56(d). To begin, Mr. Ravi
has not complied with the Rule's procedural requirements. He has
not provided an affidavit in support of the requests. In addition,
Mr. Ravi's requests for discovery would be futile in light of the
Court's holding that the sovereign capacity doctrine presents a
jurisdictional bar to his contract claims. Based these undisputed
facts, the Court lacks jurisdiction over Mr. Ravi's contract claims
under the sovereign capacity doctrine. Judge Firestone therefore
denies Mr. Ravi's discovery requests as futile.
D. Mr. Ravi's Motion to Amend His Complaint is Denied as Futile
Finally, Mr. Ravi has filed a motion to amend his complaint in
order to add an additional lead Plaintiff, Swetha Batchu. Mot. to
Amend. at 1. Mr. Ravi asserts that "Ms. Bachu is one of the many
who never received educational services after she accepted an offer
to pay tuition money in exchange for an accredited educational
program." Id. Mr. Ravi argues that allowing him to add an
additional lead plaintiff years into this case "would serve justice
and promote judicial efficiency." Id.
The government opposes this motion. Tr. 20-23. First, the
government argues that "the sovereign capacity bar" is decisive,
"and if the case is resolved" on that ground, "adding a party is
futile." Second, the government contends that "there is unfair
prejudice and undue delay" in Mr. Ravi's request. Finally, the
government asserts that the motion to amend "seems to be an attempt
to prolong" proceedings at a time when the court "is clearly ready
to make a decision," which is improper. Mr. Ravi did not file a
reply.
Judge Firestone agrees with the government and will deny Mr. Ravi's
motion to amend as futile. Mr. Ravi seeks to amend his complaint to
add an additional plaintiff who will assert contract claims for
educational services with the government based on the government's
law enforcement activities during Operation Paper Chase. However,
the Court has held that it lacks jurisdiction over such claims
under the sovereign capacity doctrine. Because the Court would lack
jurisdiction over any such claims regardless of the named
plaintiff, Mr. Ravi's proposed amendment would be futile, and his
motion to amend his complaint is therefore denied.
IV. Conclusion
For the reasons she discussed, Judge Firestone granted the
government's motion to dismiss for lack of subject matter
jurisdiction under CFC 12(b)(1). She dismissed as moot the
government's alternative motion for summary judgment. Mr. Ravi's
requests for further discovery are denied. His motion to amend the
complaint is also denied. The Clerk is directed to enter judgment
accordingly.
A full-text copy of the Court's March 25, 2022 Opinion is available
at https://tinyurl.com/bdef8amt from Leagle.com.
Amy E. Norris -- amy@norrislawgroup.org -- in Washington, D.C., for
the Plaintiff.
Meen Geu Oh, Civil Division, United States Department of Justice,
in Washington, D.C., with whom were Brian M. Boynton, Acting
Assistant Attorney General, Martin F. Hockey, Jr., Acting Director,
and Eric P. Bruskin, Assistant Director, for the Defendant.
USI INSURANCE: New York Court Dismisses Cunningham ERISA Class Suit
-------------------------------------------------------------------
In the case, LAUREN CUNNINGHAM, individually and as a
representative of a class of participants and beneficiaries in and
on behalf of the USI 401(k) Plan, Plaintiff v. USI INSURANCE
SERVICES, LLC, BOARD OF DIRECTORS OF USI INSURANCE SERVICES, LLC,
USI 401(K) PLAN COMMITTEE, and JOHN and JANE DOES 1-30, Defendants,
Case No. 21 Civ. 1819 (NSR) (S.D.N.Y.), Judge Nelson S. Roman of
the U.S. District Court for the Southern District of New York
granted the Defendants' motion to dismiss the Plaintiff's
complaint.
I. Introduction
Plaintiff Cunningham, a participating employee of the USI 401(k)
Plan, brings the putative class action under the Employee
Retirement Income Security Act ("ERISA"), 29 U.S.C. Section 1132,
against Defendants USI, its Board of Directors, the USI 401(k) Plan
Committee, and John and Jane Does 1-30. She alleges that the
Defendants breached their fiduciary duties of prudence and loyalty,
and failed to adequately monitor other fiduciaries, by employing
USI Consulting Group ("USICG"), their own subsidiary, to provide
retirement plan services ("RPS") to participating employees of the
Plan and allowing USICG to charge excessive fees for such services.
Presently pending before the Court is the Defendants' motion to
dismiss the Plaintiff's Complaint under Federal Rule of Civil
Procedure 12(b)(6).
II. Background
USI offers its employees the Plan, a 401(k)-savings plan designed
to provide them with a vehicle to invest for retirement. The Plan
is a defined contribution retirement plan in which participants
contribute a percentage of their earnings through an individual
account. The ultimate retirement benefit provided to Plan
participants depends on the performance of investment options held
within the account, net fees, and expenses.
USI is the Plan's sponsor and administrator, as well as a fiduciary
because it is responsible for the administration and operation of
the Plan and has discretion to control its operation. The Plan
Committee is also designated as an administrator and another
fiduciary responsible for day-to-day administration and operation
of the Plan. The Board appoints the members of the Plan Committee
and has authority to terminate the Plan. On information and belief,
the Board and its members, in their individual capacities,
exercised authority and control over Plan management and its assets
since at least 2015, and thus are [also] Plan fiduciaries." The
Defendants selected USICG, a subsidiary of USI, to serve as the
Plan's recordkeeper to provide RPS to participating employees.
USCIG assessed and charged the fees associated with its RPS to the
Plan participants.
The Plaintiff alleges that the Defendants failed to prudently and
loyally monitor the Plan's RPS expenses, instead allowing the Plan
to pay USICG nearly three times what a prudent and loyal fiduciary
would have paid for such services. Specifically, she claims that
Plan participants pay USICG excessive RPS fees because it extracts
these fees directly from their accounts, as well as indirectly
through the investment options that contain revenue sharing. She
claims that the Plan is paying more for RPS provided by USICG than
other smaller plans, and that USICG's fees were excessive "when
compared with other similar-sized plans receiving materially the
same services." These excessive RPS fees led to lower net returns,
eating into, and substantially reducing the retirement savings of
Plaintiff and other Plan participants, resulting in millions of
dollars in additional losses to them, to the benefit of USI.
On March 2, 2021, the Plaintiff filed the instant Complaint. On
April 19, 2021, the Defendants sought leave to file a motion to
dismiss, which the Court subsequently granted and issued a briefing
schedule. On July 8, 2021, the parties filed their respective
briefing on the instant motion: The Defendants their notice of
motion, memorandum in support, declaration with accompanying
exhibits and reply; and the Plaintiffs their response in opposition
and a declaration with accompanying exhibits.
III. Discussion
The Plaintiff asserts claims under ERISA against the Defendants for
breach of the duties of prudence and loyalty, and for failure to
adequately monitor other fiduciaries. The Defendants seek to
dismiss all three claims against them for failure to state a claim.
Specifically, they argue that: (1) the Plaintiff disregards the
pleading requirement that a claim for breach of the duty of
prudence premised on excessive fees must establish that the fees
were excessive relative to the specific services rendered; (2) the
Plaintiff's claim for breach of the duty of loyalty fails because
the allegations underlying that claim represent a mere repackaging
of the "excessive fee" allegations; and (3) the Plaintiff's claim
for failure to monitor fails because it is premised on her futile
claim for breach of duty of prudence.
A. Breach of the Duty of Prudence
The Plaintiff circumstantially alleges that the Defendants breached
their duty of prudence because they failed to monitor the Plan's
RPS expenses, instead allowing the Plan to pay USICG nearly three
times what a prudent fiduciary would have paid for such services.
In support, the Complaint provides a table compiled of data from
the 2018 Form 55001 filings of several "comparable" retirement
savings plans. In this table, the Plaintiff identifies 10 plans
with a range of different number of participants, assets,
recordkeeping and administrative ("RK&A") price, and RK&A price per
participant. Ultimately, the table shows that while the other
plans' RK&A price per participant range between $28 and $53, the
one for the Plan is $109.
But the Defendants argue that the Plaintiff fails to sufficiently
allege that the Plan's RPS fees were excessive in relation to the
specific services USICG provides to the Plan. They argue that while
the Plaintiff's excessive fee allegations attempt to compare these
other "cherry-picked 401(k) plans" with the Plan based on certain
figures, the Plaintiff fails to allege how these retirement savings
plans are comparable in the services they render as required by
Young v. General Motors Investment Management Group, 325 F. App'x
31 (2d Cir. 2009). In short, they contend that for the Plaintiff to
state a claim, she "must allege facts from which one could infer
the same services were available for less on the market."
Judge Roman opines that the Complaint's allegations fail because
the Plaintiff fails to allege first, how she calculated the Plan's
the sum of the direct and indirect fees from the Form 5500 filings,
nd second, how the sum of those fees is excessive in relation to
the specific services USICG provides to the Plan by pleading other
plans with "similar service disclosures on their Form 5500s."
Accordingly, he dismisses the Plaintiff's claim for breach of the
duty of prudence without prejudice.
B. Breach of the Duty of Loyalty
The Plaintiff next claims that the Defendants breached their duty
of loyalty by employing their own subsidiary, USICG, as the Plan's
recordkeeper, and allowing the Plan to pay USICG "multiples of the
reasonable per-participant amount for the Plan's RPS fees" at the
expense of the Plan participants and for the Defendants' own
benefit. But the Defendants contend that the Plaintiff's claim for
breach of the duty of loyalty fails because it is duplicative of
her claim for the breach of the duty of prudence.
After due consideration, Judge Roman agrees with the Defendants. He
opines that the Plaintiff's allegations relating to her claim for
breach of the duty of loyalty and those relating to her claim for
breach of the duty of prudence closely mirror each other. In
effect, even when construing the Complaint in the light most
favorable to her, the Plaintiff's claim for breach of the duty of
loyalty appears intrinsically dependent on her claim for breach of
the duty of prudence. In other words, if the Plaintiff's claim for
breach of the duty of prudence fails, then her claim for breach of
duty of loyalty will also consequently fail. Thus, because the
Plaintiff essentially "recast[s] purported breaches of the duty of
prudence as disloyal acts," she fails to sufficiently state a claim
for breach of the duty of loyalty. Accordingly, the Plaintiff's
claim for breach of the duty of loyalty is dismissed without
prejudice.
C. Plaintiff's Claim for Failure to Monitor
Lastly, the Plaintiff alleges that Defendants failed to monitor
other fiduciaries because they failed to: (i) evaluate the
performance of individuals responsible for RPS fees for the Plan;
(ii) monitor the process by which the Plan RPS provider was
evaluated and investigate the availability of lower-cost RPS; and
(iii) remove individuals responsible for RPS fees whose performance
was inadequate in that these individuals permitted the USI Plan to
pay the same RPS fees notwithstanding the purported availability of
less expensive options. In other words, as the Defendants correctly
point out, the Plaintiff's claim for failure to monitor is
premised, once again, on her claim that Defendants breached their
duty of prudence.
Judge Roman opines that because "a claim for breach of the duty to
monitor requires an antecedent breach to be viable," and the
Plaintiff fails to sufficiently state a claim that Defendants
breached either their duties of prudence and loyalty, he concludes
that the Plaintiff's claim for failure to monitor also fails.
Therefore, he dismisses the entirety of the Plaintiff's Complaint.
IV. Conclusion
For the foregoing reasons, Judge Roman granted the Defendants'
motion to dismiss and dismissed the Plaintiff's Complaint without
prejudice. The Plaintiff is granted leave to file an Amended
Complaint. If the Plaintiff chooses to do so, she will have until
May 20, 2022, to file an Amended Complaint. The Defendants are then
directed to answer or otherwise respond by June 20, 2022. If the
Plaintiff fails to file an Amended Complaint within the time
allowed, and she cannot show good cause to excuse such failure, any
claims dismissed without prejudice by this opinion and order may be
deemed dismissed with prejudice. The Clerk of Court is directed to
terminate the motion at ECF No. 30.
A full-text copy of the Court's March 25, 2022 Opinion & Order is
available at https://tinyurl.com/ycxuc4k3 from Leagle.com.
VERTIV HOLDINGS: Bernstein Liebhard Reminds of May 23 Deadline
--------------------------------------------------------------
Bernstein Liebhard LLP on April 4 disclosed that a securities class
action lawsuit has been filed on behalf of investors who purchased
or acquired the securities of Vertiv Holdings Co between April 28,
2021 and February 23, 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.
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." Its offerings include power
management products, thermal management products, integrated rack
systems, modular solutions, and management systems for monitoring
and controlling digital infrastructure.
On February 23, 2022, at 6:00 a.m. Eastern, 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 Company's stock price fell $7.19 per share, or
almost 37%, to close at $12.38 per share on February 23, 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 the Company could not adequately respond to
supply chain issues and inflation by increasing its prices; (2)
that, as a result of the increasing costs, Vertiv's earnings would
be adversely impacted; and (3) 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 23, 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 VRT securities, and/or would like to discuss your
legal rights and options please visit Vertiv Holdings Co
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.
Contact Information:
Peter Allocco
Bernstein Liebhard LLP
https://www.bernlieb.com
(212) 951-2030
pallocco@bernlieb.com
URL: http://bernlieb.com
Peter Allocco
Bernstein Liebhard LLP
https://www.bernlieb.com
(212) 951-2030
pallocco@bernlieb.com [GN]
WOODMAN'S FOOD: Wyngaard, Hunter, & Robertson Suits Consolidated
----------------------------------------------------------------
In the case, JESSE WYNGAARD, Plaintiff v. WOODMAN'S FOOD MARKET,
INC., Defendant, Case No. 19-cv-493-pp (E.D. Wis.), Judge Pamela
Pepper of the U.S. District Court for the Eastern District of
Wisconsin granted the parties' joint motion to consolidate the case
with Robertson, et al. v. Woodman's Food Market, Inc., Case No.
22-cv-207-WED (E.D. Wis. 2022), for all pretrial proceedings
I. Background
On April 5, 2019, Plaintiff Wyngaard filed a collective and class
action complaint against Woodman's under the Fair Labor Standards
Act (FLSA) and Wisconsin's Wage Payment and Collection Laws
(WWPCL). Later, the Court granted the Defendant's motion to
consolidate the case with another, Hunter, et al. v. Woodman's Food
Market, Inc., Case No. 21-cv-94, ordering the two cases
consolidated through resolution of summary judgment.
The July 6, 2021 second amended complaint brought by Hunter and
Beegun in the Hunter case asserted nine claims: (1, 4) an FLSA
claim and a WWPCL claim that the Defendant did not properly
compensate employees for overtime by failing to treat rest breaks
of short duration and/or meal periods lasting less than 30
consecutive minutes as compensable time; (2, 5, 7 and 8) an FLSA
claim, a WWPCL claim, an Illinois Wage Payment and Collection Act
(IWPCA) claim and an Illinois Minimum Wage Law (IMWL) claim that
the Defendant did not properly compensate employees for overtime in
the form of shaving time for pre-shift, in-shift and post-shift
work performed while 'clocked in' via Defendant's electronic
timekeeping system; and (3, 6 and 9) an FLSA claim, a WWPCL claim
and a IMWL claim that the Defendant failed to properly compensate
employees for overtime pay by failing to include non-discretionary
compensation such as monetary bonuses, incentives, awards and other
rewards and payments in the regular rates of pay for overtime
calculation purposes
Both cases involve claims that the Defendant failed to include
bonuses and other monetary forms of non-discretionary compensation
in the plaintiffs' pay for the purposes of calculating overtime.
The differences in those claims between the two cases are the time
frames (April 2016/2017 to April 2019 for the case and various
dates between Jan. 22, 2018 and the present in the Hunter case) and
the fact that the Hunter plaintiffs bring claims under federal,
Wisconsin and Illinois law while the plaintiff in Wyngaard brings
claims only under federal and Wisconsin law. These claims involve a
common question of fact--whether the defendant failed to include
the non-discretionary compensation in the employees' pay for the
purposes of calculating overtime between April 2016 and the
present. The legal analysis of that question of fact would appear
to be the same for the federal and Wisconsin claims in both cases;
it might be slightly different for the Illinois claim in the Hunter
case.
Both cases involve claims that the Defendant failed to pay
employees overtime for meal periods less than 30 minutes in
duration. But the Hunter case also includes a claim that the
defendant failed to pay employees overtime for less-than-standard
rest breaks. And the time frames are different -- April 2016/2017
through April 2019 for Wyngaard and April 4, 2019 to Jan. 22, 2021
for Hunter. These claims do involve a common question of fact --
whether the Defendant failed to pay overtime for meal periods less
than thirty minutes in duration—but the factual claims are not
fully congruent. The time frames, while different, are contiguous.
The questions of law likely are the same under federal and
Wisconsin law and perhaps slightly different under Illinois law.
The parties since have filed a joint motion to consolidate these
cases with a third one, Robertson, et al. v. Woodman's Food Market,
Inc., Case No. 22-cv-207-WED (E.D. Wis. 2022), for all pretrial
proceedings.
The amended complaint in Robertson brings collective and class
action claims against the defendant under the Fair Labor Standards
Act of 1938 (FLSA), Illinois' Minimum Wage Law, 820 ILCS 105/12, et
seq. (IMWL), Illinois' Wage Payment and Collection Act, 820 ILCS
115/1, et seq., Ill. Admin. Code 300, et seq. (IWPCA) and Fed. R.
Civ. P. 23. Robertson and another plaintiff, Ray Barnes, bring the
claim on behalf of themselves and all others similarly situated
"for unpaid overtime compensation and unpaid agreed upon wages."
Specifically, the Robertson plaintiffs assert five claims against
the Defendants: Claims One, Three and Four: a FLSA, an IWPCA and an
IMWL claim alleging that the Defendant operated a system that
shaved time from employees' timesheets; and Claims Two and Five: a
FLSA and an IMWL claim for an unlawful compensation that failed to
include all forms of non-discretionary compensation, such as
monetary bonuses, incentives, awards, and/or other rewards and
payments. The claims relate to the time period from Jan. 23, 2021
to the present. The plaintiffs filed the Robertson complaint on
Dec. 13, 2021, over two and a half years after the Plaintiffs filed
the complaint in Wyngaard.
II. Analysis
A. Court's Findings
Judge Pepper finds that the cases involve common issues of law and
fact. The claims in Robertson relating to bonuses and other
monetary forms of non-discretionary compensation are similar to the
claims in Wyngaard and Hunter. The time shaving claim in Robertson
is nearly identical to the time shaving claim in Hunter. The time
frame in Robertson tracks the time frame in Hunter; both cases
involve Illinois law.
The parties in Wyngaard and Hunter have progressed little since the
court consolidated those cases. There is no reason to require them
to proceed separately from Robertson for the purposes of discovery.
It is in the interest of judicial economy to streamline the
discovery process through consolidation and the parties' decision
to jointly bring this motion demonstrates that there is no
prejudicial effect from consolidating the three cases. The parties
ask that the court consolidate Robertson with Wyngaard and Hunter
for only for pretrial proceedings, so Judge Pepper need not analyze
the potential for jury confusion.
She grants the parties' joint motion to consolidate Robertson under
Wyngaard, Case No. 19-cv-493, and Hunter, Case No. 21-cv-94. The
cases will be consolidated through dispositive motions.
B. Other Pending Motions
Prior to the Defendant's motion to consolidate Wyngaard and Hunter,
the parties had filed several motions in Wyngaard. Wyngaard had
filed three motions to compel, a motion to certify a Rule 23 class
and another to certify collective class, a motion for leave to file
excess pages, and a motion to restrict. The Defendant had filed a
motion for protective order to stay discovery and amend the prior
scheduling order.
Plaintiff Wyngaard's motion to restrict asked the Court to restrict
certain documents to the case participants and the Court because
the documents, or parts of them, had been designated by the
Defendant as confidential under the protective order the Court
issues in November 2019. The Plaintiff asked the Court to restrict
access, "at least on a temporary basis, to afford Defendant the
opportunity to motion this Court to limit further access, if
desired." The Plaintiff identified 25 documents -- over 550 pages
in all -- that he asked the Court to restrict.
Judge Pepper finds that Wyngaard's motion states only that the
court should restrict over 550 pages of documents because the
Defendant designated them confidential under the protective order.
It does not contain the required certification showing that the
parties conferred in an effort to avoid the motion or limit the
number of documents covered by the motion. Neither party has stated
good cause for restricting the documents. Judge Pepper denies the
motion without prejudice. Any party may seek to renew the motion,
if that party can show good cause for restricting some or all the
documents. The Clerk of Court must continue to restrict access to
the documents at Dkt. No. 68 until further order of the court.
As to the other pending motions, in its Dec. 20, 2021 order
consolidating Wyngaard and Hunter, the Court noted the pending
discovery motions. It stated that if the parties were not able to
resolve their disputes by the deadline the court set for filing a
Rule 26(f) plan for the consolidated cases (30 days after the date
on which the defendant answered the second amended complaint), it
would confer with the magistrate judge to determine which court
could most expeditiously resolve the motions. The Ccourt ordered
that within 30 days of the Defendant filing its answer to the
second amended complaint, the parties must file a joint Rule 26(f)
report and should advise the Court whether it needed to schedule a
hearing on the pending motions.
Instead of the Defendant filing its answer to the second amended
complaint and the parties filing a joint Rule 26(f) plan, the
parties filed the motion to consolidate Robertson. They also filed
a status report. The report indicates that the Defendant will file
its answer to the first amended complaint in Robertson within 14
days of any order consolidating Robertson with Wyngaard and Hunter
and that they will file a joint motion for conditional
certification "of the federal claims in Hunter and Robertson"
within 21 days of any consolidation order. The parties ask the
Court to allow them to file a Rule 26(f) report for the
consolidated matters within 14 days after the defendant answers the
first amended complaint in Robertson. The status report, however,
makes no reference to the pending discovery motions. Nor does it
indicate whether Wyngaard plans to withdraw his motions to certify
Rule 23 and collective classes.
Judge Pepper denies all of these pending motions without prejudice.
Once the Defendant has answered or otherwise responded in Robertson
and the parties have filed their Rule 26(f) plan for the
consolidated cases, they may file any discovery motions that are
necessary. Judge Pepper strongly urges the parties to work to
resolve any discovery disputes before involving the Court, and to
comply with the requirements of Civil L.R. 37 if they do decide to
file discovery motions.
III. Conclusion
Judge Pepper granted the parties' joint motion to consolidate
Robertson, et al. v. Woodman's Food Market, Inc., Case No.
22-cv-207-WED, with Wyngaard v. Woodman's Food Market, Inc., Case
No. 19-cv-493-pp and Hunter, et al. v. Woodman's Food Market, Inc.,
Case No. 21-cv-94-pp.
Under Civil Local Rule 42(b) (E.D. Wis.), she ordered that the
three cases are consolidated through ruling on summary judgment or
other dispositive motions. She ordered that the Clerk of Court must
place a notation on the docket for Case No. 22-cv-207, reminding
interested parties to check the docket for Case No. 19-cv-493.
By the end of the day on April 8, 2022, the Defendant must answer
or otherwise respond to the amended complaint in Robertson, Case
No. 22-cv-207. Wthin 14 days of the date of the Defendant's
response to the amended complaint in Robertson, Case. No.
22-cv-207, the parties must file a Rule 26(f) report for the
consolidated cases. By the end of the day on April 22, 2022, the
parties must file a joint motion for conditional certification.
Judge Pepper denied Plaintiff Wyngaard's Rule 7(h) motion to compel
answers and responses to the Plaintiff's first set of discovery.
Judge Pepper denied without prejudice Plaintiff Wyngaard's Rule
7(h) motions to compel answers and responses to his second set of
discovery and to compel the defendant to produce Ms. Kristin Popp
at a deposition.
The Defendant's Rule 7(h) motion for protective order to stay
discovery and to amend scheduling order is denied as moot.
She denied without prejudice Plaintiff Wyngaard's motion to certify
Rule 23 class, motion to certify collective class, and motion for
leave to file excess pages.
She denied without prejudice Plaintiff Wyngaard's motion to
restrict. Any party may seek to renew the motion. She ordered that
the Clerk of Court must continue to restrict the documents at Dkt.
No. 68 until further order of the Court.
A full-text copy of the Court's March 25, 2022 Order is available
at https://tinyurl.com/fyhee624 from Leagle.com.
[*] Epstein Becker Attorney Discusses Arbitration Pros, Cons
------------------------------------------------------------
Michael Kun, Esq., of Epstein Becker & Green, in an article for
JDSupra, reports that in a recent post addressing the U.S. Supreme
Court oral argument in Viking River Cruises v. Moriana, we
mentioned that employers in California will want to consider the
"pros and cons" of arbitration agreements should an
employer-friendly decision be issued in that case, rather than rush
to implement them.
In response, more than a few people have asked the same or similar
questions -- What are the "cons" of arbitration agreements? Why
wouldn't an employer want to use arbitration agreements,
particularly if they will foreclose Private Attorney General Act
("PAGA") actions in California?
There are "cons" to these agreements -- and they are not
insignificant.
Because of these "cons," many employers across the country have
chosen not to implement arbitration agreements. And many employers
in California will likely choose not to implement them even if an
employer-friendly decision is issued in Viking River Cruises.
Perhaps this chart of the "pros" and "cons" will be helpful.
Pros
Class, collective and representative actions
Pros
These types of large-scale actions with great potential exposure
should be foreclosed (unless there are issues with contract
formation or interpretation, the requisite FAA "interstate
commerce" is not involved, or the FAA's transportation exception
applies)
Cons
The possibility of hundreds or thousands of costly individual
arbitrations (the "Door Dash" phenomenon)
Jury
Pros
Avoiding the unpredictability of a jury
Avoiding a decision driven by jury sympathy
Avoiding the possibility of the "runaway jury
Cons
Arbitrators can be unpredictable, too
Arbitrators can be sympathetic, too
The possibility of the "runaway arbitrator" whose award will likely
be exceedingly difficult to challenge because of the limited appeal
rights (see below) – like the California arbitrator who awarded a
plaintiff $4.1 billion in a wrongful termination case
Appeal
Pros
Limited appeal rights mean that a favorable decision will likely be
final, such that the employer is likely to avoid additional
attorney's fees and time
Cons
Limited appeal rights mean that an unfavorable opinion will likely
be final, too
Discovery and motions
Pros
There could be less discovery and more limited motions practice in
arbitration
Cons
Depending on the arbitration agreement, the arbitration service and
the arbitrator, discovery and motions practice in arbitration could
be the same as in court
Attorney's Fees and Costs
Pros
Attorney's fees and costs can be less if there is less discovery
and motions practice than in court
Limited appeal rights mean that appellate fees and costs typically
will be avoided
Cons
Attorney's fees can be virtually the same as they would be in court
depending on the amount of discovery and motions practice
Arbitration costs can be substantial, all for activities that a
judge would perform without additional cost to the employer
Arbitrator's fees for a single-plaintiff case can exceed $100,000
There will be fees for all of the arbitrator's activities,
including conferences, reviewing briefs, conducting hearings and
issuing orders
Employees and their counsel can purposefully drive up fees and
costs by taking positions that require the arbitrator to intervene
Settlement
Pros
The fact that they will not reach a jury could incentivize
employees and their counsel to be more reasonable in settlement
discussions
Cons
The fact that employers will have to incur significant arbitration
costs may encourage employees and their counsel to be more
unreasonable in settlement discussions (e.g., "You're going to have
to pay the arbitrator $100,000 in any event. You might as well give
that to us now and avoid paying more attorney's fees.")
Employer morale and union organizing effects
Pros
None
Cons
Mandatory arbitration agreements could create morale issues, which
in turn could lead to attrition
Mandatory arbitration agreements can be an issue that unions will
highlight in organizing efforts [GN]
[^] CLASS ACTION Money & Ethics Conference on May 2 - Be A Speaker
------------------------------------------------------------------
Beard Group, Inc. is hosting the 6th Annual Class Action Money &
Ethics Conference on Monday, May 2nd.
The conference will be held in person at The Harmonie Club in
Manhattan. Major sponsors include Baird Mandalas Brockstedt LLC,
and Schochor, Federico and Staton, P.A.
Showcase your firm's expertise on a panel in front of class action
attorneys, general counsel, litigation financiers, consultants,
claims administrators, reporters and academics.
Speakers include:
Eduard Korsinsky, Managing Partner, Co-Founder of Levi &
Korsinsky LLP / CORE Monitoring Systems LLC
Kevin Laukaitis, Partner, Shub Law Firm LLC
Thomas Rohback, Partner Axinn, Veltrop & Harkrider LLP
Angelo A. Stio III, Partner, Troutman Pepper Hamilton Sanders
LLP
Moderators are:
Deborah E. Jennings, Former Senior Partner, DLA Piper
Chase T. Brockstedt, Partner, Baird Mandalas Brockstedt, LLC
Philip C. Federico, Founding and Senior Partner, Schochor,
Federico and Staton, P.A
The Honorable Benson E. Legg, Former Chief Judge, United
States District Court for the District of Maryland
The Honorable Irma S. Raker, Former Judge, Court of Appeals of
Maryland
For sponsorship options and details, contact:
Bernard Toliver, CMP
Tel: (240) 629-3300 ext. 149
E-mail: bernard@beardgroup.com
For more conference information, visit us at
https://www.classactionconference.com/
*********
S U B S C R I P T I O N I N F O R M A T I O N
Class Action Reporter is a daily newsletter, co-published by
Bankruptcy Creditors' Service, Inc., Fairless Hills, Pennsylvania,
USA, and Beard Group, Inc., Washington, D.C., USA. Rousel Elaine T.
Fernandez, Joy A. Agravante, Psyche A. Castillon, Julie Anne L.
Toledo, Christopher G. Patalinghug, and Peter A. Chapman, Editors.
Copyright 2022. All rights reserved. ISSN 1525-2272.
This material is copyrighted and any commercial use, resale or
publication in any form (including e-mail forwarding, electronic
re-mailing and photocopying) is strictly prohibited without prior
written permission of the publishers.
Information contained herein is obtained from sources believed to
be reliable, but is not guaranteed.
The CAR subscription rate is $775 for six months delivered via
e-mail. Additional e-mail subscriptions for members of the same
firm for the term of the initial subscription or balance thereof
are $25 each. For subscription information, contact
Peter A. Chapman at 215-945-7000.
*** End of Transmission ***